Page Range | 47001-47283 | |
FR Document |
Page and Subject | |
---|---|
81 FR 47283 - Honoring the Victims of the Attack in Nice, France | |
81 FR 47181 - Sunshine Act Meeting; National Science Board | |
81 FR 47179 - Sunshine Act Meeting | |
81 FR 47183 - Proposed Collection; Comment Request | |
81 FR 47171 - Deletion of Items From Sunshine Act Meeting | |
81 FR 47176 - Tribal Consultation and Listening Sessions on Indian Trust Asset Reform Act | |
81 FR 47042 - 2-Propenoic Acid, Butyl Ester, Polymer With Ethenyl Acetate and Sodium Ethenesulfonate; Tolerance Exemption | |
81 FR 47150 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities | |
81 FR 47170 - Sulfoxaflor; Receipt of Application for Emergency Exemption, Solicitation of Public Comment | |
81 FR 47152 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Amendment 19 to the Atlantic Sea Scallop Fishery Management Plan | |
81 FR 47045 - Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability; Correcting Amendment | |
81 FR 47009 - Changes to the Application Requirements for Authorization To Operate in Reduced Vertical Separation Minimum Airspace | |
81 FR 47237 - Agency Information Collection Activities: Submission for OMB Review; Joint Comment Request | |
81 FR 47181 - Board Meeting; August 24, 2016-DOE Work on Integrating Different Canister Designs for Storage and Disposal of SNF | |
81 FR 47235 - Notice of Receipt of Application for a Presidential Permit for the Pembina-Emerson Land Port of Entry Expansion Project on the U.S.-Canada Border at Pembina, North Dakota, and Emerson, Manitoba, Canada | |
81 FR 47178 - Agency Information Collection Activities; Proposed Collection, Comments Requested; Extension of a Currently Approved Collection: Cargo Theft Incident Report | |
81 FR 47235 - Culturally Significant Objects Imported for Exhibition Determinations: “Della Robbia: Sculpting With Color in Renaissance Florence” Exhibition | |
81 FR 47047 - Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken Removed From the List of Endangered and Threatened Wildlife | |
81 FR 47236 - Culturally Significant Objects Imported for Exhibition Determinations: “No Limits: Zao Wou-Ki” Exhibition | |
81 FR 47231 - Culturally Significant Objects Imported for Exhibition Determinations: “Valentin de Boulogne: Beyond Caravaggio” Exhibition | |
81 FR 47172 - Office of Federal High-Performance Green Buildings; Green Building Advisory Committee; Request for Membership Nominations | |
81 FR 47234 - 60-Day Notice of Proposed Information Collection: Application To Determine Returning Resident Status | |
81 FR 47231 - Memorandum of Agreement Between the U.S. Department of State Bureau of Consular Affairs and the Council on Accreditation | |
81 FR 47162 - Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use Act | |
81 FR 47051 - National Environmental Policy Act Implementing Procedures | |
81 FR 47046 - Agency for International Development Acquisition Regulation (AIDAR): Preference for Privately Owned U.S.-Flag Commercial Vessels. | |
81 FR 47152 - Agency for International Development Acquisition Regulation (AIDAR): Preference for Privately Owned U.S.-Flag Commercial Vessels | |
81 FR 47071 - Energy Conservation Program: Test Procedures for Certain Categories of General Service Lamps | |
81 FR 47158 - Mid-Atlantic Fishery Management Council (MAFMC); Meeting | |
81 FR 47160 - Draft Outline for the Proposed Joint U.S.-Canadian Electric Grid Strategy | |
81 FR 47177 - Certain Corrosion-Resistant Steel Products From China, India, Italy, Korea, and Taiwan; Determinations | |
81 FR 47154 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications; Correction | |
81 FR 47159 - DOE/NSF High Energy Physics Advisory Panel | |
81 FR 47166 - Energy Resources USA, Inc.; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
81 FR 47167 - Marine Renewable Energy Collaborative of New England; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
81 FR 47168 - Community of Elfin Cove, DBA Elfin Cove Utility Commission; Notice of Successive Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
81 FR 47163 - California Independent System Operator Corporation; Notice of Technical Conference | |
81 FR 47168 - High Point Gas Transmission, LLC; Notice of Application | |
81 FR 47163 - Texas Eastern Transmission, LP; Notice of Application | |
81 FR 47166 - Fluke Corporation; Notice of Filing | |
81 FR 47165 - Energy Resources USA, Inc.; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
81 FR 47158 - Proposed Collection; Comment Request | |
81 FR 47173 - National Practitioner Data Bank: Change in User Fees | |
81 FR 47236 - Notice of Statute of Limitations on Claims, Final Federal Agency Actions on Proposed Highway in California | |
81 FR 47155 - Delta-Bienville Resource Advisory Committee | |
81 FR 47179 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Claim for Reimbursement-Assisted Reemployment | |
81 FR 47180 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Emergency Mine Evacuation | |
81 FR 47175 - Prospective Grant of Exclusive Ownership of the Know The Facts First Campaign | |
81 FR 47174 - Advisory Committee on Training in Primary Care Medicine and Dentistry; Notice for Request for Nominations | |
81 FR 47175 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
81 FR 47193 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to Janus Detroit Street Trust, the Janus Velocity Tail Risk Hedged Large Cap ETF, and the Janus Velocity Volatility Hedged Large Cap ETF | |
81 FR 47158 - Prospective Grant of Exclusive Patent License | |
81 FR 47162 - Combined Notice of Filings #2 | |
81 FR 47164 - Combined Notice of Filings #1 | |
81 FR 47169 - Combined Notice of Filings #1 | |
81 FR 47165 - Brady Wind II, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 47166 - Brady Wind, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 47164 - Buena Vista Energy LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 47167 - Notice of Effectiveness of Exempt Wholesale Generator Status | |
81 FR 47222 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change Relating to the Listing and Trading of Shares of BlackRock Government Collateral Pledge Unit Under NYSE Arca Equities Rule 8.600 | |
81 FR 47229 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Update Rule Cross-References and Make Non-Substantive Technical Changes to Certain FINRA Rules | |
81 FR 47184 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Approving Proposed Rule Change Removing From Its Rules Certain Internal Procedures Regarding the Use of Fine Income | |
81 FR 47196 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Pilot Period Applicable to the Customer Best Execution Auction per Rule 971.1NY | |
81 FR 47211 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of a Proposed Rule Change To Establish the MSRB Academic Historical Transaction Data Product | |
81 FR 47187 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt Paragraph (c) to Exchange Rule 11.27 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 47198 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Exchange Rule 11.27 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 47205 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt Paragraph (c) to Exchange Rule 11.22 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 47223 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt Paragraph (c) to Exchange Rule 11.21 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 47217 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Order Granting Approval of Proposed Rule Change, as Modified by Amendment No. 8 Thereto, to List and Trade Under BZX Rule 14.11(c)(4) Shares of the Following Series of VanEck Vectors ETF Trust: VanEck Vectors AMT-Free 6-8 Year Municipal Index ETF; VanEck Vectors AMT-Free 8-12 Year Municipal Index ETF; and VanEck Vectors AMT-Free 12-17 Year Municipal Index ETF | |
81 FR 47171 - World Imports, Ltd., World Imports Chicago, LLC, and World Imports South, LLC v. OEC Group New York; Notice of Filing of Complaint and Assignment | |
81 FR 47178 - Notice of Lodging of Proposed Amended Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act | |
81 FR 47173 - Submission for OMB Review; Comment Request | |
81 FR 47182 - New Postal Product | |
81 FR 47155 - Notice of Intent To Grant Exclusive License | |
81 FR 47017 - Changing the Collective Risk Limits for Launches and Reentries and Clarifying the Risk Limit Used To Establish Hazard Areas for Ships and Aircraft | |
81 FR 47181 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978 | |
81 FR 47171 - Notice of Agreements Filed | |
81 FR 47176 - National Institute of Mental Health; Notice of Closed Meeting | |
81 FR 47156 - Proposed Information Collection; Comment Request; Annual Capital Expenditures Survey | |
81 FR 47005 - Viruses, Serums, Toxins, and Analogous Products; Single Label Claim for Veterinary Biological Products | |
81 FR 47005 - Update to Transcript Correction Procedures | |
81 FR 47115 - Air Plan Approval; North Carolina Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard | |
81 FR 47133 - Air Plan Approval; Massachusetts; Infrastructure State Implementation Plan Requirements | |
81 FR 47034 - Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; 2015 Kansas State Implementation Plan for the 2008 Lead Standard | |
81 FR 47029 - Air Plan Approval; Oregon; Medford Area Carbon Monoxide Second 10-Year Maintenance Plan | |
81 FR 47114 - Approval of Medford, Oregon; Carbon Monoxide Second 10-Year Limited Maintenance Plan | |
81 FR 47040 - Finding of Failure To Submit a State Implementation Plan; Maryland; Interstate Transport Requirements for the 2008 8-Hour National Ambient Air Quality Standards for Ozone | |
81 FR 47103 - Approval and Promulgation of Implementation Plans; Alaska: Infrastructure Requirements for the 2010 Nitrogen Dioxide and 2010 Sulfur Dioxide Standards | |
81 FR 47094 - Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard | |
81 FR 47144 - Designation of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the Ohio Portion of the Campbell-Clermont KY-OH Sulfur Dioxide Nonattainment Area | |
81 FR 47124 - Air Plan Approval/Disapproval; Alabama Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards | |
81 FR 47087 - Recognition of Tribal Organizations for Representation of VA Claimants | |
81 FR 47004 - Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; Withdrawal for a Continuance Referendum | |
81 FR 47027 - Safety Zone; Houma Navigation Canal Miles 23 to 23.5, Dulac, LA | |
81 FR 47049 - Prevailing Rate Systems; Redefinition of the New York, NY, and Philadelphia, PA, Appropriated Fund Federal Wage System Wage Areas | |
81 FR 47006 - Rules of Practice for Hearings | |
81 FR 47157 - Silicon Metal From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015 | |
81 FR 47036 - Air Plan Approval; RI; Regional Haze Five Year Progress Report | |
81 FR 47124 - Air Plan Approval; RI; Regional Haze Five Year Progress Report | |
81 FR 47084 - Airworthiness Directives; The Boeing Company Airplanes | |
81 FR 47001 - Chemical Facility Anti-Terrorism Standards | |
81 FR 47240 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Seismic Surveys in Cook Inlet, Alaska |
Agricultural Marketing Service
Agricultural Research Service
Animal and Plant Health Inspection Service
Forest Service
Census Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Parole Commission
Federal Aviation Administration
Federal Highway Administration
Comptroller of the Currency
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.
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Department of Homeland Security.
Suspension and modification of certain submission requirements for chemical facilities of interest and covered chemical facilities under agency regulations.
The U.S. Department of Homeland Security (DHS or Department) is publishing this document to inform the public of the Department's actions to implement an improved tiering methodology for the Chemical Facility Anti-Terrorism Standards (CFATS) program that incorporates the relevant elements of risk mandated by section 2102(e)(2) of title XXI of the Homeland Security Act of 2002 (as amended). Implementation of the improved tiering methodology required changes to an Information Collection Request (ICR), which has recently been approved by the Office of Management and Budget (OMB).
This document goes into effect July 20, 2016, or as otherwise specified in this document.
Jessica Falcon, Chief, Compliance Branch, Department of Homeland Security, 245 Murray Lane SW., Mail Stop 0610, Arlington, VA 20598-0610; Phone: 703-235-5263, Fax: 866-731-2728.
In December 2014, the President signed into law the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014
Section 2102(e)(2) of Title XXI of the Homeland Security Act of 2002 (as amended) requires that the Department incorporate the relevant elements of risk in determining the risk of terrorism associated with a covered chemical facility.
The Department will transition to the revised CSAT Top-Screen application, a revised CSAT Security Vulnerability Assessment (SVA) application, and a revised CSAT Site Security Plan (SSP) application, hereafter described as “CSAT 2.0”. The Department expects to begin collecting information using CSAT 2.0 from chemical facilities of interest in the near future using a phased approach.
The Department considered several alternatives for transitioning from the existing CSAT applications to CSAT 2.0 to minimize undue effort and unnecessary complexity that could inadvertently cause confusion. The Department believes that the actions taken in this document represent a reasonable transition process.
The transition from the existing CSAT applications to CSAT 2.0 will be a three-step process. The first step is to temporarily suspend, effective July 20, 2016, the requirement for CFATS chemical facilities of interest to submit a Top-Screen and SVA. This suspension is designed to help chemical facilities of interest avoid expending time and resources on Top-Screen and SVA submissions during the transition to CSAT 2.0. The Department will continue to allow covered chemical facilities to submit new or revised SSPs and Alternative Security Programs (ASPs) in lieu of an SSP using the current CSAT SSP application up until the date of transition to CSAT 2.0.
The second step will be to replace the current CSAT Top-Screen, SVA, and SSP applications with CSAT 2.0 (
The third step will be to reinstate the Top-Screen and SVA submission requirements in 6 CFR 27.210(a) on October 1, 2016.
After the transition to CSAT 2.0, the Department will begin individually notifying chemical facilities of interest (to include facilities previously determined not to be high-risk), unless otherwise described in Section IV of this document, to submit a Top-Screen using the revised CSAT Top-Screen application. The Department will send a specific written notification in this regard, pursuant to its authority under 6 CFR 27.210(a)(1)(ii). These letters will be issued in a phased manner over the course of several months.
A facility that does not possess any chemical of interest (COI) at or above the Screening Threshold Quantity (STQ) and as applicable, at or above the minimum concentration specified in Appendix A will not need to submit a Top-Screen. However, any such facility, if provided with written notice to submit a Top-Screen, must notify the Department why it is not submitting a Top-Screen. Notification may be done either by (a) accessing CSAT and submitting a Top-Screen with no COI selected
A covered chemical facility does not have to wait for written notification from the Department to submit a Top-Screen after the Department transitions to CSAT 2.0. A covered chemical facility may find it advantageous to submit a Top-Screen prior to receiving specific notification from the Department if it believes its tier might be lowered under the improved tiering methodology.
Chemical facilities of interest that come into reportable amounts of COI listed on Appendix A during the temporary suspension must submit a Top-Screen within 60 days of reinstatement. The reinstatement of the submission requirements also means that chemical facilities of interest that either: (a) Come into possession of reportable amounts of COI listed on Appendix A after the reinstatement of submission, or (b) have not complied with the existing reporting requirement since November 20, 2007 have an obligation to submit a Top-Screen within 60 days of reinstatement.
If a facility described below receives a notification letter directing it to submit a Top-Screen, it should contact the Department for further guidance—using either the contact information contained in the contact section of this document or by contacting the CFATS Helpdesk.
This document does not modify the existing Top-Screen submission extension applicable to Agricultural Production Facilities that use COI in preparation for the treatment of crops, feed, land, livestock (including poultry), or other areas of an Agricultural Production Facility or during application to or treatment of crops, feed, land, livestock (including poultry), or other areas of the facility.
The Department's practice has been to indefinitely extend the due dates for submission of Top-Screens, and as applicable SVAs and SSPs, for chemical facilities of interest whose only reportable COI is present in a gasoline mixture. Nothing in this document is intended to alter that practice; however, chemical facilities of interest that reported or have come into possession of one or more COI above the STQ in addition to the COI present in gasoline will be required to submit a Top-Screen in the revised CSAT Top-Screen application for that COI. The Department does not intend to send written notifications requesting revised Top-Screens from facilities that have previously submitted a Top-Screen with only COI present in gasoline.
Facilities that are statutorily excluded from CFATS are not required to submit a Top-Screen, and the Department does not intend to send written notifications requesting statutorily-excluded facilities to submit a Top-Screen.
The Department does not intend to require untiered facilities that previously submitted a Top-Screen with no COI selected to submit another Top-Screen; however, the Department does expect such facilities to submit a Top-Screen if they have come into possession of a reportable amount of COI since submitting their previous Top-Screen.
The Department notes that (a) some SVAs that have been initiated in the current CSAT SVA application have not yet been submitted, and similarly that (b) some SSPs that have been initiated in the current CSAT SSP application have not yet been submitted. Only complete and submitted SVAs and complete and submitted SSPs will be retained in CSAT 2.0.
Upon transitioning to CSAT 2.0, the Department will delete any partially completed SVA (
Upon transitioning to CSAT 2.0, the Department will delete any partially completed SSP (
As described in the November 2015 CSAT ICR Notice, the Department expects that because of the revisions in CSAT 2.0:
• Chemical facilities will spend 90 percent less time logged into the SVA application, and
• Chemical facilities will spend 70 percent less time logged into the SSP application.
Furthermore, as mentioned in the November 2015 CSAT ICR Notice one of the expected outcomes of the revisions is a greater confidence in the tiering results conducted after the Top-Screen. Hence, while the Department reserves the right to modify a facility's tier following review of the facility's SVA, generally speaking, the Department will rely on the information submitted in a facility's Top-Screen to make a single tiering determination for the facility, as described in 6 CFR 27.220(a). The Department will indicate confirmation of or, in extremely rare cases, alteration of, the facility's tier in a Letter of Authorization (or, in the case of a facility electing to submit an SSP under the Expedited Approval Program, a Letter of Acceptance).
In large part due to (a) the Department's reliance on a single tiering determination based on a facility's Top-Screen, and (b) an improved integration between the CSAT SVA application and the CSAT SSP application, the revised CSAT SVA application and revised CSAT SSP application have been designed to be completed and submitted together. The Department also believes that the revised CSAT SVA application aligns substantially better with 6 CFR 27.215 (the requirements of an SVA) compared to the current CSAT SVA application. Therefore, the Department, in this document, is streamlining the submission requirements to align with the revised CSAT SVA application and revised CSAT SSP application efficiencies described in the CSAT ICR by aligning the submission requirements and having them run in parallel. Based on these changes, the SVA start date and due date will be the same as the SSP start date and due date, respectively. Specifically, in this document, the Department is using its authorities:
• Under 6 CFR 27.210(a)(2), when the Department transitions to CSAT 2.0, to require covered chemical facilities to submit their initial SVA within 120 days of written notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk.
• under 6 CFR 27.210(a)(3), when the Department transitions to CSAT 2.0, to require covered chemical facilities to submit their initial SSP within 120 days of written notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk.
Therefore, the deadline for a covered chemical facility to submit an initial SVA and an initial SSP will be 120 days after the Department's tiering determination described in 6 CFR 27.205(a). Facilities may request extensions to the due dates for the SVA and SSP. All requests will be considered by the Department on a case by case basis.
As previously explained, the Department expects to maintain the ability to have data from the most recently submitted CSAT SSP pre-populate into an SSP that will be available in the CSAT 2.0 SSP application. As a result, after the transition to CSAT 2.0, covered chemical facilities that need to revise their SSPs will need to (a) review a pre-populated SSP for completeness and accuracy; and (b) make any necessary updates or corrections to their SSP before submission using the revised CSAT SSP application. Because the new CSAT 2.0 design contemplates the submission of the SVA and SSP together, covered chemical facilities will also be required to revise their SVAs if/when they revise their SSPs. Furthermore, the start date and due date for a revised SVA will be the same as the start date and due date, respectively, for the covered chemical facility's revised SSP. Covered chemical facilities will be required to submit revised SVAs and revised SSP within 30 days of written notification from the Department. The Department selected the 30 day deadline because it has been allowing covered chemical facilities 30 days to complete revisions to their SVAs and SSPs for the past several years and found that it is a sufficient amount of time for most facilities. The Department will consider requests for extensions to the due dates for revised SVAs and SSPs.
Many chemical facilities of interest previously determined not to be high risk will need to reactivate the CSAT account(s) of their designated representative(s) or register a new representative. All chemical facilities of interest affected by this document, in particular chemical facilities of interest previously determined not to be high risk, should verify what, if any, steps they need to take in order to ensure that an appropriate representative has an active CSAT account. For assistance on how to reactivate a CSAT account please contact the CFATS Help Desk. Information about how to register for a new CSAT account can be found on the CFATS Knowledge Center at
To access CSAT, a CSAT User must be a Chemical-terrorism Vulnerability Information (CVI) authorized user. CSAT Users, in particular CSAT users affiliated with chemical facilities of interest previously determined not to be high risk, may need to complete CVI training and apply to be a CVI Authorized User prior to their ability to access CSAT. To verify your status as a CVI Authorized User you may contact the CFATS Helpdesk.
This document exercises the following regulatory actions:
• Temporarily suspends the requirement to submit a Top-Screen and SVA on July 20, 2016. The Department is authorized to take this action under § 27.210(a)(1)(ii) and (a)(2) of part 27 of title 6, Code of Federal Regulations.
• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility will be required to submit its initial SVA within 120 days of notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk.
• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility will be required to submit its initial SSP within 120 days of notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk. The Department is authorized to take this action under § 27.210(a)(3) of part 27 of title 6, Code of Federal Regulations.
• Notifies the public that when the Department transitions to CSAT 2.0, covered chemical facilities seeking to revise an SSP will also be required to revise their SVA. The Department is authorized to take this action under § 27.210(b)(2) of part 27 of title 6, Code of Federal Regulations.
• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility submitting a revised SVA will have 30 days to submit its revised SVA. The Department is authorized to take this action under § 27.210(a)(2) of part 27 of title 6, Code of Federal Regulations.
• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility submitting a revised SSP will have 30 days to submit its revised SSP. The Department is authorized to take this action under § 27.210(a)(3) of part 27 of title 6, Code of Federal Regulations.
• Notifies the public of the reinstatement of the Top-Screen and SVA submission requirements on October 1, 2016. This means that chemical facilities of interest that acquire reportable amounts of COI listed on Appendix A after the reinstatement of the requirement to submit a Top-Screen and SVA must submit a Top-Screen within 60 days. The reinstatement of the submission requirements also means that chemical facilities of interest that have not complied with the existing reporting requirement since November 20, 2007 must also submit a Top-Screen with 60 days. The Department is authorized to take this action under § 27.210(a)(1)(ii) and (a)(2) of part 27 of title 6, Code of Federal Regulations.
• Notifies the public that a chemical facility of interest will have 60 days following the reinstatement of the submission requirements under 6 CFR 27.210(a) to submit a Top-Screen if the chemical of facility of interest have come into possession of a reportable amount of COI after July 20, 2016 but before reinstatement of the submission requirements. The Department is authorized to take this action under § 27.210(a)(1)(ii) of part 27 of title 6, Code of Federal Regulations.
This document does not require chemical facilities to immediately submit a Top-Screen after the transition to the revised CSAT Top-Screen application. Rather, this document publicizes the Department's intent to begin individually notifying chemical facilities of interest. After the transition to CSAT 2.0, the Department will begin sending written notification to chemical facilities of interest requiring them to submit a Top-Screen using the revised CSAT Top-Screen application. Finally, the Department (1) reemphasizes that once the Department transitions to CSAT 2.0, any chemical facility of interest can submit a Top-Screen using the revised CSAT Top-Screen application, regardless of whether it has received written notification from the Department, and (2) continues to be available for consultation to any chemical facility of interest before, during, or after the transition to CSAT 2.0. In particular the Department is available for consultation to any chemical facilities of interest that acquire COI for the first time. Requests for consultation can be made through the CFATS Helpdesk.
Taken together the process and steps outlined in this document will enable the Department to collect the necessary information to implement the improved tiering methodology required in Section 2102(e)(2) of the Homeland Security Act of 2002.
Agricultural Marketing Service, Department of Agriculture.
Withdrawal of referendum order.
On February 23, 2016, a document directing that a referendum be conducted in August 2016 among eligible domestic manufacturers and importers of softwood lumber to determine whether they favor continuance of the Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order (Order) was published in the
The document published February 23, 2016 (81 FR 8822) is withdrawn as of July 20, 2016.
Maureen Pello, Marketing Specialist, PED, SC, AMS, USDA, 1400 Independence Avenue SW., Room 1406-S, Stop 0244, Washington, DC 20250-0244; telephone: (202) 720-9915, (503) 632-8848 (direct line); facsimile: (202) 205-2800; or electronic mail:
This document is issued under the Order (7 CFR part 1217). The Order is authorized under the Commodity Promotion, Research and Information Act of 1996 (7 U.S.C. 7411-7425).
This document withdrawals a referendum order that was published in the
Animal and Plant Health Inspection Service, USDA.
Final rule; technical amendment.
In a final rule published in the
Effective July 20, 2016.
Dr. Donna Malloy, Operational Support Section, Center for Veterinary Biologics, Policy, Evaluation, and Licensing, VS, APHIS, 4700 River Road, Unit 148, Riverdale, MD 20737; (301) 851-2352.
In a final rule
Animal biologics, Exports, Imports, Labeling, packaging and containers, Reporting and recordkeeping requirements.
Accordingly, we are amending 9 CFR part 112 as follows:
21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending its regulation that governs the correction of official transcripts for agency adjudicatory proceedings. The current regulation has not been substantively updated since it was adopted in 1962 and the NRC's internal procedures have evolved since that time to incorporate technological development. The NRC is not soliciting public comment on this change because the change is limited to an agency rule of procedure and practice that does not affect the rights and responsibilities of outside parties.
This final rule is effective on July 20, 2016.
Please refer to Docket ID NRC-2016-0117 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Public Document Room (PDR): You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Tison Campbell, Office of the General Counsel, telephone: 301-287-9290, email:
In 1962, the Atomic Energy Commission (the NRC's predecessor agency) adopted revised rules of practice and procedure to govern the conduct of adjudicatory proceedings before the agency (27 FR 377; January 13, 1962). As part of those regulations, the Commission adopted a paragraph governing the correction of hearing transcripts. That provision, originally at § 2.750(b) of title 10 of the
The current agency practice varies. In Commission proceedings, an appendix listing the transcript corrections and a clean version of the transcript are attached to the order adopting the parties' proposed transcript corrections. In Atomic Safety and Licensing Board Panel proceedings, the boards generally issue an order adopting the parties' joint proposed transcript corrections, with or without an appendix listing the corrections. The Secretary does not prepare transcripts of board proceedings.
The NRC is, therefore, updating the regulation that governs the correction of official transcripts for agency adjudicatory proceedings, currently at
Under the Administrative Procedure Act (5 U.S.C. 553(b)(A)), notice and comment requirements do not apply “to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” Because this revision affects the NRC's rules of agency procedure and practice, the notice and comment provisions of the Administrative Procedure Act do not apply. Moreover, the final rule does not change the substantive responsibilities of any person or entity regulated by the NRC.
The amendments are effective upon publication in the
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.
This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This final rule is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).
The NRC will not be issuing guidance for this rulemaking because the revised rule applies to the NRC only and does not affect the rights and responsibilities of outside parties.
Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Confidential business information, Freedom of information, Environmental protection, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 2.
Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note. Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
(d)
For the Nuclear Regulatory Commission.
Board of Governors of the Federal Reserve System.
Interim final rule.
The Board of Governors of the Federal Reserve System (the “Board”) is issuing an interim final rule amending its rules of practice and procedure to adjust the amount of each civil monetary penalty (“CMP”) provided by law within its jurisdiction to account for inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
This interim final rule is effective on August 1, 2016. Comments on the interim final rule must be received on or before August 30, 2016.
When submitting comments, please consider submitting your comments by email or fax because paper mail in the Washington, DC area and at the Board may be subject to delay. You may submit comments, identified by Docket No. R-1543 and RIN 7100 AE 55, by any of the following methods:
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All public comments will be made available on the Board's Web site at
Katherine H. Wheatley, Associate General Counsel (202/452-3779), or Mehrnoush Bigloo, Senior Attorney (202/475-6361), Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Ave. NW., Washington, DC 20551. For users of Telecommunication Device for the Deaf (TDD) only, contact 202/263-4869.
The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“FCPIA Act”), requires Federal agencies to adjust, by regulation, the CMPs within their jurisdiction to account for inflation. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act” or the “Act”)
Under the 2015 Act, the initial catch-up adjustment is the percentage for each civil monetary penalty by which the Consumer Price Index for the month of October 2015 exceeds the Consumer Price Index for the month of October of the calendar year during which the amount of the penalty was established or adjusted other than pursuant to the FCPIA. On February 24, 2016, as directed by the 2015 Act, the Office of Management and Budget (OMB) issued guidance to agencies on implementing the required catch-up adjustment which included the relevant inflation multipliers per calendar year.
Pursuant to the Administrative Procedure Act (the “APA”), notice of proposed rulemaking and opportunity for public comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
The Regulatory Flexibility Act, 5 U.S.C. 601
There is no collection of information required by this interim final rule that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Administrative practice and procedure, Claims, Crime, Equal access to justice, Lawyers, Penalties.
For the reasons set forth in the preamble, the Board of Governors amends 12 CFR part 263 as follows:
5 U.S.C. 504, 554-557; 12 U.S.C. 248, 324, 334, 347a, 504, 505, 1464, 1467, 1467a, 1817(j), 1818, 1820(k), 1829, 1831o, 1831p-1, 1832(c), 1847(b), 1847(d), 1884, 1972(2)(F), 3105, 3108, 3110, 3349, 3907, 3909(d), 4717; 15 U.S.C. 21, 78l(i), 78o-4, 78o-5, 78u-2; 1639e(k); 28 U.S.C. 2461 note; 31 U.S.C. 5321; and 42 U.S.C. 4012a.
(a)
(b)
Billing Code: 6210-01-P
Federal Aviation Administration (FAA), DOT.
Final rule.
This action revises the FAA's requirements for an application to operate in Reduced Vertical Separation Minimum (RVSM) airspace and eliminates the burden and expense of developing, processing, and approving RVSM maintenance programs. As a result of this revision, an applicant to operate in RVSM airspace will no longer be required to develop and submit an RVSM maintenance program solely for the purpose of obtaining an RVSM authorization. Because of other, independent FAA airworthiness regulations, all aircraft operators remain required to maintain RVSM equipment in an airworthy condition.
Effective August 19, 2016.
For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the
For technical questions concerning this action, contact Charles Fellows, Aviation Safety Inspector, Avionics Branch, Aircraft Maintenance Division, Flight Standards Services, AFS-360, Federal Aviation Administration, 950 L'Enfant Plaza North SW., Washington, DC 20024; telephone (202) 267-1706; email
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Sections 106(f), 40113, and 44701 authorize the Administrator to prescribe regulations necessary for aviation safety. Section 40103 authorizes the Administrator to prescribe regulations to enhance the efficiency of the national airspace. This rulemaking is within the scope of these authorities because it removes an existing safety and airspace-related regulation that the FAA no longer finds necessary for aviation safety.
This action amends Appendix G of part 91 of Title 14 of the Code of Federal Regulations (14 CFR) by removing the requirement that any applicant for a Reduced Vertical Separation Minimum (RVSM) authorization must submit an RVSM maintenance program to the FAA for approval.
The FAA's vertical separation standards establish the vertical distance that must separate aircraft routes in the national airspace system. In the early 1970's, rising air-traffic volume and fuel costs sparked an interest in reducing vertical separation standards for aircraft operating above flight level (FL) 290 (above 18,000 ft., flight levels are assigned in 500-ft. increments; FL290 represents an pressure altitude of 29,000 ft. referenced to a barometric pressure of 29.92 inches at sea level). At the time, the FAA required aircraft operating above FL290 to maintain a minimum of 2,000 ft. of vertical separation. Use of high-altitude routes was desirable, however, because the diminished atmospheric drag at these altitudes results in enhanced aircraft efficiency and a corresponding decrease in fuel consumption. Operators, therefore, sought and continue to seek not only the most direct routes, but also the most efficient altitudes for operation of their aircraft. Higher demand for these high-altitude routes has resulted in greater congestion.
In 1981, the FAA initiated the Vertical Studies Program. This program, in conjunction with the RTCA (formerly Radio Technical Commission for Aeronautics) Special Committee (SC)-150 and the International Civil Aviation Organization (ICAO) Review of General Concept of Separation Panel (RGCSP), determined:
• RVSM is “technically feasible without imposing unreasonably demanding technical requirements on the equipment;”
• RVSM could provide “significant benefits in terms of economy and en-route airspace capacity;” and
• Implementation of RVSM would require “sound operational judgment supported by an assessment of system performance based on: Aircraft altitude-keeping capability, operational considerations, system performance monitoring, and risk assessment.”
In response to the findings made by the Vertical Separation Program, the FAA began a two-phase implementation of RVSM operations for aircraft registered in the United States (U.S.). In 1997, and as the first phase, the FAA published two amendments to part 91 of Title 14 of the Code of Federal Regulations (14 CFR). The first amendment established § 91.706 (Operations within airspace designed as Reduced Vertical Separation Minimum Airspace), which, among other things, allows operators of U.S.-registered aircraft to fly in RVSM airspace outside of the U.S. Appendix G (Operations in Reduced Vertical Separation Minimum (RVSM) Airspace), was added which contained a set of operational, aircraft design, and other standards applicable to those seeking to operate in RVSM airspace.
The second phase of RVSM implementation occurred in October 2003, with the publication of a second RVSM-related FAA rulemaking.
In 2008, the FAA reviewed its RVSM authorizations, which applied to more than 15,000 U.S.-registered aircraft. The FAA's evaluation found that the existing
The requirement for an applicant to submit a maintenance program with the application for an RVSM authorization was promulgated in 1997 when most aircraft required significant design changes or inspections to qualify for RVSM operation. RVSM operations have become much more common since then. RVSM systems are now incorporated into aircraft type designs or have been incorporated through modifications performed using supplemental type designs or amended type designs. Operators must properly maintain those systems as part of their airworthiness obligations, making a separate RVSM maintenance program redundant and unnecessary.
In May 2015, the FAA issued an NPRM, (15 FR 30394; May 28, 2015) that proposed to amend the requirements for an application to operate in RVSM airspace. The FAA proposed to remove and reserve paragraph (b)(1), of section 3 of Appendix G of part 91, to eliminate the requirement that any operator seeking RVSM authorization under § 91.180 and § 91.706 had to develop and submit an RVSM maintenance program for FAA approval.
The comment period for the NPRM closed on July 27, 2015. The FAA received 38 comments. The commenters included the National Air Transportation Association (NATA) and the National Business Aviation Association (NBAA). Twenty commenters supported the rule change in its entirety, twelve commenters provisionally supported the change while supplying additional comments, and eight commenters opposed the rule change. The FAA divided the issues raised in the comments into three categories addressing: (1) Safety concerns; (2) further enhancements to the RVSM authorization process; and (3) miscellaneous comments or recommendations.
Although there were slight variations, many of the comments submitted in opposition to the proposal claimed that reducing the regulatory requirements for an RVSM authorization would reduce aviation safety.
The FAA reiterates that this final rule eliminates an application requirement, and leaves intact FAA requirements to maintain RVSM equipment and operate RVSM authorized aircraft in an airworthy condition. As described in the NPRM, the requirement to submit a maintenance program as part of an RVSM application was promulgated in an environment where RVSM technology was not firmly established and RVSM maintenance procedures were unproven. As RVSM equipment was installed on more aircraft, and confidence in established maintenance procedures increased, the requirement for each applicant to develop its own RVSM-specific maintenance procedures ceased to produce any appreciable safety benefit.
Sections 91.180 and 91.706 will continue to require operators to meet the equipment and performance standards specified in Appendix G to part 91. These performance standards were developed by the RTCA SC-150 and the ICAO RGCSP as the minimum performance standard for aircraft to conduct RVSM operation, and adopted by the FAA. In addition, §§ 91.405 and 91.407 continue to require operators to have their aircraft inspected and approved for return to service by authorized persons and otherwise maintained in accordance with part 43. Moreover, each person performing maintenance and preventive maintenance is required to do so using the methods, techniques, and practices prescribed in the manufacturer's maintenance manual, Instructions for Continued Airworthiness (ICA), or other means acceptable to the Administrator. The primary effect of this final rule is to remove the requirement for an applicant to submit an RVSM-specific maintenance program to the FAA as part of its application for an RVSM authorization.
One commenter stated that the requirement to maintain an aircraft in a condition for safe flight, as codified in § 91.7, applies only to a pilot, as opposed to an operator. The commenter stated that an operator is only required to maintain RVSM equipment because of its maintenance program obligations.
The FAA disagrees. As previously described, although this final rule eliminates an operator's obligation to submit a maintenance program as part of an RVSM application, operators will nevertheless continue to be required to maintain their RVSM equipment in accordance with applicable airworthiness standards. In particular, §§ 43.13, 91.405, and 91.407 continue to require aircraft to be inspected and approved for return to service in accordance with manufacturers' maintenance information or other material acceptable to the Administrator. Operators with maintenance programs, such as air carriers conducting operations under part 121, will continue to be required to maintain RVSM equipment in accordance with those programs.
Two commenters raised the issue of identifying required maintenance information. One commenter stated that most RVSM applicants do not have the latest RVSM maintenance information until they acquire that information in the course of preparing to apply for an RVSM authorization. Another commenter stated that ICA may not be available for all RVSM designs. As an example, the commenter referred to aircraft modified to meet RVSM performance standards under a supplemental type certificate (STC), rather than with equipment installed under a type certificate (TC), and also to aircraft modifications classified as minor changes to type design.
To the extent that these commenters assert that the requirement to submit a maintenance program as part of an RVSM application is necessary for operators to access or determine the appropriate maintenance instructions, the FAA disagrees. For many newer aircraft, RVSM capability is incorporated into the original type design. For other aircraft, incorporating alterations to meet RVSM performance requirements is classified as a major change to type design, and as such must be incorporated through an STC or an amended type certificate. In either case, § 21.50(b) requires, among other things,
One commenter stated that he services aircraft that have been upgraded to RVSM capability by way of STCs, and removing the RVSM maintenance program requirement would remove the information from the aircraft records that identifies which STC is installed. The FAA disagrees. When STCs are incorporated into aircraft they constitute major changes to the aircraft type design. Identification of the design change and associated ICA are recorded in the appropriate aircraft records. Section 21.50 requires design approval holders to make ICA available to any owner, operator, or other person required to comply with their terms.
Another commenter stated that submission of an RVSM maintenance program is necessary to identify necessary repairs to RVSM and other aviation data equipment and that the FAA has a statutory obligation, under 49 U.S.C. 44701, to promote the safe flight of civil aircraft. The FAA disagrees that submission of an RVSM maintenance program with an RVSM application for authorization is necessary to identify repairs for the reasons previously stated. Removal of the requirement will not negatively impact the safe flight of civil aircraft or conflict with the FAA's obligations under 49 U.S.C. 44701.
Among the commenters who raised safety concerns, several recommended alternatives. One commenter recommended that the FAA require operators to “identify practices” for the maintenance of RVSM equipment (alternative 2 considered in the proposal), but without requiring that these practices be submitted as part of an application. The same commenter also recommended that the FAA modify the alternative to specifically require each operator to identify the TC or STC holder's ICA and ensure each is listed in the operator's maintenance tracking system.
The FAA believes that adopting the proposed alternative would provide no greater safety benefit and would do less to reduce the unnecessary burden on industry than eliminating the requirement to submit an RVSM maintenance program for approval. The commenter's recommendation would continue to require operators to provide redundant paperwork as part of each RVSM application. The FAA also believes that requiring an applicant to identify maintenance practices, in addition to the existing requirements to follow those practices, would not meaningfully contribute to aviation safety. As stated previously, § 21.50 requires design approval holders to make ICA available to any owner, operator, or other person required to comply with the terms of those ICA.
With respect to the recommendation to require operators to track RVSM-specific information in a maintenance tracking system, the FAA agrees that any operator using a maintenance tracking system should use that system to track the maintenance of RVSM equipment as identified in the appropriate ICA. However, some operators—such as part 91 operators—are not required to develop maintenance tracking systems. To the extent that the commenter is recommending that the FAA require part 91 operators to implement maintenance tracking systems, the recommendation is outside the scope of this rulemaking.
One commenter observed that the FAA often rejects, for various reasons, maintenance programs that accompany operators' applications for RVSM authorizations. The commenter stated that the existence of these rejections is evidence that continued FAA oversight is necessary to maintain safety. The FAA disagrees. The FAA often rejects a program submission or requests that additional revisions be made to an application for reasons related to an operator's lack of familiarity with the process for developing a program and submitting an application. These issues may be unrelated to the adequacy of a particular maintenance program. Moreover, many part 91 operators applying for RVSM authorizations do not perform maintenance themselves—RVSM or otherwise—and are reproducing plans developed by an original equipment manufacturer. Regardless of who performs the maintenance, §§ 91.405 and 91.407 require each aircraft owner or operator to have the aircraft inspected and approved for return to service by an individual or entity authorized by § 43.7.
One commenter stated that the expense and effort required to create an RVSM maintenance program helps to ensure each operator's commitment to safety. Another commenter stated that the requirement to develop and submit a maintenance program encourages operators to adhere to the appropriate maintenance information. The FAA believes that imposing a requirement on operators to submit a maintenance program for approval imposes a significant cost on operators that is not an effective or appropriate means of obtaining an operators' commitment to safety. As previously described, operators will continue to be required to maintain their aircraft in an airworthy condition in accordance with existing regulations.
Three comments were received that the proposal “did not go far enough,” and recommended that the FAA eliminate RVSM approvals entirely. For example, one commenter stated that the industry's experience in safely installing, maintaining, and operating RVSM equipment demonstrates that there is no longer a need for RVSM approvals. The FAA proposed only to remove the requirement to submit a maintenance program from the application for RVSM approval. The FAA did not propose to eliminate RVSM approvals entirely. The commenter's recommendation is outside the scope of this rulemaking.
One individual commenter recommended that, in cases where an operator was applying to operate an aircraft which was previously listed on an authorization, the FAA should issue a temporary, interim RVSM approval. The commenter stated that the NPRM underestimated the costs of compliance with the FAA's RVSM approval program, because an operator awaiting RVSM authorization consumes significant additional funds flying below optimal altitudes. Operators are required to apply for a new authorization whenever an aircraft changes ownership or registration, regardless of whether the underlying aircraft is modified. The FAA did not propose to introduce interim RVSM authorizations. The commenters' recommendation is, therefore, outside the scope of this rulemaking.
One commenter stated that a reduction to the FAA's workload is not a legitimate rationale for FAA rulemaking and that the FAA's goal and statutory obligation is to promote safe flight of civil aircraft. The FAA notes that this final rule eliminates a requirement that is no longer necessary to provide the level of safety required for these operations. The FAA is required by numerous statutes and executive orders to consider both the costs and benefits of its regulations and to adopt proposals that are cost justified. Costs incurred by the FAA are a legitimate factor to be considered in accomplishing this analysis.
One individual commenter stated that the industry assumes this rule change would allow an operator to obtain RVSM approval by submitting no more than a letter to the FAA. The FAA disagrees. The requirement to submit an RVSM maintenance program, a requirement eliminated by this rule, was only one of three components of an RVSM application. Under §§ 91.180, 91.706, and Appendix G to part 91, the FAA continues to require an applicant to submit documentation establishing that its aircraft is RVSM compliant, and that the applicant's crew has adequate knowledge of RVSM requirements, policies, and procedures as set forth in § 3(c)(2) of Appendix G. For part 121 and part 135 operators, this requires initial and recurring pilot training as specified in § 3(b)(2) of Appendix G.
One individual commenter recommended that the FAA eliminate the requirement for maintenance program approval only with respect to aircraft that are RVSM capable “under a TC.” The commenter recommended that the FAA continue to require maintenance program approval for any aircraft that is RVSM capable as a result of an alteration performed in accordance with an STC because an STC indicates a major deviation from the aircraft's original type design and maintenance procedures would not be listed in the manufacturer's recommended procedures.
The FAA disagrees that aircraft with RVSM equipment installed pursuant to an STC should be treated differently from aircraft with RVSM equipment installed as part of an original or amended type design. Both TC and STC holders must develop ICA, and § 43.13 continues to require maintenance and preventive maintenance to be performed in accordance with the current manufacturer's maintenance manual, ICA, or other methods, techniques, and practices acceptable to the Administrator. Because ICA are available regardless of whether RVSM equipment is installed under a TC or an STC, and because all operators are equally obligated to maintain their equipment in accordance with this maintenance information, the FAA finds no reason to differentiate between these two kinds of operators.
One individual commenter stated that avionics technology has undergone a major transformation in the last 15 years, moving away from discrete components and towards more fully integrated systems. The commenter recommended that authorizations should similarly be analyzed and approved in a more unified manner, to reduce the number of individual performance-based approvals. The commenter's recommendation that the FAA review all performance-based approvals in a single application is outside the scope of this rulemaking.
Several individual commenters, both supporting and opposing the proposal, stated that the burden on operators to obtain approval of an RVSM maintenance program could be reduced substantially by standardizing what is required by FAA inspectors in an RVSM application. The FAA has published and continues to provide guidance to its inspectors on the requirements for the issuance of an RVSM authorization. In addition to the guidance, the FAA has developed job aids to assist in the development of an RVSM program manual. The agency believes these ongoing efforts will continue to increase standardization in the application process.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. Because this rulemaking is a retrospective regulatory review, the expected outcome would be a cost savings with positive net benefits. The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and procedures. Such a determination has been made for this final rule. The reasoning for this determination follows:
This rulemaking responds to requests from industry and FAA program offices. The rule removes the requirement that operators seeking RVSM authorization must submit an RVSM maintenance program for FAA approval. It eliminates the considerable burden and expense to operators and FAA safety inspectors of developing, processing, and approving RVSM maintenance programs.
When the former requirement was established, RVSM systems were yet to be incorporated into initial aircraft type designs. This is no longer the case. RVSM systems are now incorporated into initial aircraft type designs, and operators must properly maintain these systems as part of their airworthiness obligation. In light of these developments, the requirement for RVSM applicants to submit specialized maintenance programs is redundant. Removing this redundancy has no effect on aviation safety.
One commenter stated the NPRM underestimated the cost of compliance, because an operator awaiting RVSM authorization incurs cost flying below optimal altitudes. As the operators are already required to incur this cost, this rule does not change this cost. The FAA did not propose to introduce interim RVSM authorization, therefore no new cost are required. The FAA notes that no other comments were received on our NPRM cost-savings determination or methodology. While the same methodology is used here, the FAA has updated the number of maintenance programs expected to be submitted and the wage for the safety inspector to 2015 dollars.
The relief to part 91 operators and FAA safety inspectors from the streamlining of regulations equals the number of RVSM maintenance programs approved (including growth) multiplied by the costs per operator of submitting an RVSM maintenance program for FAA approval. To that result, the FAA added the number of RVSM maintenance programs approved multiplied by the cost of an FAA safety inspector to review and approve an RVSM maintenance program multiplied by the average number of hours FAA safety inspectors expend reviewing and approving each RVSM maintenance
Applying these
In addition to the cost savings realized by operators, eliminating the requirement would free 30,552 hours for FAA safety inspectors to perform alternative tasks during year one of implementation. The hours are calculated by multiplying the average number of hours FAA safety inspectors expend reviewing and approving each RVSM maintenance program submitted (12 hours) by the number of RVSM maintenance program approvals estimated for CY 2016 (2,546 approvals). The annual cost savings of $1.4 million to the FAA equals the 30,552 hours multiplied by the FAA fully-burdened wage of $45.96.
Based on these calculations, the cost savings to operators and the FAA during the first five years of the rule's implementation will be approximately $77.5 million ($67.6 million present value). The results are presented below:
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
Under the RFA, the FAA must determine whether a rule significantly affects a substantial number of small entities. This determination is typically based on small entity size and revenue thresholds that vary depending on the affected industry.
Based on the criteria used in the initial regulatory flexibility analysis and used again here, this rule will impact a substantial number of part 91 operators. Accordingly, the FAA prepared a final regulatory flexibility analysis for part 91 operators, as described in the next section. The FAA received no comments to the initial regulatory flexibility analysis for this rule.
Under section 603(b) of the RFA (as amended), each regulatory flexibility analysis is required to address the following points: (1) Reasons the agency considered the rule, (2) the objectives and legal basis for the rule, (3) the kind and number of small entities to which the rule will apply, (4) the reporting, recordkeeping, and other compliance requirements of the rule, and (5) all Federal rules that may duplicate, overlap, or conflict with the rule.
All part 91 operator RVSM-related obligations are required by FAA airworthiness regulations to maintain RVSM equipment in an airworthy condition. Thus, the requirement that operators seeking RVSM authorization to develop and submit an RVSM maintenance program for FAA approval, is redundant.
The FAA's authority to issue rules regarding aviation safety is found in §§ 106, 40113, and 44701 of 49 U.S.C., which authorize the FAA Administrator to prescribe regulations necessary for aviation safety. Section 40103 authorizes the Administrator to prescribe regulations to enhance the efficiency of the national airspace. This rulemaking is within the scope of these authorities because it removes existing safety and airspace-related regulations that the FAA no longer finds necessary to protect aviation safety.
This final rule will affect a substantial number of part 91 operators. The FAA estimates that this proposed rulemaking would save each affected small entity $5,000 per RVSM authorization.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.
This final rule eliminates an application requirement for submission of an RVSM maintenance program and leaves intact current requirements to maintain RVSM equipment and operate RVSM authorized aircraft in an airworthy condition. Sections 43.13, 91.405, and 91.407 continue to require aircraft to be inspected and approved for return to service in accordance with manufacturers' maintenance information or other material acceptable to the Administrator. Operators with approved maintenance programs will continue to be required to maintain RVSM equipment in accordance with their approved programs.
The FAA expects this rule will save each affected small entity $5,000 per RVSM authorization. Over a 5-year period, the number exceeds $10,000 per RVSM authorization. While the rule may not have a significant economic impact, it would have a positive impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact and, therefore, no effect on international trade.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312d (regulatory documents covering administrative or procedural requirements) and involves no extraordinary circumstances.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
An electronic copy of a rulemaking document may be obtained by using the Internet—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Printing Office's Web page at
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Comments received may be viewed by going to
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 require the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the
Air traffic control, Aircraft, Aviation safety.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is amending its regulations concerning the collective risk limits for commercial launches and reentries. These changes include: Separating the risk limits for commercial launches and reentries; aggregating the risk posed by impacting inert and explosive debris, toxic release, and far field blast overpressure; limiting the aggregate risk for these three hazards to 1 × 10
Effective September 19, 2016.
For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the
For technical questions concerning this action, contact Rene Rey, AST-300, Office of Commercial Space Transportation, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7538; email
The Commercial Space Launch Act of 1984, as amended and codified at 51 United States Code (U.S.C.) Subtitle V—Commercial Space Transportation, Ch. 509, Commercial Space Launch Activities, 51 U.S.C. 50901-50923 (the Act), authorizes the Secretary of Transportation and thus the FAA, through delegations, to oversee, license, and regulate commercial launch and reentry, and the operation of launch and reentry sites as carried out by U.S. citizens or within the United States. 51 U.S.C. 50904, 50905. The Act directs the FAA to exercise this responsibility consistent with public health and safety, safety of property, and the national security and foreign policy interests of the United States. 51 U.S.C. 50905. Section 50901(a)(7), in relevant part, directs the FAA to regulate private sector launches, reentries, and associated services only to the extent necessary to protect the public health and safety and safety of property. The FAA is also responsible for encouraging, facilitating, and promoting commercial space launches and reentries by the private sector. 51 U.S.C. 50903.
The FAA is adopting this final rule to revise certain regulations related to the collective risk limits for commercial launches and reentries in part 417 (Launch Safety), part 420 (License to Operate a Launch Site), part 431 (Launch and Reentry of a Reusable Launch Vehicle (RLV)), and part 435 (Reentry of a Reentry Vehicle Other Than a Reusable Launch Vehicle (RLV)) of Title 14 of the Code of Federal Regulations (14 CFR).
This final rule divides the risk analysis for launch and reentry, providing a separate risk budget for each. For all launches, regardless of vehicle type, this final rule requires a single expected number of casualties (E
This final rule also makes two revisions to § 417.107 to clarify the launch and reentry regulations. The first revision removes the phrase “including each planned impact” from § 417.107(b)(1) to clarify that public risk is assessed from lift-off through orbital insertion for orbital launches and from lift-off to final impact for suborbital launches. The second revision modifies § 417.107(b)(3) and (b)(4) to make transparent the criteria for establishing hazard areas by replacing the references to equivalent levels of safety for water borne and aircraft hazard areas required for launch from a federal launch range with the actual levels of safety provided by hazard areas for launches from a federal range in 2006, the year the FAA promulgated § 417.107. Under § 417.107(b)(3), a hazard area for water borne vessels satisfies part 417 if the probability of impact with debris capable of causing a casualty on any potential water borne vessel within the hazard area does not exceed 0.00001 (1 × 10
The final rule will result in net benefits for both the commercial space transportation industry (industry) and government by reducing the number of waivers that must be prepared by the industry and processed by the government for launches with an aggregate E
An operator conducts a launch using an expendable launch vehicle (ELV) or a reusable launch vehicle (RLV). An ELV is a launch vehicle whose
Parts 417, 420, 431, and 435 (collectively, the collective risk regulations) limit the collective risk that a commercial launch or reentry may pose to the public. The FAA's collective risk regulations, as originally promulgated, were based primarily on E
In July 2014, the FAA published in the
Prior to the 2014 NPRM, developments in the industry and among U.S. Government agencies led the FAA to question its collective risk regulations. In 2010, the U.S. Air Force, after conducting over 5,000 launches under a 30 × 10
Because the FAA's collective risk regulations were based on the U.S. Air Force's former 30 × 10
Finally, the FAA also sought to address in the 2014 NPRM whether its former collective risk regulations sufficiently distinguished between commercial launch and reentry risk. Instead of regulating risk based on whether the operation in question was a launch or a reentry, the former collective risk regulations focused on the type of vehicle used in the operation, namely whether the vehicle was an ELV, RLV, or a reentry vehicle.
The 2014 NPRM proposed several revisions to the FAA's risk framework. These proposals included: Aggregating launch hazards and establishing an E
The comment period for the July 2014 NPRM closed on October 20, 2014. The FAA received comments from nine commenters, including ACTA Inc. (ACTA), Blue Origin, LLC (Blue Origin), Lockheed Martin Corporation (Lockheed Martin), Orbital Sciences Corporation (Orbital Sciences), Sierra Nevada Corp. (Sierra Nevada), Space Exploration Technologies Corp. (SpaceX), XCOR Aerospace (XCOR), and two individual commenters. Most of the commenters supported the proposed changes, and some suggested additional changes that are discussed more fully below. Several commenters fully supported the proposed changes, and one commenter opposed the proposed changes. The comments focused on the following general areas of the proposal:
As discussed in the 2014 NPRM, this final rule does not substantively revise the FAA's limitation on risk posed to individuals found in §§ 417.107, 431.35, and 435.35.
XCOR agreed that no change is necessary because it is easier for launch operators to mitigate risk to a particular individual than the collective public, and because the FAA has never waived individual risk for launches in the past. On the other hand, Orbital Sciences recommended that the FAA “[e]xamine historical data for all U.S. launches to determine the highest level of risk realized by any individual member of the public and propose a more realistic . . . risk [figure] based on this successful precedent.” Orbital Sciences also recommended that the FAA adopt “identical risk limits for individual members of the public” for U.S. Government and commercial launches.
The FAA disagrees with Orbital Sciences' recommendation to revise the individual risk threshold. Unlike the FAA's collective risk limitation, the FAA is aware of only a small number of historical U.S. government launches for which the predicted individual risk for any one member of the public exceeded
ACTA stated that maintaining the current individual risk thresholds perpetuates inconsistent individual risk standards for ELVs, RLVs, and reentry vehicles. ACTA observed that § 417.107(b)(1)(ii) limits individual risk to 1 × 10
ACTA's recommendation to harmonize all individual risk limits is outside the scope of the current rulemaking. Also, the FAA has insufficient data to justify a change to the individual risk criteria for either launch or reentry, and thus no change was proposed. Finally, the current regulatory framework governing individual risk for launch and reentry risk has successfully protected the public since 2000.
The FAA proposed to separate the E
Blue Origin, Lockheed Martin, Orbital Sciences, and SpaceX fully supported the proposal to separate launch and reentry risk. ACTA supported the proposal to separately assess launch and reentry risk if reentry occurs after a health check, but noted that “separation of risk budgets for launch and reentry ignores the risk contribution from a failure to initiate a planned reentry.” In particular, ACTA noted that “[t]here does not appear to be any consideration for consequences if the health check prior to reentry fails. . . . [The vehicle's] orbit will eventually degrade and re-enter . . . [and the] risk of this potentially uncontrolled re-entry (if the health of the vehicle can never be restored) appears to be neglected.”
ACTA is correct that the FAA does not regulate the risk associated with reentry vehicles or parts of reentry vehicles that do not initiate or attempt to initiate a purposeful reentry. As the FAA has explained, the Act limits the FAA's licensing of reentry to scenarios involving purposeful reentry;
Although the 2014 NPRM did not propose to change the requirement that suborbital launches and reentries be subject to a single launch E
XCOR, on the other hand, commented that suborbital vehicles should continue to have a single risk limit because, for a suborbital launch, “reentry is a physical inevitab[ility]”; there is “no intervening event between launch and reentry”; and that “reentry is closely proximate in time—four minutes, for most concepts to launch.”
The FAA agrees with XCOR that a suborbital mission should continue to be analyzed using a single risk budget for the entire mission, from launch through final impact, because there is no intervening event between launch and reentry and because reentry is a physical inevitability. Moreover, separating launch and reentry risk limits for suborbital flights is beyond the scope of this final rule because it would require revising the definitions of “reentry” and “launch” found in § 401.5, changes the NPRM did not propose.
The FAA will require separate analysis of the risks associated with launch and reentry because the two are separate events. A launch may not always be successful, and a single risk limit that encompasses both launch and reentry makes reentry risk calculations unnecessarily dependent on the probability of failure associated with launch. The FAA leaves unchanged, however, the requirement that suborbital launches and reentries must comply with a single launch E
The FAA proposed to revise the acceptable risk limit for launch to 1 × 10
ACTA, Orbital Sciences, and SpaceX supported the proposal to aggregate risk calculations. The FAA received no negative comments on this component of the proposal. Therefore, this final rule replaces the prior requirement to satisfy three separate E
Numerous commenters, including Blue Origin, Lockheed Martin, Orbital Sciences, and SpaceX, supported the FAA's proposal to express the risk threshold using one significant figure. Lockheed Martin stated that the proposal “would improve efficiency and maintain a level of safety for commercial launches that is commensurate with the current high level of safety associated with civil and military launches.”
ACTA and an individual commenter advocated against changing the number of significant figures. An individual commenter recommended that one significant figure would be more appropriate at the level of 1 × 10
The FAA disagrees that the difference between 100 × 10
A standard public risk analysis for launch or reentry produces a single E
ACTA provided three alternatives to the FAA's July 2014 proposal. These alternatives included (1) using “the approach specified in RCC 321-10” in which increasing degrees of analysis and mitigation are required as the risk increases above 30 × 10
The FAA appreciates the potential value in using the RCC 321-10 approach, in which increasing degrees of analysis and mitigation are required as the risk increases. Such a dramatic change, however, is beyond the scope of this rulemaking. The FAA disagrees with ACTA's recommendations to “[e]xpress the limit that log
Under the 2014 NPRM, §§ 417.107(b)(1), 431.35(b)(1)(i), and 435.35(b) would establish an acceptable collective risk limit of 1 × 10
Orbital Sciences supported the proposal but also recommended that the FAA “[e]xamine historical data for all U.S. launches and determine the highest level of collective risk realized by the public [to] propose a more realistic . . . collective risk [number] based on this successful precedent.” Similarly, Blue Origin recommended that the collective risk number be revised higher than proposed, to 1 × 10
The FAA disagrees with Orbital Sciences' and Blue Origin's recommendations to increase the E
Moreover, a fundamental tenent of risk management, both as applied to the regulation and general safety management of various industries, is to set acceptability criteria for collective risk that are below the level that may be acceptable in unusual circumstances or on a short term basis. For aviation risk management, the FAA has identified risk-informed Continued Airworthiness Assessment Methodologies (CAAM) that include short term acceptable risks that are orders of magnitude greater than long term acceptable risk levels.
In light of these considerations and all currently available data, the FAA finds that a collective E
ACTA and an individual commenter cautioned against justifying any increase to the acceptable risk standards by reference to either a relatively small number of successful launches or the uncertainty of launch risk calculations. The individual commenter recommended that any increase to the acceptable risk limits be premised on a determination that higher numbers still adequately ensure public safety.
The FAA disagrees with ACTA's and the individual commenter's premise concerning the basis of this final rule. Contrary to their assertion, the FAA is not relying on the historical success of a relatively small number of past launches as a justification for increasing the acceptable risk standard. Rather, the FAA, by statute, is authorized to regulate “only the extent necessary” to protect public health and safety. 51 U.S.C. 50901(a)(7). The U.S. Air Force and NASA, two federal agencies with significant expertise in this area, have both examined the currently available data and concluded that it does not justify an aggregated E
Prior to this final rule, § 417.107(b)(3) and (4) required the launch operator of an ELV to implement and establish ship and aircraft hazard areas providing an equivalent level of safety to that provided by the ship and aircraft hazard areas implemented for launch from a Federal launch range. 71 FR 50508. The FAA proposed to amend § 417.107(b)(3) and (4) to clarify the requirements for hazard areas for ships and aircraft, respectively, by removing references to an “equivalent level of safety to that provided by [ship or aircraft] hazard areas implemented for launch from a Federal range” and replacing them with a numeric limit on the probability of impact with debris capable of causing a casualty.
Orbital Sciences recommended that no change be made to the hazard area regulations. Orbital Sciences stated that the proposal to implement a specific risk standard, even if it is quantitatively the same as the Federal launch ranges' standard, creates the possibility that the Federal launch ranges will change their standard and the FAA's regulation will become obsolete. The FAA disagrees with Orbital Sciences' recommendation. Regardless of whether the Federal
An individual commenter questioned the proposed clarifications regarding the ship and aircraft hazard areas. Specifically, the individual commenter pointed out that the proposal, which is based on the probability of impact with debris capable of causing a casualty, could be either excessively conservative or non-conservative depending on the details of the analysis, such as the threshold characteristics of the debris and the size of the area considered vulnerable to such debris impact. ACTA provided similar comments, stating the regulations (1) do “not define the area for computing impact” with a vessel or aircraft, and (2) do not clarify that operators must account for “the near-field explosive effects of propellants impacting in the vicinity of [a] ship.”
The individual commenter's recommendation to substantively amend the hazard area risk standards is outside the scope of this rulemaking. As described in the 2014 NPRM, this final rule does not substantively change the hazard area risk standards. 79 FR 42241, 42249-50. The hazard area revisions only clarify the FAA's standards by using a specific number, rather than an unquantified reference to Federal launch range standards. The FAA therefore rejects the commenter's recommendations to make substantive changes to the rule.
ACTA's comments also included numerous additional observations related to the hazard area regulations. ACTA stated that the regulations do not “specify how (or even if) hazard areas are to be used to implement mitigation” to protect specific individuals or the general public. This observation, however, ignores other sections of the regulations that do address how hazard areas are to be used to implement mitigation techniques, such as issuing public warnings and performing surveillance. To meet the public risk criteria of § 417.111(b), § 417.223 requires “a flight hazard area analysis that identifies any regions of land, sea, or air that must be surveyed, publicized, controlled, or evacuated in order to control the risk to the public from debris impact hazards.” Furthermore, § 417.111(j) requires a launch operator to “implement a plan that defines the process for ensuring that any unauthorized persons, ships, trains, aircraft or other vehicles are not within any hazard areas identified by the flight safety analysis or the ground safety analysis,” and explicitly includes hazard areas identified under §§ 417.107 and 417.223.
ACTA also criticized the proposal for failing to justify “why the acceptable risk limit to the general public on ships is higher than for people on land.” The premise of this comment is not correct. Specifically, § 417.107(b)(2) provides that a launch operator may initiate flight only if the risk to any individual member of the public does not exceed a 1 × 10
ACTA also was concerned that the criteria for ship and aircraft do not explicitly exclude “mission-support vessels and aircraft,” creating an inconsistency with the remainder of the regulation. Although ACTA is correct that the criteria do not apply to vessels and aircraft that support the launch, the FAA's launch and reentry regulations address only
Finally, ACTA recommended that § 417.107(b)(3) and (4) state that “a launch operator must make reasonable effort to ensure that the probability of casualty to members of the public on water borne vessels or in aircraft does not exceed the limit specified in [§ 417.107(b)(2)].” ACTA stated that this revision would establish a “specific risk value” while at the same time giving operators flexibility as to “the method of protection” or risk mitigation. The regulations already allow a launch operator to employ different methods of mitigating risk so the FAA will not adopt ACTA's proposal.
The FAA proposed to include the risks associated with toxic release in the E
Sierra Nevada recommended that the FAA define orbital insertion to help “reduce misinterpretation of the regulations” because “[s]etting a specific boundary would allow commercial space companies to clearly understand the boundaries for expected casualty limits.”
The FAA agrees with Sierra Nevada's comments that § 417.107(b)(1) can be amended to prevent potential misinterpretation.
An individual commenter observed that the 2014 NPRM proposed to revise the E
Previously, § 417.107(b)(2) referenced E
The FAA is streamlining the terminology in the collective risk requirements. Specifically, we are removing the colloquial term “average” from “expected average,” which is redundant and unnecessary. In statistics there are three measures of central tendency or “averages”: The median, mode, and mean. The expected value is synonymous with the mean value specifically, thus the term “expected” is technically precise and sufficient.
As described above, there are two differences between the FAA's proposal in the 2014 NPRM and this final rule as adopted. These changes include: (1) removing the phrase “including each planned impact” from § 417.107(b)(1) and (2) revising part 420 to account for revisions to the E
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.
In conducting these analyses, the FAA has determined that this final rule: (1) Has net benefits that justify the costs; (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or other private sectors by exceeding the threshold identified above.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. Based on the facts and methodology explained for the NPRM, the FAA provided cost-savings estimates for the proposed rule and requested comments. The FAA did not receive any comments on the estimates and thus the FAA follows the same approach herein. These analyses are summarized below.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR parts 417, 431, and 435 by changing the collective risk limits for launches and reentries and clarifying the risk limit used to establish hazard areas for ships and aircraft. The NPRM was published in the
Prior to this final rule, the FAA prohibited the expected casualty (E
Under this final rule, the FAA separates its expected casualties (E
An E
Based on analysis of the historical data, the FAA found the criteria are supported by the commercial mission experiences and post-mission safety data available since 1989. The FAA's launch data indicate during this time there were 45 suborbital launches and 193 orbital launches, for a total of 238 launches.
As discussed in the preamble above, the FAA believes managing the precision of rounding digits below and above the E
The criteria also separately address the public risk limits of toxic release and inert and explosive debris risks for reentry operations by establishing public safety requirements similar to current practice. Based on past practices of administering reentry licenses, the FAA found it was unrealistic and unnecessary to administer reentry licenses with a strict E
The final rule revises reentry E
The FAA finalizes the NPRM's proposal to include the risks associated with toxic release in the E
The propellant load for a reentry vehicle using parachutes to land is generally minimal because most of the propellant will have been used before landing. The E
The changes in the risk limits apply to all three hazards combined rather than to each individual hazard. This final rule permits launch or reentry operations without requiring operators to seek FAA waivers as long as the
Based on historical records of requests and FAA-issued waivers from the previous E
The methodology of this final regulatory impact analysis (RIA) mirrors the RIA associated with the NPRM. The cost of a formal waiver request to industry ranges from $137,097 for 1,717 hours to $195,094 for 2,443 hours of aerospace engineering time to prepare and submit the necessary documentation to the FAA for approval.
The final rule may also result in cost-saving by reducing launch delays and mission scrubs. The FAA currently does not have sufficient data to quantify these savings, but believes the possible reduction of launch delays and mission scrubs may increase the overall capacity of the U.S. space transportation industry. Accordingly, the FAA sought comments on cost-savings in the NPRM and did not receive comments on the estimated benefits of reduced launch delays and mission scrubs. Therefore, the FAA maintains the same benefit determination.
In summary, the final rule maintains safety levels for commercial space transportation commensurate with the current requirements applied to launches and reentries. In addition, the final rule will result in net benefits for both industry and government. The net benefit will be achieved by avoiding costs pertaining to applying and granting waivers with E
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required.
The FAA expects many small entities will benefit from this final rule because the regulatory revisions to the collective E
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA assesses the potential effect of this final rule and thus determines that the rule does not impose obstacles to foreign commerce, as foreign exporters do not have to change their current export products to the United States.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a final rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
An electronic copy of a rulemaking document my be obtained by using the Internet—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Publishing Office's Web page at
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Comments received may be viewed by going to
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the
Launch and reentry safety, Aviation safety, Reporting and recordkeeping requirements, Rockets, Space transportation and exploration.
Environmental protection, Launch safety, Reporting and recordkeeping requirements, Space transportation and exploration.
Launch and reentry safety, Aviation safety, Reporting and recordkeeping requirements, Rockets, Space transportation and exploration.
In consideration of the foregoing, the Federal Aviation Administration amends chapter III of title 14, Code of Federal Regulations as follows:
51 U.S.C. 50901-50923.
(b) * * *
(1) A launch operator may initiate the flight of a launch vehicle only if the total risk associated with the launch to all members of the public, excluding persons in water-borne vessels and aircraft, does not exceed an expected number of 1 × 10
(2) A launch operator may initiate flight only if the risk to any individual member of the public does not exceed a casualty expectation of 1 × 10
(3) A launch operator must establish any water borne vessel hazard areas necessary to ensure the probability of impact (P
(4) A launch operator must establish any aircraft hazard areas necessary to ensure the probability of impact (P
51 U.S.C. 50901-50923.
(a) * * *
(1) A safe launch must possess a risk level estimated, in accordance with the requirements of this part, not to exceed an expected number of 1 × 10
(a) * * *
(2) Includes an overflight exclusion zone where the public risk criteria of 1 × 10
(b) * * *
(3) Includes an overflight exclusion zone where the public risk criteria of 1 × 10
(c) * * *
(1) * * *
(ii) An overflight exclusion zone where the public risk criteria of 1 ×
(b) For licensed launches, the FAA will not approve the location of the proposed launch point if the estimated expected casualty exceeds 1 × 10
(a) * * *
(2) An applicant shall perform a risk analysis when a populated area is located within a flight corridor defined by either appendix A or appendix B. If the estimated expected casualty exceeds 1 × 10
(d) * * *
(1) If the estimated expected casualty does not exceed 1 × 10
(2) If the estimated expected casualty exceeds 1 × 10
(a) * * *
(5) If the estimated E
(e) * * *
(2) If the estimated expected casualty does not exceed 1 × 10
(3) If the estimated expected casualty exceeds 1 × 10
51 U.S.C. 50901-50923.
(b) * * *
(1) To obtain safety approval, an applicant must demonstrate the following for public risk:
(i) The risk to the collective members of the public from the proposed launch meets the public risk criteria of § 417.107(b)(1) of this chapter;
(ii) The risk level to the collective members of the public, excluding persons in water-borne vessels and aircraft, from each proposed reentry does not exceed an expected number of 1 × 10
(iii) The risk level to an individual does not exceed 1 × 10
(d) * * *
(2) The expected number of casualties to members of the public does not exceed 1 × 10
51 U.S.C. 50901-50923.
To obtain safety approval for reentry, an applicant must demonstrate the following for public risk:
(a) The risk to the collective members of the public from the proposed launch meets the public risk criteria of § 417.107(b)(1) of this chapter;
(b) The risk level to the collective members of the public, excluding persons in water-borne vessels and aircraft, from each proposed reentry does not exceed an expected number of 1 × 10
(c) The risk level to an individual does not exceed 1 × 10
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters surface to bottom, of the Houma Navigation Canal from mile marker 23 to 23.5. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by replacement work of the Falgout Canal Pontoon Bridge. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Morgan City or a designated representative.
This rule is effective without actual notice from 7:00 a.m. until 7:00 p.m. daily from July 20, 2016 through July 27, 2016. For the purposes of enforcement, actual notice will be used from 7:00 a.m. until 7:00 p.m. daily from July 7, 2016 through July 20, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, contact MSTC Justin Helton, Marine Safety Unit Houma, U.S. Coast Guard; telephone 985-850-6457, 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 the Coast Guard did not receive notice of the bridge repairs until June 21, 2016. Completing the NPRM process would delay the immediate action needed to protect the public from hazards associated with the Falgout Canal Pontoon Bridge replacement. It is impracticable to publish an NPRM because we must establish this safety zone by July 7, 2016.
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 Morgan City (COTP) has determined that potential hazards associated with the Falgout Canal Pontoon Bridge replacement between 7:00 a.m. and 7:00 p.m. from July 7 through July 27, 2016 will be a safety concern for anyone within the area extending from MM 23 to 23.5 of the Houma Navigation Canal. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the Falgout Canal Pontoon Bridge is being replaced.
This rule establishes a safety zone from 7:00 a.m. until 7:00 p.m. from July 7 through July 27, 2016. The safety zone will cover all navigable waters, surface to bottom, of the Houma Navigation Canal from MM 23 to 23.5. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the Falgout Canal Pontoon Bridge is being repaired. 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 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 specific times of enforcement for the temporary safety zone. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the Falgout Canal Pontoon Bridge is being replaced. This temporary safety zone will be enforced during specific times during daylight hours for bridge replacement operations only, and limits access to a small area on the waterway covering one-half mile. Vessels will be able to request passage through area from the COTP. Additionally, there will be a break in operation allowing any build up of traffic to pass on a once daily basis.
No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The Coast Guard will issue a 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, during daylight hours, lasting less than 13 hours per day for 21 days that will prohibit entry into or transit within MM 23 to 23.5 of the Houma Navigation Canal. 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) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.
(d)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a second 10-year carbon monoxide (CO) limited maintenance plan (LMP) for the Medford area in Oregon, submitted by the Oregon Department of Environmental Quality (tODEQ) on December 11, 2015, along with a supplementary submittal on December 30, 2015, as a revision to its State Implementation Plan (SIP). In accordance with the requirements of the Clean Air Act (CAA), the EPA is approving this SIP revision because it demonstrates that the Medford area will continue to meet the CO National Ambient Air Quality Standards (NAAQS) for a second 10-year period beyond redesignation, through 2025.
This rule is effective on September 19, 2016, without further notice, unless the EPA receives adverse comment by August 19, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2015-0854 at
John Chi, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, 1200 6th Avenue, Seattle, WA 98101; telephone number: 206-553-1185; email address:
Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.
The EPA is approving the carbon monoxide limited maintenance plan (CO LMP) submitted by the ODEQ, on December 11, 2015, along with a supplementary submittal on December 30, 2015, (the submittal) for the Medford area. A LMP is a means of meeting Clean Air Act (CAA) requirements for formerly designated nonattainment areas that meet certain qualification criteria. This CO LMP is designed to keep the Medford area in attainment with the CO standard for a second 10-year period beyond redesignation, through 2025.
Under section 107(d)(1)(c) of the CAA, each CO area designated nonattainment prior to enactment of the 1990 Amendments, such as Medford, was designated nonattainment by operation of law upon enactment of the 1990 Amendments. Under section 186(a) of the CAA, each CO area designated nonattainment under section 107(d) was also classified by operation of law as either “moderate” or “serious” depending on the severity of the area's air quality problem. CO areas with design values between 9.1 and 16.4 parts per million (ppm), such as Medford, were classified as moderate. These nonattainment designations and classifications were codified in 40 CFR part 81 on November 6, 1991 (56 FR 56695).
On July 24, 2002, the EPA approved the ODEQ's request to redesignate the Medford area to attainment of the CO standard (67 FR 48388). In that action, the EPA also approved the maintenance plan required under CAA section 175A(a) to provide for 10 years of maintenance of the CO standard in the Medford area through the year 2015 (67 FR 48388).
As required by the CAA section 175A(b), the SIP submittal provides a second 10-year plan for maintaining the CO standard in the Medford area until 2025. For the second 10-year maintenance plan, the ODEQ chose the option as described in an EPA October 6, 1995 memorandum from Joseph Paisie, the Group Leader of the Integrated Policy and Strategies Group, titled, “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas” (LMP Option). To qualify for the LMP Option, the CO design value for an area, based on the eight consecutive quarters (two years of data) used to demonstrate attainment, must be at or below 7.65 ppm (85 percent of the CO NAAQS). In addition, the control measures from the first CO maintenance plan must remain in place.
The EPA has determined that the LMP Option for CO is also available to all states as part of the CAA 175A(b) update to the maintenance plans, regardless of the original nonattainment classification, or lack thereof. Thus, the EPA finds that although the Medford area was designated as a moderate nonattainment area for the CO NAAQS, redesignation to attainment status in conjunction with meeting all requirements of the October 6, 1995, memorandum, allows the ODEQ to be eligible to submit a LMP as the update to its original maintenance plan per section 175A(b) of the CAA.
The requirements of the LMP Option and the EPA's evaluation of how each requirement has been met by the ODEQ's submittal is summarized below.
The LMP must contain an attainment year emissions inventory to identify a level of CO emissions in the area that is sufficiently low enough to attain the CO NAAQS. The submittal contains a summary of the CO emissions inventory for the Medford area for the base year 2008. The emission inventory lists CO emissions by general source category—stationary point sources, stationary area sources, on-road mobile sources and non-road mobile sources. On-road mobile sources emissions for the 2008 base year inventory were estimated with the EPA's Motor Vehicle Emissions Simulator (MOVES) 2010b.
Historically, exceedances of the CO standard in the Medford area have occurred during the winter months, when cooler temperatures contribute to incomplete combustion, and when CO emissions are trapped near the ground by atmospheric inversions. Sources of carbon monoxide include industry, motor vehicles, non-road mobile sources, (
The CO NAAQS is attained when the annual second highest 8-hour average CO concentration for an area does not exceed a concentration of 9.0 ppm. The last monitored violation of the CO NAAQS in the Medford area occurred in 1991, and CO levels have been steadily in decline. The second highest 8-hour CO concentration in 2009 was 2.4 ppm, which is in attainment with the CO NAAQS.
For areas that meet the criteria to use the LMP Option, the maintenance plan demonstration requirement is considered to be satisfied. The EPA believes that if the area begins the maintenance period at, or below, 85 percent of the level of the CO 8-hour NAAQS (at or below 7.65 ppm), the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and Federal control measures already in place will provide adequate assurance of maintenance over the maintenance period. Thus, there is no requirement to project emissions of air quality over the upcoming maintenance period. The second highest 8-hour CO concentration for Medford based on the two most recent years of data (2008-2009) is 2.4 ppm, which is significantly below the LMP Option requirement of 7.65 ppm.
The submittal retains the control measures from the first CO maintenance plan (67 FR 48388). The primary control measure has been the emission standards for new motor vehicles under the Federal Motor Vehicle Control Program. Other control measures have been the Major New Source Review Program with Best Available Control Technology (BACT), Motor Vehicle Inspection Program, and a woodsmoke curtailment program. As stated above, the EPA believes that the Medford area will continue to maintain the standard with the continued implementation of these control measures along with meeting the other requirements to qualify for the LMP option.
Monitored CO levels in the Medford area have declined progressively since 1991. CO levels have declined significantly across the nation through motor vehicle emissions controls and fleet turnover to newer, cleaner vehicle models. Once CO levels declined and continued to stay well below the NAAQS, the ODEQ requested to remove the Medford CO monitor in 2009 and the EPA approved the request on October 14, 2010. The ODEQ now has been using an alternate method of verifying continued attainment with the CO standard based on the regional emissions analysis conducted by the Rogue Valley Metropolitan Planning Organization and by using the Portland CO monitor to track trends in general CO levels. Both the ODEQ report and the EPA network approval letter are included in the materials of this docket.
Under the Medford CO LMP, the ODEQ will verify continued attainment of the CO NAAQS by conducting a review of CO emissions inventory data for the Medford area. The ODEQ will calculate CO emissions every three years as part of the Statewide Emissions Inventory, which is submitted to the EPA for inclusion in the National Emissions Inventory (NEI). The ODEQ commits to review the NEI estimates to identify any increases over the 2008 emission levels (see the base year emissions inventory in this section) and report on them in the annual monitoring network plan for the applicable year. Because on-road mobile sources and stationary area sources are the predominant sources of CO in Medford, these source categories will be the primary focus of the ODEQ's review. The ODEQ will evaluate any increase in CO emissions to confirm it is not due to a change in emission calculation methodology, an exceptional event, or other factor not representative of an actual emissions increase.
Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions necessary to ensure prompt correction of any violations of the standard that may occur. The ODEQ has submitted a revised contingency plan that has three phase of action. The initial contingency plan trigger is a “significant increase” in the emissions inventory, which is defined as ten percent above the 2008 emissions inventory levels. The three phases of actions are as follows:
Federal transportation conformity rules (40 CFR parts 51 and 93) and general conformity rules (58 FR 63214) continue to apply under a LMP. However, as noted in the LMP Option memo, these requirements are greatly simplified. An area under a LMP can demonstrate conformity without submitting an emissions budget, and as a result, emissions do not need to be capped nor does a regional emissions
On April 28, 2016, the EPA found the Medford CO LMP to be adequate for transportation conformity purposes (81 FR 25394). Although regional emissions are no longer required as part of the transportation conformity determinations for CO for the Medford area, other transportation conformity requirements continue to apply to the area, such as consultation, transportation control measures, and project level conformity requirements. The Medford area will continue to be exempt from performing a regional emission analysis, but must meet project-level conformity analyses as well as transportation conformity areas.
In accordance with the requirements of the CAA, the EPA is approving the Medford CO LMP submitted by the ODEQ on December 11, 2015, and supplemented on December 30, 2015. The ODEQ has adequately demonstrated that the Medford area qualifies for the LMP option and will maintain the CO NAAQS through the second 10-year maintenance period through 2025.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the 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 action does not involve technical standards; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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 September 19, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of the
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the State Implementation Plan (SIP) for the State of Kansas. This final action will approve Kansas' SIP for the lead National Ambient Air Quality Standard (NAAQS) nonattainment area of Salina, Saline County, Kansas, received by EPA on February 25, 2015. EPA proposed approval of this plan on February 29, 2016. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the Clean Air Act (CAA) identified in EPA's Final Rule published in the
This final rule is effective on August 19, 2016.
EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2015-0708. All documents in the docket are listed on the
Stephanie Doolan, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7719, or by email at
Throughout this document “we,” “us,” or “our” refer to EPA.
In this document, EPA is granting final approval of Kansas' attainment demonstration SIP for the lead NAAQS nonattainment area in portions of Salina, Saline County, Kansas. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will bring the area into attainment of the 0.15 microgram per cubic meter (ug/m
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
The public comment period on EPA's proposed rule opened February 29, 2016, the date of its publication in the
“The Exide facility in Salina, Kansas, manufactures lead acid batteries for automobiles, trucks, and watercraft. Lead emissions result from breaking open used batteries, re-melting the lead and reformulating new batteries.”
Exide commented that EPA is in error regarding the description of the facility's processes; the Exide Salina, Kansas, facility does not break open used
EPA is taking final action to amend the Kansas SIP to approve Kansas' attainment demonstration SIP for the 2008 lead NAAQS. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008 (73 FR 66964).
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the EPA-Approved Kansas Source-Specific Requirements. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.
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 application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 September 19, 2016. Filing a petition for reconsideration by the Administrator of this rule does not affect the finality of this rulemaking 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 future rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2))
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.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
The additions read as follows:
(d) * * *
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island on January 7, 2015. This SIP revision includes Rhode Island's regional haze progress report and adequacy determination for the first regional haze implementation period. This action is being taken under the Clean Air Act (CAA).
This direct final rule will be effective September 19, 2016, unless EPA receives adverse comments by August 19, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2015-0015 by one of the following methods at
Anne K. McWilliams, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109—3912, telephone (617) 918-1697, facsimile (617) 918-0697, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Organization of this document. The following outline is provided to aid in locating information in this preamble.
States are required to submit a progress report in the form of a SIP revision every five years which evaluates progress towards the Reasonable Progress Goals (RPGs) for each mandatory Class I Federal area (Class I area)
On January 7, 2015, the Rhode Island Department of Environmental Management (RI DEM) submitted a revision to the Rhode Island SIP detailing the progress made in the first planning period toward implementing the Long Term Strategy (LTS) outlined in the 2009 Regional Haze submittal. Because Rhode Island is not home to a Class I area, the State's Regional Haze SIP for the first planning period does not establish RPGs. During the consultation process with nearby States with Class I areas, it was determined that Rhode Island's emissions do not cause or contribute to the visibility impairment at any Class I area.
Under 40 CFR 51.308(g), States must submit a regional haze progress report, as a SIP revision, every five years and must address the seven elements found in 40 CFR 51.308(g). As described in further detail in section III of this rulemaking, 40 CFR 51.308(g) requires: (1) A description of the status of measures in the approved regional haze SIP; (2) a summary of emissions reductions achieved; (3) an assessment of the visibility conditions for each Class I area in the state; (4) an analysis of changes in emissions from sources and activities within the state; (5) an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded progress in Class I areas impacted by the state's sources; (6) an assessment of the sufficiency of the approved regional haze SIP; and (7) a review of the state's visibility monitoring strategy.
Under 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of the following four possible actions based on information in the progress report: (1) Submit a negative declaration to EPA that no further substantive revision to the state's existing regional haze SIP is needed; (2) provide notification to EPA (and other state(s) that participated in the regional planning process) if the state determines that the existing regional haze SIP is, or may be, inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in other state(s) that participated in the regional haze planning process, and collaborated with these other state(s) to develop additional strategies to address deficiencies; (3) provide notification with supporting information to EPA if the state determines that its existing regional haze SIP is, or may be, inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in another county; or (4) revise its regional haze SIP to address deficiencies within one year if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress in one or more Class I areas due to emission from sources within the state.
On January 7, 2015, Rhode Island submitted the “Rhode Island Regional Haze Five Year Progress Report” (Progress Report) to EPA as a SIP revision.
This section summarizes each of the seven elements that must be addressed by the Progress Report under 40 CFR 51.308(g); how Rhode Island's Progress Report addressed each element; and EPA's analysis and determination as to whether the State satisfied each element.
The provision under 40 CFR 51.308(g)(1) requires a description of the status of implementation of all measures included in the regional haze SIP for achieving RPGs for Class I areas both within and outside the state which may be impacted by emissions from the State. During the regional haze planning process, an area-of-influence modeling analysis based on back trajectories was used to assess Rhode Island's contribution to visibility impairment in other states.
In its Progress Report, Rhode Island summarized the status of these measures in accordance with the requirements under 40 CFR 51.308(g)(1). Rhode Island is not home to any BART sources or targeted EGUs. Although Rhode Island did not include a low sulfur fuel oil strategy in its 2009 Regional Haze SIP, the State committed to adopt a low-sulfur fuel strategy during the first planning period. The 2015 Progress Report details the adoption and implementation of the State's revised low sulfur fuel oil regulation
EPA finds that Rhode Island's analysis adequately addresses the provision under 40 CFR 51.308(g)(1). The State documents the implementation of a low sulfur fuel strategy which the State committed to adopt in the 2009 Regional Haze SIP.
The provision under 40 CFR 51.308(g)(2) requires a summary of the emission reductions achieved in the state through the measures subject to the requirements under 40 CFR 51.308(g)(1). In the Progress Report, RI DEM presents the State's annual sulfur dioxide (SO
EPA finds that Rhode Island has adequately addressed the provision under 40 CFR 51.308(g)(2). As discussed above, Rhode Island was not found to be contributing to the visibility impairment at any Class I area. However, the State has demonstrated a 40% reduction in the predominant visibility impairing pollutant (SO
The provisions under 40 CFR 51.308(g)(3) require that states with Class I areas within their borders provide the following information for the most impaired days and least impaired days
Because Rhode Island does not have any Class I areas within its borders and the state was found not to contribute to any other Class I area, EPA concludes that Rhode Island's progress report is not required to address 40 CFR 51.308(g)(3).
The provision under 40 CFR 51.308(g)(4) requires an analysis tracking emissions changes of visibility-impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emissions inventory. In its Progress Report to address the requirements of 40 CFR 51.308(g)(4), Rhode Island presents data from the baseline 2002 and 2011 NEI statewide emissions inventories for SO
EPA finds that Rhode Island's Progress Report adequately addresses the provision under 40 CFR 51.308(g)(4). RI DEM compared the most recent updated emission inventory data available at the time of the development of the Progress Report with the baseline emissions from the Regional Haze SIP. The Progress Report appropriately details the 2011 SO
The provision under 40 CFR 51.308(g)(5) requires an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred over the past five years that have limited or impeded progress in reducing pollutant emissions and improving visibility in the Class I areas impacted by the state's sources. In the Progress Report, RI DEM reiterated that Rhode Island was found not to be causing or contributing to the visibility impairment at any Class I area, and that the State was implementing a low-sulfur fuel oil strategy which will lead to additional reductions in SO
EPA finds that Rhode Island adequately addressed the provision under 40 CFR 51.308(g)(5). There have not been any significant changes in anthropogenic emissions within the state which has limited or impeded progress in reducing pollutant emissions and improving visibility at the nearby Class I areas.
The provision under 40 CFR 51.308(g)(6) requires an assessment of whether the current regional haze SIP is sufficient to enable the state, or other states, to meet the RPGs for the Class I areas affected by emissions from the state. In the Progress Report, Rhode Island reiterated that the State is not home to any Class I area nor were the emissions from Rhode Island found to cause or contribute to the visibility impairment at any nearby Class I area. Rhode Island also showed that SO
EPA finds that the state has adequately addressed the provision under 40 CFR 51.308(g)(6) which requires an assessment of whether the Rhode Island Regional Haze SIP submittal is sufficient to enable the state, or other states, to meet the RPGs for the Class I areas affected by emissions from the state.
The provision under 40 CFR 51.308(g)(7) requires the review of a state's visibility monitoring strategy for Class I areas and an assessment of whether any modifications to the monitoring strategy are necessary. Because Rhode Island does not have any Class I areas within its borders, EPA concludes that Rhode Island's Progress Report is not required to address 40 CFR 51.308(g)(7).
Under 40 CFR 51.308(h), states are required to take one of four possible actions based on the information gathered and conclusions made in the progress report SIP.
In the Progress Report SIP, Rhode Island took the action provided for by the provisions under 40 CFR 51.308(h)(1), which allow a state to submit a negative declaration to EPA if the state determines that the existing SIP requires no further substantive revision at this time to achieve the RPGs at nearby Class I areas. The basis for the State's negative declaration is the determination that emissions from Rhode Island do not cause or contribute to the visibility impairment at any Class I area. In addition, the State demonstrated SO
EPA finds that Rhode Island has adequately addressed the requirements of 40 CFR 51.308(h). Even though Rhode Island does not impact the visibility at any nearby Class I areas, the State has reduced emissions of visibility impairing pollutants and is on track to achieve the long term strategy detailed in its 2009 Regional Haze SIP for the first regional haze planning period. Therefore, the existing Rhode Island Regional Haze SIP requires no substantive revisions to achieve the RPGs for nearby Class I areas.
EPA is approving Rhode Island's Regional Haze Five Year Progress Report SIP revision, submitted by RI DEM on January 7, 2015, as meeting the applicable regional haze requirements set forth in 40 CFR 51.308(g) and (h).
The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 19, 2016 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (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 application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action finding that Maryland has failed to submit an infrastructure state implementation plan (SIP) to satisfy certain interstate transport requirements of the Clean Air Act (CAA) with respect to the 2008 8-hour ozone national ambient air quality standard (NAAQS). Specifically, these requirements pertain to the obligation to prohibit emissions which significantly contribute to nonattainment, or interfere with maintenance, of the 2008 8-hour ozone NAAQS in other states. This finding of failure to submit establishes a 2-year deadline for EPA to promulgate a federal implementation plan (FIP) to address the interstate transport SIP requirements pertaining to significant contribution to nonattainment and interference with maintenance of the 2008 ozone NAAQS in other states unless, prior to EPA promulgating a FIP, the state submits, and EPA approves, a SIP that meets these requirements.
This final rule is effective on August 19, 2016.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0270. All documents in the docket are listed in the
Marilyn Powers, (215) 814-2308, or by email at
Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this final agency action without prior proposal and opportunity for comment because no significant EPA judgment is involved in making a finding of failure to submit SIPs, or elements of SIPs, required by the CAA, where states have made no submissions, or incomplete submissions, to meet the requirement. Thus, notice and public procedures are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
CAA section 110(a) imposes an obligation upon states to submit SIPs that provide for the implementation, maintenance and enforcement of a new or revised NAAQS within 3 years following the promulgation of that NAAQS. Section 110(a)(2) lists specific requirements that states must meet in these SIP submissions, as applicable. EPA refers to this type of SIP submission as the “infrastructure” SIP because it ensures that states can implement, maintain and enforce the air standards. Within these requirements, section 110(a)(2)(D)(i) contains requirements to address interstate transport of NAAQS pollutants. A SIP revision submitted for this sub-section is referred to as an “interstate transport SIP.” In turn, section 110(a)(2)(D)(i)(I) requires that such a plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS in any other state (prong 1) or interfere with maintenance of the NAAQS in any other state (prong 2). Interstate transport prongs 1 and 2, also called the “good neighbor” provisions, are the requirements relevant to this findings document.
Pursuant to CAA section 110(k)(1)(B), EPA must determine no later than 6 months after the date by which a state is required to submit a SIP whether a state has made a submission that meets the minimum completeness criteria established per section 110(k)(1)(A). EPA refers to the determination that a state has not submitted a SIP that meets the minimum completeness criteria as a “finding of failure to submit.” If EPA finds a state has failed to submit a SIP to meet its statutory obligation to address 110(a)(2)(D)(i)(I), pursuant to section 110(c)(1) EPA has not only the authority, but the obligation, to promulgate a FIP within 2 years to address the CAA requirement. This finding therefore starts a 2-year clock for promulgation by EPA of a FIP, in accordance with CAA section 110(c)(1), unless prior to such promulgation the state submits, and EPA approves, a submittal from the state to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. EPA notes this action does not start a mandatory sanctions clock pursuant to CAA section 179 because this finding of failure to submit does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).
On March 12, 2008, EPA strengthened the NAAQS for ozone. EPA revised the 8-hour primary ozone standard from 0.08 parts per millions (ppm) to 0.075 ppm. EPA also revised the secondary 8-hour standard to the level of 0.075 ppm making it identical to the revised primary standard. Infrastructure SIPs addressing the revised standard, including the interstate transport requirements, were due March 12, 2011.
On December 27, 2012, Maryland submitted an infrastructure SIP for the 2008 ozone NAAQS. EPA determined the December 27, 2012 SIP submittal as complete on January 2, 2013. On May 2, 2014, EPA proposed approval of Maryland's infrastructure SIP submittal for the 2008 ozone NAAQS, but did not propose to take action on the portion of the submittal related to section 110(a)(2)(D)(i)(I), stating that EPA would take separate action on this part of the submittal.
On July 13, 2015, EPA published a rule finding that 24 states failed to submit complete SIPs that addressed the “good neighbor” provision for the 2008 Ozone NAAQS.
On April 20, 2016, EPA received a letter, dated April 12, 2016,
With the withdrawal of the good neighbor portion of the December 27, 2012 infrastructure SIP submittal, Maryland has not submitted to EPA a SIP to address CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA is therefore finding that Maryland has failed to submit a complete good neighbor SIP to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. This finding starts a 2-year clock for promulgation by EPA of a FIP after the effective date of this final rule, in accordance with section 110(c)(1), unless prior to such promulgation that Maryland submits, and EPA approves, a submittal that meets the requirements of CAA section 110(a)(2)(D)(i)(I). This finding of failure to submit does not impose sanctions, and does not set deadlines for imposing sanctions as described in section 179, because it does not pertain to the elements of a CAA title I, part D plan for nonattainment areas as required under section 110(a)(2)(I), and because this action is not a SIP call pursuant to section 110(k)(5).
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements because the agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in the CAA under section 110(a) without the exercise of any policy discretion by the EPA.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. This rule responds to the requirement in the CAA for states to submit SIPs under section 110(a) to address CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. No tribe is subject to the requirement to submit an implementation plan under section 110(a) within 3 years of promulgation of a new or revised NAAQS. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 19, 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 finding that Maryland has failed to submit a CAA section 110(a)(2)(D)(I)(I) SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Intergovernmental relations, Ozone.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate (CAS Reg. No. 66573-43-1) when used as an inert ingredient in a pesticide chemical formulation. Celanese Ltd submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate on food or feed commodities.
This regulation is effective July 20, 2016. Objections and requests for hearings must be received on or before September 19, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0149, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0149 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 19, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0149, by one of the following methods.
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.
1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.
2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.
3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).
4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.
5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.
7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as specified in 40 CFR 723.250(d)(6).
Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).
8. The polymer's number average MW of 20,500 is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.
Thus, 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.
For the purposes of assessing potential exposure under this exemption, EPA considered that 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate is 20,500 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate to share a common mechanism of toxicity with any other substances, and 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.
Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.
There are no existing exemptions from a tolerance for 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.
Accordingly, EPA finds that exempting residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate from the requirement of a tolerance will be safe.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; correcting amendment.
This document corrects a technical error that appeared in the final rule published in the May 6, 2016
Melissa Williams, (410) 786-4435, CHIP.
In FR Doc. 2016-09581 (81 FR 27498 through 27901), the final rule entitled, “Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability” there was a technical error that is identified and corrected in this correcting document. The correction is applicable as of July 5, 2016.
On page 27896 of the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule, we made a technical error in the regulation text of § 457.10. In this paragraph, we inadvertently omitted an amendatory instruction to add the definition of “Federally Qualified HMO” in alphabetical order. Accordingly, we are revising the amendatory instruction for § 457.10 to add this definition as it was published in the May 6, 2016
Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the
In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects technical errors in the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were adopted subject to notice and comment procedures in the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule. As a result, the corrections made through this correcting document are intended to ensure that the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule accurately reflects the policies adopted in that rule.
Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule accurately reflects our final policies as soon as possible following the date they take effect. Further, such procedures would be unnecessary, because we are not altering the payment methodologies or policies or making any substantive revision to the description of the definition as proposed or purported to be finalized in the preamble of the final rule, but rather, we are simply correcting the
Administrative practice and procedure, Grant programs-health, Health insurance, Reporting and recordkeeping requirements.
Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendment to part 457:
Section 1102 of the Social Security Act (42 U.S.C. 1302).
U.S. Agency for International Development.
Direct final rule.
The U.S. Agency for International Development (USAID) is revising the Agency for International Development Acquisition Regulation (AIDAR) clause to conform to the current requirements of the Cargo Preference Act of 1954 and provide up-to-date submission instructions to the Maritime Administration (MARAD).
This rule is effective October 18, 2016 without further action, unless adverse comments are received by September 19, 2016. If adverse comments are received, USAID will publish a timely withdrawal of this rule in the
Address all comments concerning this notice to Lyudmila Bond, Bureau for Management, Office of Acquisition and Assistance, Policy Division (M/OAA/P), Room 867J, SA-44, Washington, DC 20523-2052. Submit comments, identified by title of the action and Regulation Identifier Number (RIN) by any of the following methods:
1. Through the Federal eRulemaking Portal at
2. By Email: Submit electronic comments to
3. By Mail addressed to: USAID, Bureau for Management, Office of Acquisition & Assistance, Policy Division, Room 867J, SA-44, 1300 Pennsylvania Ave. NW., Washington, DC 20523-2052.
Lyudmila Bond, Telephone: 202-567-4753 or Email:
All comments must be in writing and submitted through one of the methods specified in the
Comments submitted by email must be included in the text of the email or attached as a PDF file. Please avoid using special characters and any form of encryption. Please note that USAID recommends sending all comments to the Federal eRulemaking Portal because security screening precautions have slowed the delivery and dependability of surface mail to USAID/Washington.
After receipt of a comment and until finalization of the action, all comments will be made available at
USAID is publishing this revision as a direct final rule as the Agency views this as a conforming and administrative amendment and does not anticipate any adverse comments. This rule will be effective on the date specified in the
USAID will only address substantive comments on the rule. Comments that are insubstantial or outside the scope of the rule may not be considered.
If adverse comments are received on the direct final rule, USAID will publish a timely withdrawal in the
USAID will address all public comments in a subsequent final rule based on the proposed rule. USAID will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.
USAID is revising AIDAR section 752.247-70, Preference for privately owned U.S.-flag commercial vessels to conform to the current requirements of the Cargo Preference Act of 1954. The Act mandates that at least 50 percent of the gross tonnage of all Government generated cargo be transported on privately owned, U.S.-flag commercial vessels, to the extent such vessels are available at fair and reasonable rates. Other changes to the clause include up-to-date submission requirements to the Maritime Administration (MARAD). The changes will not impose any additional requirements on contractors.
Under E.O. 12866, USAID must determine whether a regulatory action is “significant” and therefore subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). USAID has determined that this Rule is not an “economically significant regulatory action” under Section 3(f)(1) of E.O. 12866. This rule is not a major rule under 5 U.S.C. 804.
The rule will not have an impact on a substantial number of small entities within the meaning of the Regulatory
The rule does not establish a new collection of information that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
For the reasons discussed in the preamble, USAID amends 48 CFR part 752 as set forth below:
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 1979 Comp., p. 435.
The addition reads as follows:
(c)(1) * * *
(iii) For all shipments, scanned copies for MARAD must be sent to:
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service, are issuing a final rule to comply with a court order that vacated the final rule listing the lesser prairie-chicken (
This rule is effective July 20, 2016.
Debra Bills, Field Supervisor, Arlington Ecological Services Field Office, 2005 NE. Green Oaks Blvd., Suite 140, Arlington, TX 76006; by telephone 817-277-1100; or by facsimile 817-277-1129. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
On April 10, 2014, we published in the
On June 9, 2014, the Permian Basin Petroleum Association; Chaves County, New Mexico; Roosevelt County, New Mexico; Eddy County, New Mexico; and Lea County, New Mexico (plaintiffs) filed a lawsuit challenging the Service's final rule to list the lesser prairie-chicken as a threatened species under the Act. On September 1, 2015, the U.S. District Court for the District of West Texas issued an order vacating the final listing rule for the lesser prairie-chicken. By invalidating the rule listing the species, the court decision also had the effect of invalidating the 4(d) rule.
This rulemaking is necessary to comply with the September 1, 2015, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are unnecessary. Because the court order had legal effect immediately upon being filed on September 1, 2015, the Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make this rule effective immediately upon publication.
This rule is an administrative action to remove the lesser prairie-chicken from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to reflect the court's order to vacate the final rule listing this species. Consequently, this rule also removes the regulations specific to the lesser prairie-chicken at 50 CFR 17.41(d).
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, for the reasons given in the preamble, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below.
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
U.S. Office of Personnel Management.
Proposed rule with request for comments.
The U.S. Office of Personnel Management (OPM) is issuing a proposed rule that would redefine the geographic boundaries of the New York, NY, and Philadelphia, PA, appropriated fund Federal Wage System (FWS) wage areas. The proposed rule would redefine the Joint Base McGuire-Dix-Lakehurst portions of Burlington County, NJ, and Ocean County, NJ, that are currently defined to the Philadelphia wage area to the New York wage area so that the entire Joint Base is covered by a single wage schedule. This change is based on a majority recommendation of the Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on the administration of the FWS.
We must receive comments on or before August 19, 2016.
You may submit comments, identified by “RIN 3206-AN29,” using any of the following methods:
Madeline Gonzalez, by telephone at (202) 606-2838 or by email at
OPM is issuing a proposed rule to redefine the geographic boundaries of the New York, NY, and Philadelphia, PA, appropriated fund FWS wage areas. The proposed rule would redefine the Joint Base McGuire-Dix-Lakehurst portions of Burlington County, NJ, and Ocean County, NJ, that are currently defined to the Philadelphia wage area to the New York wage area so that the entire Joint Base is covered by a single FWS wage schedule.
Presently, portions of the Joint Base are defined to the Philadelphia and to the New York FWS wage areas as follows:
(1) The portion of the Joint Base formerly known separately as McGuire Air Force Base (AFB) is in Burlington County, NJ, and is defined to the Philadelphia wage area;
(2) The portion of the Joint Base formerly known separately as Fort Dix is in Burlington and Ocean Counties, NJ, and is defined to the Philadelphia wage area; and
(3) The portion of the Joint Base formerly known separately as Naval Air Engineering Station (NAES) Lakehurst is in Ocean County, NJ, and is defined to the New York wage area.
When the Coordinated Federal Wage System (CFWS) established a uniform system of wage areas applicable to all Federal agencies in the late 1960s, Burlington County was defined to the Philadelphia survey area and Ocean County was defined to the Philadelphia area of application. Since both Burlington and Ocean Counties were defined to the Philadelphia wage area, employees at McGuire AFB, Fort Dix, and NAES Lakehurst were paid from the same Philadelphia wage schedule.
OPM reviewed the geographic definition of the New York and Philadelphia FWS wage areas in the mid-1990s as part of a comprehensive review of many FWS wage areas. After careful consideration of OPM's regulatory criteria for defining FWS wage areas, FPRAC recommended by majority vote that OPM redefine Ocean County (excluding the portion occupied by Fort Dix) from the area of application of the Philadelphia wage area to the area of application of the New York wage area. FPRAC recommended this change because Ocean County was part of the New York-Northern New Jersey-Long Island, NY-NJ-PA MSA (now called New York-Newark-Jersey City, NY-NJ-PA MSA) and the transportation facilities and commuting patterns regulatory criteria favored defining Ocean County (excluding the portion occupied by Fort Dix) to the New York wage area rather than to the Philadelphia wage area. Although NAES Lakehurst was adjacent to Fort Dix, the Committee heard local testimony that there was little workforce interaction between NAES Lakehurst and Fort Dix or McGuire AFB.
Currently, Burlington County continues to be defined to the Philadelphia survey area, and FWS employees stationed in Burlington County at the Joint Base are paid from the Philadelphia wage schedule. FWS employees stationed in Ocean County at the portion of the Joint Base formerly known separately as NAES Lakehurst are paid from the New York wage schedule. Local testimony to FPRAC from Joint Base employees and local managers indicates that the Joint Base has been presented with morale and management challenges by having employees at the Joint Base paid from two different FWS wage schedules. This poses challenges to the efficient operation of the installation. To address this anomalous situation affecting the Joint Base, OPM is proposing to add an additional criterion for defining FWS wage areas to 5 CFR 532.211.
OPM considers the following regulatory criteria under 5 CFR 532.211 when defining FWS wage area boundaries:
(i) Distance, transportation facilities, and geographic features;
(ii) Commuting patterns; and
(iii) Similarities in overall population, employment, and the kinds and sizes of private industrial establishments.
When measuring distances from the portion of the Joint Base formerly known separately as McGuire AFB, the distance criterion favors the Philadelphia wage area more than the New York wage area. When measured to nearby survey areas, the commuting patterns criterion for Burlington County favors the Philadelphia wage area more
When measuring distances from the portion of the Joint Base formerly known separately as NAES Lakehurst, the distance criterion favors the Philadelphia wage area more than the New York wage area. When measured to nearby survey areas, the commuting patterns criterion for Ocean County favors the New York wage area more than the Philadelphia wage area. The overall population and employment and the kinds and sizes of private industrial establishments criterion favors the Philadelphia wage area more than the New York wage area.
OPM regulations at 5 CFR 532.211 do not permit splitting Metropolitan Statistical Areas (MSAs) for the purpose of defining a wage area, except in very unusual circumstances. The status of the Joint Base presents an unusual circumstance that has in the past necessitated defining the New York and Philadelphia wage areas so that MSAs are split between the two wage areas. In addition, FPRAC has a longstanding policy of recommending that OPM avoid splitting individual installations between two separate wage areas. However, OPM has not previously regulated such a policy. OPM has previously determined that Burlington County is appropriately defined to the Philadelphia wage area and Ocean County, with the exception of the Fort Dix portion, is appropriately defined to the New York wage area.
FPRAC recently completed an exhaustive review to determine the best method to treat FWS employees at the Joint Base equitably. As an exception to the regular criteria for defining FWS wage areas, FPRAC has recommended by majority vote that the Joint Base be defined entirely as a single installation. In addition, FPRAC has recommended that the Joint Base be defined to the New York wage area. OPM agrees with FPRAC's assessment to treat the Joint Base as a single installation for purposes of defining FWS wage areas. However, OPM finds that a standard analysis of the current regulatory criteria indicates that the proper definition for the entire Joint Base would be the Philadelphia wage area. To address the anomalous situation with the Joint Base and define it to the New York wage area requires an amendment to OPM's current regulatory criteria for defining FWS wage area boundaries. Therefore, OPM is proposing that 5 CFR 532.211 be amended by adding a new paragraph (f). This new paragraph would read: “(f) A single contiguous military installation defined as a Joint Base that would otherwise overlap two separate wage areas shall be included in only a single wage area. The wage area of such a Joint Base shall be defined to be the wage area with the most favorable payline based on an analysis of the simple average of the 15 nonsupervisory second step rates on each one of the regular wage schedules applicable in the otherwise overlapped wage areas.” This new criterion would not impact any current wage areas other than the New York and Philadelphia wage areas which are currently overlapped by Joint Base McGuire-Dix-Lakehurst.
As of July 2015, OPM data indicate that around 630 FWS employees will be affected by the wage area changes proposed in this regulation. The New York wage schedule is currently higher than the Philadelphia wage schedule at most grade levels, which means most FWS employees at the Joint Base affected by this proposed regulation would receive higher wage rates. Those employees who would move to the New York wage schedule at grades where rates of pay are lower than on the Philadelphia wage schedule would be entitled to coverage under pay retention rules if otherwise eligible. The changes in this proposed regulation would be effective on the first day of the first applicable pay period beginning on or after 30 days following publication of a final regulation implementing any changes affecting the wage area definition of the Joint Base.
I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees.
This proposed rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 13563 and Executive Order 12866.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, OPM is proposing to amend 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
(f) A single contiguous military installation defined as a Joint Base that would otherwise overlap two separate wage areas shall be included in only a single wage area. The wage area of such a Joint Base shall be defined to be the wage area with the most favorable payline based on an analysis of the simple average of the 15 nonsupervisory second step rates on each one of the regular wage schedules applicable in the otherwise overlapped wage areas.
Animal and Plant Health Inspection Service, USDA
Proposed rule.
We are proposing to amend the regulations that set out our National Environmental Policy Act implementing procedures. The amendments include clarifying and amending the categories of action for which we would normally complete an environmental impact statement or an environmental assessment for an action, expanding the list of actions subject to categorical exclusion from further environmental documentation, and setting out an environmental documentation process that could be used in emergencies. The proposed changes are intended to update the regulations and improve their clarity and effectiveness.
We will consider all comments that we receive on or before September 19, 2016.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2013-0049, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Elizabeth E. Nelson, APHIS Federal NEPA Contact, Environmental and Risk Analysis Services, PPD, APHIS, 4700 River Road Unit 149, Riverdale, MD 20737-1238; (301) 851-3089.
The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
The Office of the Secretary of the U.S. Department of Agriculture (USDA) has set forth departmental policy on the implementation of NEPA in 7 CFR part 1b. Within USDA, the Animal and Plant Health Inspection Service (APHIS) has regulations that set out its procedures for implementing NEPA in 7 CFR part 372 (referred to below as the regulations). APHIS' regulations are designed to ensure early and appropriate consideration of potential environmental effects when APHIS programs formulate policy and make decisions. The regulations also promote effective and efficient compliance with NEPA requirements and integration of other environmental review requirements under NEPA (
The APHIS regulations were last amended in a final rule published in the
NEPA and the CEQ regulations require all agencies of the Federal Government to include a detailed statement by the responsible official with every recommendation or report on proposals for legislation and other major Federal actions significantly affecting
• The environmental impact of the proposed action,
• Any adverse environmental effects which cannot be avoided should the proposal be implemented,
• Reasonable alternatives to the proposed action,
• The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
• Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Such a detailed environmental statement is defined in the CEQ regulations as an environmental impact statement (EIS). The EIS is distinguished from the environmental assessment (EA), which is a concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact (FONSI). Actions taken by an agency that do not individually or cumulatively have a significant effect on the human environment, may be categorically excluded from the requirement to prepare either an EA or an EIS.
The CEQ regulations at 40 CFR 1507.3(b)(2) require agencies to develop specific criteria for and identification of those typical classes of action that normally require an EIS or an EA, as well as those that normally do not require further analysis in either an EIS or an EA and are thus categorically excludable actions. APHIS' regulations accomplishing this are currently found in § 372.5, “Classification of actions.”
Since the last time the regulations were updated in 1995, APHIS has determined that many additional categories of APHIS actions can and should be categorically excluded. In addition, we are proposing to provide examples for broad categories of actions that would be categorically excluded and to further explain the process for using those categorical exclusions. For ease of reading, therefore, we are proposing to differentiate the categorical exclusions currently found in § 372.5 into new sections. These new sections would be numbered §§ 372.8 through 372.10 with 372.5 addressing environmental impact statements, 372.6 addressing environmental assessments, 372.7 addressing categorical exclusions in general, and 372.8 through 372.10 describing categorical exclusions. Consequently, current sections §§ 372.6 through 372.10 would be redesignated. The proposed sections are listed in Table 1, along with the paragraph in current § 372.5 to which they correspond.
The introductory text of paragraph (a) of current § 372.5 sets out a description of actions APHIS takes that normally require environmental impact statements.
We are proposing to make several changes to the introductory text. First, we are proposing to refer to a category of actions rather than a class of actions. This change would be consistent with the CEQ regulations that use the phrase “category of actions.” We would make this change in the rest of our regulations as well.
Second, rather than referring to policymakings and rulemakings, we are proposing to simply refer to “actions.” APHIS takes actions that are not policymakings or rulemakings but which could nevertheless have a significant impact on the human environment and thus warrant an EIS. For example, APHIS' Wildlife Services (WS) program prepared an EIS for gull hazard management actions at John F. Kennedy International Airport. These actions were not part of a policymaking or a rulemaking.
We also are proposing to modify the regulations to add several types of EIS eligible actions. The current text indicates that risks to animal and plant health are the only reasons APHIS takes action. However, APHIS takes other types of actions, including those that protect or preserve property, natural resources, and human health and safety. For example, under the Plant Protection Act (7 U.S.C. 7701
The current text states that actions in this category are characterized by their broad scope and potential effect. We are proposing to qualify this statement by indicating that these characteristics typically characterize actions in this category. Sometimes, APHIS takes actions that have a broad scope, but whose impacts on the environment are not significant. The program to reduce the spread of rabies in wildlife is one example of such an action. The action may have a broad scope, but we can easily determine and characterize the likely potential effects as not significant.
We are proposing to provide more detail on what we mean by potential effects on the human environment. We would specify that, for the purposes of determining whether an action warrants an EIS, we are interested in the intensity of the potential effects, which refers to
We would remove the sentence that states that the use of new or untried methodologies, strategies, or techniques to deal with pervasive threats to animal and plant health would lead us to complete an EIS. The fact that a method is novel does not by itself mean its use will have significant environmental impacts warranting an EIS. For example, APHIS may develop a new method that involves noninvasive procedures or whose potential impacts, either positive or negative, are well understood. Neither of these actions would necessarily warrant an EIS.
We would also remove the sentence stating that, for actions that warrant an EIS, alternative means of dealing with a threat to animal and plant health usually have not been well developed. The presence or absence of alternatives by themselves does not determine the potential impacts an agency action would have on the human environment.
Paragraph (a)(1) of § 372.5 currently lists “formulation of contingent response strategies to combat future widespread outbreaks of animal and plant diseases” as an action that might normally requires an EIS. This category of actions is still appropriate, and we would retain it. Paragraph (a)(2) of § 372.5 would be slightly modified to read as follows: “Adoption of strategic or other long-range plans that prescribe a preferred course of action for future actions implementing the plan.” This modification more fully captures our intent that both the overarching strategic or long-range plan itself and actions taken to implement that plan should be considered in an EIS.
The current categories of action that normally require an EIS would be found in paragraphs (a) and (b) of proposed § 372.5.
The introductory text of paragraph (b) of current § 372.5 sets out a description of actions APHIS takes that normally require environmental assessments but not necessarily environmental impact statements. We are proposing to make this text the introductory text of a new § 372.6 and to make several changes to it.
The current text explains that “limited scope” means actions involving particular sites, species, or activities. We would expand this explanation to add State-wide or district-wide programs. We have found that agency actions of this scope can typically be adequately assessed in an EA. We would also indicate that activities may involve a specific species or similar species. We have found that impacts associated with actions involving multiple, similar species are not significantly different than actions involving a particular species.
We would expand the current discussion of potential effects. To contrast with our proposed text regarding actions that normally require an EIS, we would state that any effects of the action on environmental resources (such as air, water, soil, plant communities, animal populations, or others) or indicators (such as dissolved oxygen content of water) can be reasonably identified, and mitigation measures are generally available and have previously been successful. Again, the intensity and likelihood of the potential effects are our primary concern.
We would remove the sentences discussing the novelty of methodologies, strategies, and techniques used to deal with issues and the alternative means of dealing with those issues, for the same reasons we would remove them in our discussion of the actions that normally require an EIS.
Finally, the regulations currently list several categories of actions as actions that normally require an EA but not necessarily an EIS. However, within those general categories, there are several specific categories of action that we have determined should be subject to categorical exclusions.
In current § 372.5, paragraphs (b)(1) through (b)(5) list specific categories of actions that normally require an EA but not necessarily an EIS. Along with our proposed move of these categories to § 372.6, we are proposing to remove one category, amend two of the other current categories, and add two new categories.
Current paragraph (b)(1) lists policymakings and rulemakings that seek to remedy specific animal and plant health risks or that may affect opportunities on the part of the public to influence agency environmental planning and decisionmaking as actions that would normally require an EA. We would move this category to paragraph (a) in proposed § 372.6 and add the word “actions” to “policymakings and rulemakings.” This change would ensure that the regulations reflect the broad range of activities for which APHIS prepares environmental compliance documentation.
Paragraph (b)(2) of § 372.5 lists planning, design, construction, or acquisition of new facilities, or proposals for modifications to existing facilities as actions that would normally
Paragraph (b)(3) of § 372.5 lists the disposition of waste and other hazardous toxic materials at laboratories and other APHIS facilities, except when categorically excluded, as normally requiring an EA. We would move it to paragraph (c) of proposed § 372.6, but would otherwise leave it unchanged.
Paragraph (b)(4) of current § 372.5 lists approvals and issuance of permits for proposals involving genetically engineered or nonindigenous species, except for actions that are categorically excluded, as normally requiring an EA but not necessarily an EIS. We are proposing to amend this category of action to include issuance of licenses, as well as permits, to reflect the terminology used by APHIS animal health and biotechnology programs as well as to specify that we are referring only to regulated genetically engineered or nonindigenous species. We would also move this category of action to paragraph (d) of proposed § 372.6.
We are proposing to add a new category of actions as paragraph (e) of proposed § 372.6. This paragraph would indicate that programs to reduce damage or harm by a specific wildlife species or group of species (such as deer or birds), or to reduce a specific type of damage or harm, such as protection of agriculture from wildlife depredation and disease, management of rabies in wildlife, or protection of threatened or endangered species, normally require an EA but not necessarily an EIS. Such programs are managed by APHIS' WS program. Since 1994, WS has prepared and worked under hundreds of EAs for these types of program activities. WS' EAs for program activities include review of potential environmental impacts on target species, nontarget species including threatened and endangered species, aesthetic values, and any additional issues identified through the NEPA process. WS monitors impacts of actions taken under these EAs to ensure that the EAs' analyses continue to adequately evaluate program goals, actions, and impacts. In no instance have WS' monitoring evaluations indicated that WS' actions under these types of EAs had impacts warranting preparation of an EIS.
Paragraph (b)(5) of § 372.5 currently lists two examples of research and testing actions that normally require an EA: Research and testing that will be conducted outside of a laboratory or other containment area, and research and testing that reaches a stage of development (
We would add a new category of action as paragraph (g): Determination of nonregulated status for genetically engineered organisms. Under current paragraph (b)(4) of § 372.5, APHIS has been preparing EAs when it determines a genetically engineered organism is not a plant pest risk and does not present significant environmental impacts. However, determining that a genetically engineered organism should not be regulated is not an action that fits within the category of an approval or an issuance of a permit or license; such actions are addressed in the corresponding proposed paragraph (d) of § 372.6. Adding this example as a separate paragraph would provide transparency and clarification about how APHIS addresses potential environmental impacts associated with actions on petitions for nonregulated status of genetically engineered organisms as described in 7 CFR 340.6. The significance factors listed in 40 CFR 1508.27 are considered when determining the appropriate environmental documentation for these actions, and our NEPA analyses have repeatedly demonstrated that the level of potential environmental impact is usually not significant, making an EA appropriate for such actions unless the significance factors listed in 40 CFR 1508.27 apply.
The bulk of the changes we are proposing to the regulations relate to categorical exclusions. When experience and monitoring indicate that an action or a type of action does not have a significant or substantial impact on the human environment, establishing a categorical exclusion for that action benefits both APHIS and the public. Most actions APHIS takes are designed to prevent damage or harm to animals, plants, and human enterprises related to those animals and plants. Making these actions subject to a categorical exclusion, when appropriate, in accordance with criteria in §§ 372.7 through 372.10, benefits the human environment by allowing APHIS to take action to prevent or reduce the damage or harm more quickly than would be possible if the agency had to complete an EA or EIS for the action.
Paragraph (a) of proposed § 372.7 would set out general provisions for APHIS' use of categorical exclusions. Currently, these provisions are found in the introductory text of paragraph (c) of § 372.5. We would make two changes to the current provisions. First, the introductory text of this paragraph currently states that categorically excluded actions are similar to actions that normally require an EA but not necessarily an EIS in terms of their extent of program involvement and the scope and effect of and availability of alternatives to proposed actions. Because we are proposing to remove the text dealing with alternatives from the EIS and EA sections, we are proposing to remove it here as well.
In addition, paragraph (c) of § 372.5 currently states that the major difference between categorically excluded actions and actions that require an EA, but not necessarily an EIS, is that for categorically excluded actions, the means through which adverse environmental impacts may be avoided or minimized have actually been built into the actions themselves. The paragraph goes on to state that the efficacy of this approach generally has been established through testing and/or monitoring.
We are proposing to indicate that mitigation measures alone are not the sole key factor. Rather, there are several key factors that we should consider when determining whether a category of actions is categorically excluded, which are (1) the extent to which mitigation measures to avoid or minimize adverse environmental impacts have been built into the actions themselves and, in some cases, standard operating procedures; (2) Agency expertise and experience implementing the actions; and (3) whether testing or monitoring have demonstrated there normally is no potential for significant environmental impacts.
We would also add evaluation criteria which must be met prior to any determination of categorical exclusion. These would be found in new paragraphs 372.7(a)(1)(i) through (a)(1)(iii). The first evaluation criterion
These changes would emphasize that actions we take do not individually or cumulatively have a significant effect on the environment, as demonstrated through long-term application or testing and monitoring, without the need to build in means to avoid or minimize environmental impacts. Many examples of such actions will be discussed later in this document.
Paragraph (d) of current § 372.5 discusses exceptions for categorically excluded actions and lists examples of such exceptions. As part of our reorganization of the list of actions subject to categorical exclusions, we are proposing to list common exceptions to categorical exclusions next to the categorical exclusions themselves in the regulatory text. We hope that this change would highlight the potential exceptions for users of the regulations. We are proposing to refer to such exceptions as “extraordinary circumstances,” consistent with CEQ's instructions in the definition of “categorical exclusion” in 40 CFR 1508.4 to provide for “extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” (In § 372.4, which contains definitions of various terms used in the APHIS NEPA implementing regulations, we would add a definition of
We would retain the introductory text of paragraph (d) of current § 372.5 as paragraph (b) of proposed § 372.7. It would continue to indicate that, whenever the Agency official responsible for environmental review determines that a categorically excluded action may have the potential to significantly affect the quality of the human environment, an EA or an EIS will be prepared. (In § 372.4, which contains definitions of various terms used in the APHIS NEPA implementing regulations, we would add a definition of
We are also proposing to add a new paragraph § 372.7(c), which would describe the extraordinary circumstances for individual categorically excluded actions that would preclude the use of a categorical exclusion. A list of specific extraordinary circumstances for these actions would be provided in paragraphs (c)(1) through (c)(17).
Please note that the following sections include examples of activities that we expect would result in categorical exclusions. These lists are not intended to be comprehensive accounts of all possible categorical exclusions. Any activity not listed would still have to meet the requirements for a categorical exclusion.
Paragraph (c)(1) of § 372.5 currently lists various categorically excluded actions under the heading of “routine measures.” We are proposing to list such measures, and explanations and examples of such measures, in a new § 372.8.
As described in current paragraph (c)(1), routine measures include identifications, inspections, surveys, sampling that does not cause physical alteration of the environment, testing, seizures, quarantines, removals, sanitizing, inoculations, control, and monitoring employed by agency programs to pursue their missions and functions. The designation of these measures as “routine” has caused some uncertainty among agency personnel and the public. Certain actions that APHIS performs on a regular basis may nonetheless require us to prepare an EA or EIS each time we perform them, depending on the potential for the actions to significantly affect the human environment. What the current regulations describe is an action that occurs in a limited area, does not permanently adversely affect the area, and is performed in accordance with well-established procedures. We believe that a better description for such measures is “conventional.” Therefore, we are proposing to refer to such measures as conventional measures both in our proposed description of general extraordinary circumstances for conventional measures in proposed § 372.7(c) and in proposed § 372.8.
We are proposing to change the current list of conventional measures slightly. The current list includes sampling that does not cause physical alteration of the environment. We are proposing to instead refer to monitoring, including surveys and surveillance, that does not cause physical alteration of the environment. This terminology is more commonly used within and outside APHIS to describe these activities, which will be discussed in more detail later in this document.
Paragraph (c)(1) of current § 372.5 goes on to describe the appropriate use of chemicals and other products as part of routine measures. Specifically, it states that such measures may include the use—according to any label instructions or other lawful requirements and consistent with standard, published program practices and precautions—of chemicals, pesticides, or other potentially hazardous or harmful substances, materials, and target-specific devices or remedies, provided that such use meets certain criteria.
In paragraph (a) of proposed § 372.8, we are proposing to expand the list of substances that may be used as part of a conventional measure, subject to certain conditions, to include the use of pesticides, chemicals, drugs, pheromones, contraceptives, or other potentially harmful substances, materials, and target-specific devices or remedies.
APHIS uses contraceptives, such as GonaCon, to manage populations of animals and mitigate their impacts on the environment and natural resources. APHIS uses drugs, such as the nonlethal sedative alpha chloralose, to temporarily immobilize animals for relocation or other management. Previous APHIS NEPA evaluations concluded that normal use patterns of both contraceptives and drugs do not individually or cumulatively have a significant effect on the human environment based on the limited duration and scope of their use and the design of the contraceptives and drugs, which limit effects on nontarget species.
APHIS uses pheromones to control plant pests; the pheromones mask the chemical scent of the target organism, making it difficult for the organism to find mates and reproduce. As long as pheromones are used in accordance with Environmental Protection Agency (EPA) labeling requirements, we have found that they do not individually or cumulatively have a significant effect on the human environment. In practice, we expect pheromones to have
The introductory text of current § 372.5(c)(1) indicates that potentially harmful substances must be used according to any label instructions or other lawful requirements and consistent with standard, published program practices and precautions. We would retain this language in proposed § 372.8(a).
Paragraphs (c)(1)(ii)(A) through (c)(1)(ii)(C) of current § 372.5 contain three examples of routine measures. To assure clarity, we are proposing to explain in proposed § 372.8 every conventional measure listed in the introductory text and to provide examples of each conventional measure. These explanations and examples can be found in paragraphs (b) through (l) of proposed § 372.8. The proposed lists of examples are intended to illustrate each of the conventional measures, not to be exhaustive. The proposed conventional measures and their explanations and examples are discussed below.
Inspection methods typically rely on visual observation or destruction of a small number of subsamples (for example, cutting of fruit to detect larvae) and do not individually or cumulatively have a significant effect on the human environment. Inspection of animals usually involves restraint, which is performed following established animal care and animal welfare guidelines. Inspection may also involve visual inspection of facilities, such as inspection of facilities holding animals covered under the Animal Welfare Act to verify that the animals are being held in compliance with the regulations promulgated under that act, inspection of packinghouses to verify compliance with plant health regulations, or inspections of facilities performing animal health work. These activities are not expected to have any impact on the human environment, and years of data have indicated that they do not.
Surveillance would include activities to collect test samples from part or all of the target population using routine collection techniques. Monitoring and surveillance generally involves limited numbers of animals (relative to State and regional populations) and a limited area. If warranted, inspection may involve the collection of a biological sample for submission to a laboratory for diagnostic testing. The quantity of any biologic samples collected is negligible (for example, 2 to 5 milliliters of blood, a punch biopsy, or a swab). Monitoring chemical residue involves the collection of small samples of environmental components (for example, water, leaves, or soil) to test for the presence of a chemical. Sample collection occurs at limited locations and times. These are standard practices used by scientists daily with no impact to the environment being sampled or to people.
Trapping would be described as the use of capture devices that are designed to efficiently capture, restrain, or kill targeted individual animals or a group of animals (
Examples of these activities would include, but would not be limited to:
• Collection of biological or environmental samples such as tissue, soil, or water samples and samples of fecal matter.
• Continual checking, by testing, trapping, or observing for the presence, absence, or prevalence of animals, pests, or disease. This information may be used to support a pest or disease status (such as pest-free or disease-free status).
• Surveying and monitoring for disease may or may not require the lethal removal of the animal and can often be conducted using nonlethal methods, such as collection of samples from animals killed or removed for reason related to disease monitoring (
• Randomly selecting animals and obtaining blood samples to survey for disease, or collection of test samples.
• Confiscation of a commodity that could be a vector for a plant or animal disease or pest, or an animal or plant determined to be infested, infected, exposed, or not in compliance with APHIS regulations (such as one moved illegally or without proper paperwork).
• Seizure of a nonregulated commodity, seed, or propagative material containing regulated genetically engineered material.
The proposed regulations would state that the establishment of a quarantine can include mitigations to allow for movement of animals or commodities while preventing the spread of the animal or plant pest or disease; for example, we may require chemical treatment of regulated articles that are moved from the quarantined area to ensure that the articles do not spread a pest. Such mitigations would be evaluated separately from the establishment of the quarantine itself, which would be covered by this categorical exclusion.
Examples of quarantines are:
• Quarantine of an area in which a pest or disease is known to occur to prevent movement of animals, plants, or other articles whose movement could spread the pest or disease.
• Changes in pest or disease status for an area or country, such as expansion or rescission of existing quarantines.
• Removal of quarantine restrictions when APHIS determines that it is appropriate to do so.
Some of the examples for removals would indicate the specific circumstances in which a removal would qualify for a categorical exclusion. In addition, a few of the proposed examples of removals have extraordinary circumstances in which they would not be eligible for a categorical exclusion.
Examples of removals that qualify for a categorical exclusion would include, but would not be limited to:
• Removal of animals in accordance with permits and agreements from the appropriate management agencies, or otherwise in accordance with regulations governing management of a species, for the purpose of approved research studies, surveillance and monitoring, or disease or damage management, or due to pest concerns. Such movement is typically for quarantine or testing purposes. Most confirmed cases of disease involve a very limited number of animals; therefore, the impact to the total population is negligible, especially in comparison to the potential number of animals that could be affected if the diseased animals are not removed.
• Removal of animals or material from premeses.
• Removal of trees or shrubs and plants.
• Disposal or destruction of materials for which the Agency has regulatory authority due to, for example, completion of acknowledged or permitted activities, completion of regulated activities, or noncompliance and disposal of animals. This could include disposal of regulated articles (fruit, meat, regulated genetically engineered organisms, etc.) at ports of entry designated by U.S. Customs and Border Protection. Approved methods of disposal would range from burial, feeding to animals, composting, to co-burning for power generation. These removals would be considered on a case-by-case basis and only when they are standalone actions, not tied to additional control activities on a larger scale.
• Routine disposal of carcasses using other approved methods, such as donation for human consumption, composting, chemical digestion, burial, and incineration. Carcass and waste material disposal is conducted in appropriately licensed and approved facilities, or in accordance with appropriate Federal, State and local restrictions and regulations, so any impact to human health, animal health, or the environment has been mitigated.
• Depopulation of domestic livestock and captive wildlife due to the presence of an animal disease or the reasonable suspicion of the presence of an animal disease. An extraordinary circumstance would apply, and we would prepare an EIS, if an outbreak of an animal disease would require the depopulation of a large number of animals potentially resulting in substantial or significant adverse impacts on the human environment.
• Treatment of regulated articles at existing facilities, such as irradiation treatment and methyl bromide special use treatment. For example, irradiation treatment is conducted in approved facilities that must be approved by other Federal and State agencies as sufficiently isolated from the
• Treatment of a facility, container, or cargo hold at the port of entry to mitigate pest threats.
• Cleaning and disinfection of equipment, cages, facilities, or premises.
• Treatment of animal carcasses, using methods such as incineration, alkaline digestion, or rendering as a method to devitalize infectious material.
• Inoculation or treatment of discrete herds of livestock or wildlife undertaken in contained areas (such as a barn or corral, a zoo, an exhibition, or an aviary).
• Use of vaccinations or inoculations, including new vaccines (including genetically engineered vaccines) and applications of existing vaccines to new species provided that the project is conducted in a controlled and limited manner, and the impacts of the vaccine can be predicted. An extraordinary circumstance would apply if a previously licensed or approved biologic has been subsequently shown to be unsafe, or will be used at substantially higher dosage levels or for substantially different applications or circumstances than in the use for which the product was previously approved. (This extraordinary circumstance comes from current paragraph (d)(2) of § 372.5.)
• Restraining or handling livestock, poultry, or wildlife to facilitate examination or other activities.
• Cultural methods and basic habitat management such as nonlethal management activities such as removal of food sources, modification of planting systems, modification of animal husbandry practices, water control devices for beaver dams, limited beaver dam removal, and pruning trees.
• Site-specific applications of nonlethal wildlife damage management practices such as frightening devices, exclusion, capture and release, and capture and relocation.
• Maintain records documenting the results of trapping for insects.
• Maintain records of the application of treatments.
• Prepare labels indicating that the movement of a regulated article to certain areas within the United States is illegal.
• Retain records at approved livestock facilities and listed slaughtering or rendering establishments under 9 CFR part 71.
Paragraph (c)(3) of § 372.5 currently lists various categorically excluded actions under the heading of “licensing and permitting.” We are proposing to list such actions, expanded to include authorizations and approvals as well as licensing and permitting, in a new § 372.9.
The introductory text of proposed § 372.9 would indicate that licensing and permitting refers to the issuance of a license, permit, or authorization to entities, including individuals, manufacturers, distributors, agencies, organizations, or universities for field testing, environmental release, or importation or movement of animals; plants; animal, plant, or veterinary biological products; or any other regulated article. Authorization and approval would be for an entity to participate in a program or perform an action.
Generally, APHIS has put in place restrictions on the importation and interstate movement of many articles to prevent the introduction or dissemination within the United States of animal and plant pests and diseases. Decisions to allow the importation or interstate movement of such articles are made only after determining that any risk presented by the movement of the article has been adequately mitigated. Such actions therefore would not be expected to have a significant impact on the human environment.
APHIS also licenses, authorizes, or approves entities to carry out activities to further their purposes or goals. Such licensing, authorization, or approval is done only when APHIS has determined that the entity will effectively fulfill its designated responsibilities. These actions are administrative for the agency, and generally occur in support of actions that undergo programmatic analysis in an EIS or EA. To require a separate NEPA analysis for each license, authorization, or approval would not allow expedient action to serve the public, and would promote piece-meal analyses. Even collectively, these licenses, authorizations, and approvals are not expected to individually or cumulatively have significant effect on the human environment because they are part of programs where mitigations reduce potential effects.
We are proposing to list specific examples of these actions, organized by APHIS program area, in paragraphs (a) through (c) of proposed § 372.9. Paragraph (a) would set out examples of animal health-related actions. These are:
• Approval of interstate movement or importation of animals via regulations or permits. APHIS' VS program approves such movement based on the requirements set forth in the Federal disease program regulations as reflected in the 9 CFR. Risk assessments provide the basis for determining the
○ Use of permits to control the interstate movement of restricted animals, such as issuance of an official document or a State form allowing the movement of restricted animals to a particular destination.
○ Use of permits for entry, such as pre-movement authorization for entry of animals into a State from the State animal health official of the State of destination.
○ Approval of international movements through the use of import and export health certificates and import or export movement permits.
○ Authorization to move animals out of the quarantine or buffer zone for cattle fever ticks by documentation (a State form) that confirms the animals have been inspected and found to be tick-free.
• Licensing of swine garbage feeding operations. This licensing occurs after a site visit finds and documents that all applicable requirements (9 CFR part 166—Swine Health Protection) have been met, ensuring that the operations will conduct this activity properly and thus will have no impact on the human environment.
• Accreditation of private veterinarians. VS accredits veterinarians only if they are licensed and only after they complete an orientation, certify that they can complete certain tasks, and meet other requirements.
• Approval and permitting of laboratories to conduct official tests. VS approves laboratories to conduct official tests only after a site visit verifies that the tests are being conducted, recorded, and reported properly. Proper testing procedures reduce the overall likelihood that an animal disease could have an impact on the human environment by ensuring correct and timely identification of disease threats.
• Approval of identification manufacturers to produce identification, tests, and identification devices.
• Listing of slaughter and rendering establishments for surveillance under 9 CFR 71.21. The regulations in 9 CFR 71.21 require listed establishments to allow personnel from APHIS and the USDA's Food Safety and Inspection Service to conduct surveillance at the establishments.
• Approval of herd and premises plans that have environmental or waste management components. VS develops herd and premises plans in response to findings of disease in a herd or on a premises. The plans are designed to ensure that the herds remain disease-free and that animals can be safely introduced or reintroduced to the premises. Herd and premises plans may include cleaning and disinfection requirements. All cleaning and disinfection performed with cleaners and chemical disinfectants would need to be in compliance with our proposed requirements for the use of such substances as part of conventional measures, discussed earlier in this document. Herd and premises plans may also include environmental and waste management requirements to address the presence of disease, such as the removal of all manure, some removal of a certain depth of topsoil in a feedyard, spreading of lime on the soil to make the soil too basic for the organism to survive, or, as is often recommended, simply letting the pastures lay dormant (without livestock) and exposed to natural sunlight to assure elimination of the disease organism over time. For the reasons mentioned above, these practices are not expected individually or cumulatively to have a significant impact on the human environment.
• Approval of herd accreditation for tuberculosis or certification for brucellosis to document the herd's freedom from disease. This is an administrative action that poses no adverse impacts to the environment.
• Funding the depopulation of diseased herds, including indemnity and carcass disposal; authorization and funding of the collection and submission of tissue samples for testing. These are decisions that allow VS to undertake certain conventional measures described in proposed § 372.8, such as removals and implementation of biosecurity methods.
• Approval of participation in the National Poultry Improvement Plan (the Plan) by issuance of a permanent approval number in accordance with 9 CFR 145.4. This is an administrative action taken after VS has determined that a flock owner is qualified to participate in the Plan.
• Currently, paragraph (c)(3)(i) of § 372.5 sets out a categorical exclusion for the issuance of a license, permit, or authorization to ship for field testing previously unlicensed veterinary biological products. We are proposing to amend this categorical exclusion in several ways. First, we are proposing to separate authorization to ship for field testing from issuance of a license or permit. Typically, field testing must occur before a license or permit can be issued, assuming the veterinary biological product meets the requirements of the regulations. We would list these actions in two separate categorical exclusions. Second, we would expand these categorical exclusions to explicitly include previously unlicensed veterinary biological products containing genetically engineered organisms, such as vector-based vaccines and nucleic acid-based vaccines. Although such field testing could be considered to be included in the current categorical exclusion, VS' Center for Veterinary Biologics (CVB) has been completing EAs for such activities as a matter of policy, due to uncertainty about the environmental effects associated with the use of genetically engineered organisms. Accordingly, CVB has completed risk assessments and EAs for numerous vaccines containing genetically engineered organisms. The routine licensing requirements of CVB, which apply to these vaccines as well, ensure the vaccines' purity, identity, safety, potency, and efficacy. All of the EAs prepared for vaccines containing genetically engineered organisms have resulted in findings of no significant impact, and subsequent monitoring has not identified any impact these vaccines have had on the human environment. Accordingly, we believe it is appropriate to include these types of vaccines in the proposed categorical exclusions. The new categorical exclusions would read: “Authorization to ship and field test previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines)” and “Issuance of a license or permit for previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines).” Such categorical exclusions are based on field safety data and laboratory testing conducted since CVB's inception in 1976. In addition, just because an action qualifies for a categorical exclusion, it will be examined. In the unlikely event that there were a vaccine with GE organisms that were deemed likely to signifantly impact the human environment, the EA process would be initiated.
• Current paragraph (d)(3) of § 372.5 provides an extraordinary circumstance for the issuance of licenses, permits, or authorizations for shipping and field testing previously unlicensed veterinary biologics. The extraordinary circumstance applies when a previously unlicensed veterinary biological product to be shipped for field testing contains live micro-organisms or will not be used exclusively for in vitro diagnostic testing. However, as described above,
• Currently, paragraph (c)(3)(iii)(C) of § 372.5 sets out a categorical exclusion for permitting of releases into a State's environment of pure cultures of organisms that are either native or are established introductions. With respect to VS activities, the term “pure cultures” refers to seeds that are used to manufacture veterinary biologics. In accordance with the definition of “pure” found in 9 CFR 101.5(c), they must be tested as determined by test methods or procedures established by APHIS and found relatively free of extraneous micro-organisms and extraneous material (organic or inorganic).
We are proposing to make minor changes to this categorical exclusion. First, we would indicate that the issuance of any license, permit, authorization, or approval for the use of a pure culture would be subject to a categorical exclusion, to cover all possible uses. Second, we would add a parenthetical explaining that pure cultures are relatively free of extraneous micro-organisms and extraneous material. Third, rather than refer to cultures that are “native or established introductions,” we would instead refer to cultures that occur or are likely to occur in a State's environment. It is not necessary for the purposes of assessing environmental impact to distinguish between native organisms and established introductions of organisms, since both occur in the environment, making it unlikely for the release of a pure culture to have environmental impacts. We would determine whether an organism is likely to occur in a State based on the known distribution of the organism, environmental factors, and any other available evidence. For example, if an organism is present in all the surrounding States, it is likely to occur in the surrounded State even if the organism has not been reported there. The use of a pure culture of an organism in a State where the organism is likely to occur is not expected to have significant environmental effects due to the presumed previous presence of the organism. Finally, we would add a qualifier to the existing categorical exclusion indicating that the release of a pure culture of an organism would not qualify for a categorical exclusion if the organism is of quarantine concern. Organisms of quarantine concern are typically subject to control or eradication efforts to prevent impacts on the environment, and releases of pure cultures of such organisms could hinder such efforts.
The revised categorical exclusion would read: “Issuance of a license, permit, authorization, or approval for uses of pure cultures of organisms (relatively free of extraneous micro-organisms and extraneous material) that are not strains of quarantine concern and occur or are likely to occur in a State's environment.”
• Issuance of permits and approval of facilities to import, transport, introduce, or release live animals and products or byproducts thereof, or other organisms for which proven risk mitigation measures are applied and will require no substantial modification for the specific articles under consideration. This would include importation or interstate movement of meat, milk/milk products, eggs, hides, bones, animal tissue extracts, etc., which present no disease risk or for which there are proven animal disease risk mitigation measures, such as heating, acidification, or standard chemical treatment. VS has developed common mitigations for many diseases, including sourcing only from healthy animals and from regions free of diseases of concern, quarantine and testing samples for evidence of disease, laboratory containment, and product processing procedures such as heating (including cooking or pasteurization), acidification, curing, storage, standard chemical treatment, and purification. VS conducts extensive monitoring of animal diseases to verify the efficacy of its disease mitigation approaches.
Paragraph (b) of proposed § 372.9 would set out examples of plant health-related actions that would be categorically excluded. These would include, but would not be limited to:
• Issuance of permits under 7 CFR part 330 for the importation or interstate movement of organisms into containment facilities, for the interstate movement of organisms between containment facilities, and continued maintenance and use of these organisms. The regulations in 7 CFR part 330 govern the importation and interstate movement of plant pests. Such pests, when imported or moved interstate, must be moved into containment facilities designed to prevent the escape of the pests into the surrounding environment. APHIS' Plant Protection and Quarantine (PPQ) program also amends permits to allow permit holders to continue to keep pests at the facility to which they have been transported. PPQ operates a compliance and enforcement program that involves reporting, periodic inspections, and consequences for variance from required features and procedures, up to and including destruction of organisms. In the last decade, there has been no evidence indicating that the issuance of such permits has any adverse environmental impacts. Therefore, the continued permitting for the importation and interstate movement of organisms in accordance with 7 CFR part 330 is not expected to have significant environmental effects.
• Issuance of permits for the use of organisms biologically incapable of persisting in the permitted environment. PPQ may permit the use of organisms under 7 CFR part 330 based on the environment surrounding the facility and using information about distribution, biology, and climate tolerances of organisms to ensure mismatch to the climate and season of release. For example, tropical organisms might be subject to a winter study in a greenhouse, or field study only in northern, temperate areas. Because the organisms are unable to persist in the permitted environment and are maintained in compliance with permit conditions, issuance of the permits is not expected individually or cumulatively to have a significant effect on the human environment.
• As noted earlier, paragraph (c)(3)(iii)(C) of § 372.5 currently provides a categorical exclusion for permitting of releases into a State's environment of pure cultures of organisms that are either native or are established introductions. Besides veterinary biologics, this categorical exclusion also applies to release of pure cultures of organisms to be released as biological control agents. However, the activities have some major differences, and we are therefore proposing to separate the current categorical exclusion into two separate exclusions.
In the area of biological control, a “pure culture” is loosely defined to include field collections of predators and parasites that are identified on sight as the desired organism. There is no reason or need to “sterilize” or remove contaminants prior to re-release.
Rather than refer to cultures that are “native or established introductions,” we would instead refer to organisms that occur, or are likely to occur, in a State's environment. For the purposes of assessing environmental impact, distinguishing between native organisms and established introductions of organisms would require identification of distinguishing traits. These types of traits may not exist, and even if they do exist, would require specific testing to confirm. Additionally,
We would not categorically exclude the release of an organism of quarantine concern. Organisms of quarantine concern typically are subject to control or eradication efforts to prevent impacts on the environment, and releases of these organisms could hinder such efforts. We would restrict the permitted use of organisms of quarantine concern to containment facilities for research purposes.
Finally, besides the movement of pure cultures, other organisms may also be moved interstate for field release, for purposes such as field research outside containment facilities. PPQ only permits such movement when the organism occurs or is likely to occur in a State's environment; as described above, the movement of an organism to a State where PPQ has determined it is likely to occur is not expected to have a significant impact on the human environment, and has not over the past decade. As these two processes are similar, we would address them in the same categorical exclusion.
Therefore, the new plant health-specific categorical exclusion would read: “Issuance of permits for uses outside of containment that are pure cultures of organisms and that are not strains of quarantine concern and occur or are likely to occur in a State's environment, and issuance of permits for the interstate movement of organisms that occur or are likely to occur in a State's environment.”
• Issuance of permits or approvals for the importation of articles that are regulated due to plant health concerns, when the permit contains conditions that will mitigate any plant pest risk associated with the articles. PPQ issues permits and approvals for the importation of plants, plant products, and other articles that could introduce quarantine pests into the United States. PPQ does so only after determining that any risk associated with the importation of the articles has been mitigated, thus ensuring that the importation would not have a significant impact on the human environment. Mitigations are typically conventional measures, as described in proposed § 372.8; if mitigations have impacts on the human environment, their use would be evaluated separately from the decision to issue a permit to ensure that appropriate NEPA documentation is completed.
• Issuance of certificates or limited permits for the movement of regulated articles from areas quarantined due to plant pests. PPQ establishes domestic quarantines for quarantine pests and conditions for the movement of articles that could spread those pests under its regulations in 7 CFR parts 301, 302, and 318. Similar to importation of articles, PPQ issues certificates or limited permits for the interstate movement of such articles only after determining that any risk associated with the importation of the articles has been mitigated, thus ensuring that the movement would not have a significant impact on the human environment.
• Issuance of permits for the importation or interstate movement of noxious weeds and other regulated seeds. PPQ designates certain plants as noxious weeds in accordance with the Plant Protection Act (7 U.S.C. 7701
• Issuance of permits for prohibited or restricted articles unloaded and landed for immediate transshipment or transportation and exportation. Transshipment or transportation and exportation of restricted articles is regulated under 7 CFR part 352. Permits for such movement are granted only when sufficient safeguards are in place to prevent any plant pests that may have infested the shipment from being introduced into the United States. This ensures that such activities do not have any effect on the human environment.
Paragraph (c) of proposed § 372.9 would set out examples of biotechnology-related actions that would be categorically excluded. These would include, but would not be limited to:
• Issuance of permits for the importation, interstate movement, or environmental release of regulated genetically engineered organisms, provided that confinement measures (the permit conditions or performance measures), such as isolation distances from compatible relatives, control of flowering, or physical barriers, minimize the interaction of the regulated article with the environment. APHIS' Biotechnology Regulatory Services (BRS) program issues permits for importation or interstate movement of such articles only after determining that any risk associated with the importation or interstate movement of the articles has been sufficiently mitigated, thus ensuring that the importation or movement would not have a significant impact on the human environment. The regulations in 7 CFR part 340 govern the issuance of permits for the importation and interstate movement of certain genetically engineered organisms and products. Confinement measures are included in the permits; the confinement process is designed to ensure that the environmental release will not have a significant impact on the human environment.
Current paragraph (d)(4) of § 372.5 indicates that an extraordinary circumstance will apply when a confined field release of genetically engineered organisms or products involves new species or organisms or novel modifications that raise new issues. We are proposing that an extraordinary circumstance would apply when new permit conditions are included to address uncertainty about whether existing confinement measures will be sufficient to prevent the interaction of the genetically engineered organism with the environment. We believe the added specificity of our proposed extraordinary circumstance will better communicate the types of concerns that might lead us to prepare an EA for a confined field release.
• Extension of nonregulated status under 7 CFR part 340 to organisms similar to those already deregulated. The regulations in that part allow for an applicant to request an extension or for BRS to initiate an extension based on the similarity of a regulated organism to an antecedent organism that has been deregulated. BRS then examines information and assesses whether the regulated article in question raises no serious new issues meriting a separate review under the petition process. Because requests for extensions of nonregulated status assess regulated articles that are similar to the deregulated antecedent organism, the
• Notifications for environmental release, importation, or interstate movement of articles regulated under 7 CFR part 340. The notification process is described in 7 CFR 340.3. It is an administratively streamlined alternative to a permit for the introduction of an article regulated under that part. The article must meet certain eligibility criteria designed to reduce risk, and the introduction must meet six performance standards. These include confinement and devitalization methods that are designed to further mitigate potential environmental impacts, if any.
Paragraph (c)(2) of § 372.5 currently lists various categorically excluded actions under the heading of “research and development.” In addition, paragraph (c)(4) provides a categorical exclusion for the rehabilitation of APHIS facilities. As the descriptions of these categorical exclusions are not as extensive as the descriptions of conventional measures and of licensing, permitting, and authorization or approval, we are proposing to combine these categories of actions and list them in a new § 372.10.
Paragraph (c)(2)(i) of § 372.5 currently provides a description of research and development activities; we are proposing to provide this description in the introductory text of paragraph (a) of proposed § 372.10. Such activities are currently described as activities that are carried out in laboratories, facilities, or other areas designed to eliminate the potential for harmful environmental effects—internal or external—and to provide for lawful waste disposal.
We are proposing to make a few changes to this text. We would indicate at the beginning of this description that research and development activities that would be eligible for a categorical exclusion under proposed § 372.10 are those limited in magnitude, frequency, and scope. This would clarify why research and development activities usually have minimal effects on the environment.
Paragraph (c)(2)(ii) of current § 372.5 lists three examples of research and development activities that are categorically excluded:
• The development and/or production (including formulation, repackaging, movement, and distribution) of previously approved and/or licensed program materials, devices, reagents, and biologics;
• Research, testing, and development of animal repellents; and
• Development and production of sterile insects.
Paragraph (a)(1) would provide a new categorical exclusion for vaccination trials that occur on groups of animals in areas designed to limit interaction with similar animals, or that include other controls needed to mitigate potential risk. The study design in these cases eliminates the potential for impacts on organisms other than the test subjects.
Paragraph (a)(2) would provide a new categorical exclusion for the evaluation of uses for chemicals not specifically listed on the product label, as long as they are used in a manner designed to limit potential effects to nontarget species such that there are no individual or cumulative impacts on the human environment. Such evaluation is necessary to determine whether chemicals may be effective against organisms not listed on the label as targets, or whether means of applying the chemical other than those listed on the label may be effective and safe. Many of these evaluations will be subject to experimental use permits issued by EPA with associated conditions to limit potential effects such that there are no individual or cumulatively significant impacts on the human environment. Other evaluations may have products that have been identified by EPA as mimimum risk and therefore do not require a full Federal Insecticide, Fungicide, and Rodenticide Act registration. However, APHIS still does an environmental review to ensure safe use and no extraordinary circumstances.
Paragraph (a)(3) would expand on the current categorical exclusion that applies to the development and/or production of certain articles. We would amend this exclusion to include the development and/or production of program materials, devices, reagents, and biologics that are for evaluation in confined animal, plant, or insect populations under conditions that prevent exposure to the general population (
Paragraph (a)(4) would provide a new categorical exclusion for research using chemicals, management tools, or devices to test the efficacy of methods; new vaccinations not currently approved to test in the natural environment; the use of mechanical devices (such as noise and light deterrence); and existing vaccinations, chemicals, or devices used in a new way on an animal, pest, or disease similar to those on which they have previously been used.
Paragraph (a)(5) would expand on the current categorical exclusion for the research, testing, and development of animal repellents. As amended, the categorical exclusion would include all research related to the development and evaluation of wildlife management tools, such as animal repellents, scare devices, fencing, and pesticides. As indicated in the introductory text of proposed paragraph (a), APHIS research using the methods described in proposed paragraphs (a)(4) and (a)(5) is limited in magnitude, frequency, and duration, meaning it is not likely to have a significant impact on the human environment. APHIS has conducted many EAs on the operational use of functionally similar methods, and those methods have had no significant impact. APHIS research involving modifications of commonly used techniques is generally intended to improve the efficacy and selectivity of these methods and would be expected to have similar or less risk of adverse impact than the methods operationally in use.
Paragraph (a)(6) would contain the current categorical exclusion for the development and production of sterile insects. We would amend this categorical exclusion to include the release of sterile insects as well. Sterile insects are bred in captivity, sterilized, and released into the environment, where they reduce the fecundity of pest populations. Environmental effects are limited due to the lack of offspring resulting from mating with the wild population. Research activities included
Paragraph (b) of proposed § 372.10 would expand on the categorical exclusion for the rehabilitation of APHIS facilities currently found in paragraph (c)(4) of § 372.5. Paragraph (c)(4) currently indicates that rehabilitation of existing laboratories and other APHIS facilities, functional replacement of parts and equipment, and minor additions to existing APHIS facilities are subject to categorical exclusion. We would retain this list, replacing the word “rehabilitation” with “renovation,” as the term better captures the nature of the work. We would also add categorical exclusions for the improvement, maintenance, and construction of APHIS facilities.
APHIS frequently needs to improve and maintain its facilities. Such improvement and maintenance often involves minor excavations and repairs to sidewalks and grounds. We would add these as actions that are categorically excluded, provided that they involve disturbances with negligible adverse impacts on the environment.
More extensive improvements may involve construction, expansion, or improvement of a facility when the permitting and approval process requires measures that address potential environmental effects. (For example, local or State regulations may require that certain construction techniques be used to reduce the effect of the construction on the human environment.) We are proposing to add a categorical exclusion for these more extensive improvements, if they meet the following requirements:
• The structure and proposed use are in compliance with all Federal, State, Tribal and local requirements (including Executive Order 13423, “Strengthening Federal Environmental, Energy, and Transportation Management,” and other Federal Executive orders);
• The site and the scale of construction are consistent with those of existing adjacent or nearby buildings; and
• The size, purpose and location of the structure is unlikely to have significant environmental consequences or create public controversy.
A facility construction, expansion, or improvement that met these criteria would not be expected to have a significant effect on the human environment because the scope and impacts of the action would remain relatively small.
We are proposing to add a new section describing the process APHIS follows to develop environmental documentation when conducting a rapid response to an emergency. The new section reflects the CEQ guidance discussed previously. Adding new §§ 372.6 through 372.10 would require us to move the other sections in part 372. We are proposing to combine current §§ 372.6 and 372.7, which deal with early planning and consultation on NEPA matters, because they are quite short and discuss related subjects. For this reason, the last section of the current NEPA regulations would be § 372.14 under this proposal, and we are therefore proposing to add this section as § 372.15.
APHIS frequently takes important emergency actions to prevent the spread of animal and plant pests and diseases. Without emergency action to control the spread of these pests and diseases there is a potential for significant impacts on the human environment. Many actions APHIS takes in emergencies would be categorically excluded from the need to prepare further NEPA documentation under this proposal, as these actions often fall into the categories described in proposed §§ 372.8 through 372.10. Primary examples of such actions can include quarantine, surveillance, decontamination and/or cleaning, and depopulation and disposal. However, particularly when emergency actions are not categorically excluded, it is important to minimize the potential environmental effects of those actions.
The proposed introductory section of § 372.15 would first state that, an emergency exists when immediate threats to human health and safety or immediate threats to sensitive or protected resources require that action be taken in a timeframe that does not allow sufficient time to follow the procedures for environmental review established in the CEQ regulations and these regulations.
Proposed paragraph (a) of § 372.15 would then stipulate that when the Administrator of APHIS or the Administrator's delegated Agency official responsible for environmental review determines that an emergency exists that makes it necessary to take immediate action to prevent imminent damage to public health or safety, or sensitive or protected environmental resources in a timeframe that precludes preparing and completing the usual NEPA review, which is comprised of analysis and documentation, the responsible APHIS official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practicable.
Proposed paragraph (b) of § 372.15 would specify that, if a proposed emergency action is normally analyzed in an EA and the nature and scope of proposed emergency actions are such that there is insufficient time to prepare an EA and FONSI before commencing the proposed action, the Administrator shall consult with APHIS' Chief of Environmental and Risk Analysis Services (ERAS) about completing the required NEPA compliance documentation and may authorize alternative arrangements for completing the required NEPA compliance documentation. Any alternative arrangements should focus on minimizing adverse environmental impacts of the proposed action and the emergency, and they are limited to those actions that are necessary to control the immediate aspects of the emergency. To the maximum extent practicable, these alternative arrangements should include the content, interagency coordination, and public notification and involvement that would normally be undertaken for an EA concerning the action and cannot alter the requirements of the CEQ regulations at 40 CFR 1508.9(a)(1) and (b). Any alternative arrangement also must be documented, and APHIS' Chief of ERAS will inform CEQ of the alternative arrangements at the earliest opportunity.
Proposed paragraph (c) of § 372.15 would state that APHIS shall immediately inform CEQ, through APHIS' interagency NEPA contact, when the proposed action is expected to result in significant environmental effects and there is insufficient time to allow for the preparation of an EIS. APHIS would consult CEQ and request alternative arrangements for preparing the EIS documentation in accordance with CEQ regulations.
These procedures are consistent with the CEQ regulations and guidance, and they provide clear direction to APHIS staff and the public on how APHIS will approach emergency NEPA compliance. By explicitly providing for these emergency situations within our implementing regulations, we would ensure that timely emergency actions to counter disease and pest risks can be implemented and also ensure appropriate compliance with NEPA requirements.
The name and address provided for the Agency's NEPA contact (§§ 372.3 and 372.4) are outdated. This proposal would update that information. The present agency contact for APHIS is Environmental and Risk Analysis Services, PPD, APHIS, USDA, 4700 River Road, Unit 149, Riverdale, MD 20737-1238; (301) 851-3089.
Due to the proposed reorganization of APHIS' NEPA implementing regulations, paragraph (a)(3) of current § 372.9 would be found in § 372.13. This paragraph has indicated that, when changes are made to EAs and findings of no significant impact, all commenters on the EA will be mailed copies of changes directly. Due to the high volume of comments we receive that do not include mailing addresses, this provision is impractical, and we are proposing to remove it from the regulations. Consistent with the CEQ regulations at 40 CFR 1506.6(b)(1), paragraph (a)(3) of proposed § 372.13 would indicate that we would mail notice to those who provide a mailing address and who have specifically requested it on an individual action. We would continue to make all our environmental documentation publicly available on the APHIS Web site and interested parties can sign up for notifications from
This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.
We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which 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, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under
The proposed rule would amend regulations that guide APHIS' implementation of the National Environmental Policy Act (NEPA). The amended regulations would clarify when an environmental impact statement (EIS) or an environmental analysis (EA) for an action is normally required, provide additional categories of actions for which we would prepare such documents, expand the list of actions subject to categorical exclusion from further environmental documentation and provide examples of such actions, and establish an environmental documentation process for use in regulatory emergencies.
Potentially affected entities include individuals, businesses, organizations, governmental jurisdictions, and other entities involved with APHIS in the NEPA process. A small number of these entities may experience time and money savings. For example, in 2014 we estimate that 7 of 62 EAs would have qualified for a categorical exclusion under the amended regulations. In 2015 and 2016 respectively, we estimated that 10 of 87 and 7 of 25 EAs would have qualified for a categorical exclusion under the amended regulations. Resulting cost savings for APHIS and the affected entities are difficult to quantify and would vary by the nature of the proposed actions. It typically takes 1 week to 3 months to prepare an EA to begin clearance. It typically takes 2 to 3 years to prepare an EIS to begin clearance.
The proposal would make APHIS' NEPA process more transparent and efficient. The effects would be beneficial, but not significant. A small number of entities may experience time and money savings as a result of not having to provide the information necessary for completion of an EA. Affected small entities would include university researchers, research companies that produce veterinary biologics, research and diagnostic labs serving farmers, and producers of biocontrol agends, including Tribal entities. The proposed rule would not have a significant economic impact on a substantial number of small entities.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (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) administrative proceedings will not be required before parties may file suit in court challenging this rule.
This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.
APHIS has assessed the potential impact of this proposed rule and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, APHIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.
This proposed rule would revise the regulations that guide APHIS employees in NEPA analysis and documentation for animal and plant health management, wildlife damage management, and animal welfare management activities. CEQ regulations do not require agencies to prepare a NEPA analysis or document before establishing agency procedures that
This proposed rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
Administrative practice and procedure, Environmental assessment, Environmental impact statement.
Accordingly, we are proposing to amend 7 CFR part 372 as follows:
42 U.S.C. 4321
Information, including the status of studies, and the availability of reference materials, as well as the informal interpretations of APHIS' NEPA procedures and other forms of assistance, will be made available upon request to the APHIS NEPA contact at: Policy and Program Development, APHIS, USDA, Attention: NEPA Contact, 4700 River Road, Unit 149, Riverdale, MD 20737-1238, (301) 851-3089.
The additions and revisions read as follows:
(a) Formulation of contingent response strategies to combat future widespread outbreaks of animal and plant diseases.
(b) Adoption of strategic or other long-range plans that prescribe a preferred course of action for future actions implementing the plan.
§§ 372.8 through 372.10 [Redesignated as §§ 372.12 through 372.14]
(a) Policymakings, rulemakings, and actions that seek to remedy specific animal and plant health risks or that may affect opportunities on the part of the public to influence agency environmental planning and decisionmaking. Examples of this category of actions include:
(1) Development of program plans to adopt strategies, methods, and techniques as the means of dealing with particular animal and plant health risks that may arise in the future; and
(2) Implementation of program plans at the site-specific action level.
(b) Planning, design, construction, or acquisition of new facilities, or proposals for substantial modifications to existing facilities.
(c) Disposition of waste and other hazardous or toxic materials at laboratories and other APHIS facilities.
(d) Approvals and issuance of permits or licenses for proposals involving regulated genetically engineered or nonindigenous species.
(e) Programs to reduce damage or harm by a specific wildlife species or group of species, such as deer or birds, or to reduce a specific type of damage or harm, such as protection of agriculture from wildlife depredation and disease; for the management of rabies in wildlife; or for the protection of threatened or endangered species.
(f) Research or testing that will be conducted outside of a laboratory or other containment area or reaches a stage of development (
(g) Determination of nonregulated status for genetically engineered organisms.
(a)(1) Categorically excluded actions share many of the same characteristics—particularly in terms of the extent of program involvement, as well as the scope and effect of proposed actions—as actions that normally require environmental assessments but not necessarily environmental impact statements. APHIS considers that mitigation measures alone are not the sole key factor. Rather, there are several factors that should be included in determining whether a category of actions is categorically excluded: The extent to which mitigation measures to avoid or minimize adverse environmental impacts have been built into the actions themselves and, in some cases, standard operating procedures; Agency expertise and experience implementing the actions; and whether testing or monitoring have demonstrated there normally is no potential for significant environmental impacts. The use of a categorical exclusion requires the following three evaluation criteria be met:
(i)
(ii)
(iii) The action occurs in a limited area, does not permanently adversely affect the area, and is performed with well-established procedures.
(2) The Department has promulgated a listing of categorical exclusions that are applicable to all agencies within the Department unless their procedures provide otherwise. The Departmental categorical exclusions, codified at § 1b.3(a) of this title, apply to APHIS. Additional categorical exclusions specific to APHIS are provided in §§ 372.8 through 372.10.
(3) The use of a categorical exclusion does not relieve the responsible Agency official from compliance with other statutes, such as the Resource Conservation and Recovery Act, the Endangered Species Act, or the National Historic Preservation Act. Such consultations may be required to determine the applicability of the categorical exclusion screening criteria.
(4) For categorical exclusions requiring a brief presentation of conclusions reached during screening and review of extraordinary circumstances, determinations should be presented in a record of environmental consideration. This determination can be made using current information and expertise as long as the basis for the determination is included in the record of environmental consideration. Copies of appropriate interagency correspondence can be attached to the record of environmental consideration. Example conclusions that may be reached after a review of extraordinary circumstances include:
(i) The U.S. Fish and Wildlife Service concurred through informal consultation that endangered or threatened species or designated habitat are not likely to be adversely affected.
(ii) The U.S. Army Corps of Engineers determined that the action is covered by a nationwide general permit.
(iii) State and/or local natural resource agencies have been consulted to ensure compliance with applicable environmental laws and regulations for protecting and managing natural resources such as native plant and animal species.
(b) Whenever the Agency official responsible for environmental review determines that an extraordinary circumstance is present such that a normally categorically excluded action may have the potential to significantly affect the quality of the human environment, an environmental assessment or an environmental impact statement will be prepared. Specific extraordinary circumstances for individual categorically excluded actions are listed with those actions in §§ 372.8 through 372.10.
(c)
(1) A reasonable likelihood of significant impact on public health or safety.
(2) A reasonable likelihood of significant environmental effects (direct, indirect, and cumulative).
(3) A reasonable likelihood of involving effects on the environment that involve risks that are highly uncertain, unique, or are scientifically controversial.
(4) A reasonable likelihood of violating any Executive Order, Federal law, or requirements imposed for the protection of the environment.
(5) A reasonable likelihood of adversely affecting environmentally sensitive resources, unless the impact has been resolved through another environmental process (
(i) Proposed federally listed, threatened, or endangered species or their designated critical habitats.
(ii) Properties listed or eligible for listing on the National Register of Historic Places.
(iii) Areas having special designation or recognition such as prime or unique agricultural lands; coastal zones; designated wilderness or wilderness study areas; wild and scenic rivers; National Historic Landmarks (designated by the Secretary of the Interior); floodplains; wetlands; sole source aquifers; National Wildlife Refuges; National Parks; areas of critical environmental concern; or other areas of high environmental sensitivity.
(iv) Cultural, scientific, or historic resources.
(6) A reasonable likelihood of dividing or disrupting an established community or planned development.
(7) A reasonable likelihood of causing a substantial increase in surface transportation congestion that will decrease the level of service below acceptable levels.
(8) A reasonable likelihood of adversely impacting air quality, exceeding, or violating Federal, State, local, or Tribal air quality standards under the Clean Air Act, as amended.
(9) A reasonable likelihood of adversely impacting water quality, sole source aquifers, public water supply systems or State, local, or Tribal water quality standards established under the Clean Water Act and the Safe Drinking Water Act.
(10) A reasonable likelihood of effects on the quality of the environment that are highly controversial on environmental grounds. The term “controversial” means a substantial scientific dispute exists as to the size, nature, or effect of the proposed action rather than to the existence of opposition to a proposed action, the effect of which is relatively undisputed.
(11) A reasonable likelihood of a disproportionately high and adverse effect on low income or minority populations.
(12) Limit access to or ceremonial use of Indian sacred sites on Federal lands by Indian religious practitioners, or significantly adversely affect the physical integrity of sacred sites.
(13) Unless releases are supported by a biocontrol risk analysis or expert panel recommendation that accompanies the administrative record for the categorical exclusion documentation, the proposed action has a reasonable likelihood of contributing to the introduction, continued existence, or spread of federally recognized noxious weeds or non-native invasive species known to occur in the area; or actions that may promote the introduction, growth, or expansion of the range of noxious weed species.
(14) A greater scope or size than is normal for this category of action.
(15) A reasonable likelihood of degrading already existing poor environmental conditions. Also, initiation of a degrading influence, activity, or effect in areas not already significantly modified from their natural condition.
(16) A precedent (or makes decisions in principle) for future or subsequent actions that have a reasonable likelihood of having a future significant effect.
(17) A reasonable likelihood of:
(i) Releases of petroleum, oils, and lubricants (except from a properly functioning engine or vehicle) or reportable releases of hazardous or toxic substances as specified in 40 CFR part 302, Designation, Reportable Quantities, and Notification); or
(ii) Where the proposed action requires development or amendment of a Spill Prevention, Control, or Countermeasures Plan.
(a)
(b)
(1) Commodity labels;
(2) Issuance of a specific identification number;
(3) Animal tags;
(4) Radio transmitters;
(5) Microchips; and
(6) Chemicals (such as tetracycline or rhodamine B ingestion).
(c)
(1) Physical examination of plants, plant products, and animals at the port of entry.
(2) Review of containment facilities.
(3) Review of paperwork and records to assure compliance with program regulations and standards.
(d)
(1) Collection of biological or environmental samples, such as tissue,
(2) Continual checking, by testing, trapping, or observing for the presence, absence, or prevalence of animals, pests, or disease. Information may be used to support a pest or disease status (such as pest-free or disease-free status).
(3) Surveying and monitoring for disease may or may not require the lethal removal of the animal and can often be conducted using nonlethal methods, such as collection of samples from animals killed or removed for reasons related to disease monitoring (
(4) Randomly selecting animals and obtaining blood samples to survey for disease, or collection of test samples.
(e)
(f)
(1) Confiscation of a commodity that could be a vector for a plant or animal disease or pest, or an animal or plant determined to be infested, infected, exposed, or not in compliance with APHIS regulations (such as one moved illegally or without proper paperwork).
(2) Seizure of a nonregulated commodity, seed, or propagative material containing regulated genetically engineered material.
(g)
(1) Quarantine of an area in which a pest or disease is known to occur to prevent movement of animals, plants, or other articles whose movement could spread the pest or disease.
(2) Changes in pest or disease status for an area or country, such as expansion or rescission of existing quarantines.
(3) Removal of quarantine restrictions when APHIS determines that it is appropriate to do so.
(h)
(1) Removal of animals in accordance with permits and agreements from the appropriate management agencies, or otherwise in accordance with regulations governing management of a species, for the purpose of approved research studies, surveillance and monitoring, or disease or damage management, or due to pest concerns.
(2) Removal of animals or materials from premises.
(3) Removal of trees or shrubs and plants.
(4) Disposal or destruction of materials for which the Agency has regulatory authority due to, for example, completion of acknowledged or permitted activities, completion of regulated activities, or noncompliance and disposal of animals. This can include disposal of regulated articles (fruits, meat, regulated genetically engineered organisms, etc.) at ports of entry designated by U.S. Customs and Border Protection (CBP).
(5) Routine disposal of carcasses using other approved methods, such as donation for human consumption, composting, chemical digestion, burial, and incineration.
(6) Depopulation of domestic livestock and captive wildlife due to the presence of an animal disease or the reasonable suspicion of the presence of an animal disease.
(i)
(1) Treatment of regulated articles at existing facilities, such as irradiation treatment and methyl bromide special use treatment.
(2) Treatment of a facility, container, or cargo hold at the port of entry to mitigate pest threats.
(3) Cleaning and disinfection of equipment, cages, facilities, or premises.
(4) Treatment of animal carcasses, using methods such as incineration, alkaline digestion, or rendering as a method to devitalize infectious material.
(j)
(1) Inoculation or treatment of discrete herds of livestock or wildlife undertaken in contained areas (such as a barn or corral, a zoo, an exhibition, or an aviary).
(2) Use of vaccinations or inoculations including new vaccines (for example, genetically engineered vaccines) and applications of existing vaccines to new species provided that the project is conducted in a controlled and limited manner, and the impacts of the vaccine can be predicted.
(k)
(1) Restraining or handling livestock, poultry, or wildlife to facilitate examination or other activities.
(2) Cultural methods and basic habitat management, such as nonlethal management activities such as removal of food sources, modification of planting systems, modification of animal husbandry practices, water control devices for beaver dams, limited beaver dam removal, and pruning trees.
(3) Site-specific applications of nonlethal wildlife damage management practices, such as frightening devices, exclusion, capture and release, and capture and relocation.
(l)
(1) Records documenting the results of trapping for insects.
(2) Records of the application of treatments.
(3) Labels indicating that the movement of a regulated article to certain areas within the United States is illegal.
(4) Records retained by approved livestock facilities and listed slaughtering or rendering establishments under 9 CFR part 71.
Licensing and permitting refer to the issuance of a license, permit, or authorization to entities including individuals, manufacturers, distributors, agencies, organizations, or universities for field testing, environmental release, or importation or movement of animals; plants; animal, plant, or veterinary biological products; or any other regulated article. Authorization and approval are for an entity to participate in a program or perform an action. Examples of this category of action are:
(a)
(i) Use of permits to control the interstate movement of restricted animals, such as issuance of an official document or a State form allowing the movement of restricted animals to a particular destination.
(ii) Use of permits for entry, such as pre-movement authorization for entry of animals into a State from the State animal health official of the State of destination.
(iii) Approval of international movements through the use of import and export health certificates and import or export movement permits.
(iv) Authorization to move animals out of the quarantine or buffer zone for cattle fever ticks by documentation (a State form) that confirms the animals have been inspected and found to be tick-free.
(2) Licensing of swine garbage feeding operations.
(3) Accreditation of private veterinarians.
(4) Approval and permitting of laboratories to conduct official tests.
(5) Approval of identification manufacturers to produce identification, tests, and identification devices.
(6) Listing of slaughter and rendering establishments for surveillance under 9 CFR 71.21.
(7) Approval of herd and premises plans that have environmental or waste management components.
(8) Approval of herd accreditation for tuberculosis or certification for brucellosis to document the herd's freedom from disease.
(9) Funding the depopulation of diseased herds, including indemnity and carcass disposal; authorization and funding of the collection and submission of tissue samples for testing.
(10) Approval of participation in the National Poultry Improvement Plan by issuance of a permanent approval number in accordance with 9 CFR 145.4.
(11) Authorization to ship and field test previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines).
(12) Issuance of a license or permit for previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines).
(13) Issuance of a license, permit, authorization, or approval for uses of pure cultures of organisms (relatively free of extraneous micro-organisms and extraneous material) that are not strains of quarantine concern and occur, or are likely to occur, in a State's environment.
(14) Issuance of permits and approval of facilities to import, transport, introduce, or release live animals and products or byproducts thereof, or other organisms for which proven risk mitigation measures are applied and will require no substantial modification for the specific articles under consideration. This includes importation or interstate movement of meat, milk/milk products, eggs, hides, bones, animal tissue extracts, etc., which present no disease risk or for which there are proven animal disease risk mitigation measures, such as heating, acidification, or standard chemical treatment.
(b)
(2) Issuance of permits for the use of organisms biologically incapable of persisting in the permitted environment.
(3) Issuance of permits for uses outside of containment that are pure cultures of organisms and that are not strains of quarantine concern and occur or are likely to occur in a State's environment, and issuance of permits for the interstate movement of organisms that occur or are likely to occur in a State's environment.
(4) Issuance of permits or approvals for the importation of articles that are regulated due to plant health concerns, when the permit contains conditions that will mitigate any plant pest risk associated with the articles.
(5) Issuance of certificates or limited permits for the movement of regulated articles from areas quarantined due to plant pests.
(6) Issuance of permits for the importation or interstate movement of regulated noxious weeds and other regulated seeds.
(7) Issuance of permits for prohibited or restricted articles unloaded and landed for immediate transshipment or transportation and exportation.
(c)
(2) Extension of nonregulated status under part 340 of this chapter to organisms similar to those already deregulated.
(3) Notifications for environmental release, importation, or interstate movement of regulated genetically engineered organisms.
(a)
(1) Vaccination trials that occur on groups of animals in areas designed to limit interaction with similar animals, or that include other controls needed to mitigate potential risk.
(2) Evaluation of uses for chemicals not specifically listed on the product label, if they are used in a manner designed to limit potential effects to nontarget species.
(3) The development and/or production (including formulation,
(4) Research using chemicals, management tools, or devices to test the efficacy of methods; new vaccinations not currently approved to test in the natural environment; the use of mechanical devices (such as noise and light deterrence); and existing vaccinations, chemicals, or devices used in a new way on an animal, pest, or disease similar to those on which they have previously been used.
(5) Research related to the development and evaluation of wildlife management tools, such as animal repellents, scare devices, fencing, and pesticides.
(6) Development, production, and release of sterile insects.
(b)
(1) Renovation of existing laboratories and other APHIS facilities.
(2) Functional replacement of parts and equipment.
(3) Minor additions to existing APHIS facilities.
(4) Minor excavations of land and repairs to properties.
(5) Construction, expansion, or improvement of a facility if:
(i) The structure and proposed use are in compliance with all Federal, State, Tribal, and local requirements;
(ii) The site and scale of construction are consistent with those of existing adjacent or nearby buildings; and
(iii) The size, purpose and location of the structure is unlikely to have significant environmental consequences or create public controversy.
Prospective applicants who anticipate the need for approval of proposed activities classified as normally requiring environmental documentation should contact, at their earliest opportunity, APHIS' program staff. APHIS program officials will help them determine the types of environmental analyses or documentation, if any, that need to be prepared and how they may inform decisions. The NEPA documents will incorporate by reference (as required by the CEQ regulations in 40 CFR 1502.21), to the fullest extent practicable, surveys and studies required by other environmental statutes.
The revisions read as follows:
(b) * * *
(2) Opportunities for public involvement in the environmental assessment process will be announced in the same fashion as the opportunities for public involvement in the environmental impact statement process.
(4) All environmental documents and comments received will be made available to the public via
The addition and revision read as follows:
(a) * * * This determination is based on information provided in the NEPA document and available in the administrative record.
(3) Changes to environmental assessments and findings of no significant impact that are prompted by comments, new information, or any other source, will normally be announced in the same manner as the notice of availability prior to implementing the proposed action or any alternative. APHIS will mail notice upon request.
Once a decision to supplement an environmental impact statement is made, a notice of intent will be published. The administrative record kept in connection with the EIS will thereafter be reopened if the supplemental environmental impact statement is issued after the record of decision is issued. The supplemental document will then be processed in the same fashion (exclusive of scoping) as a draft and a final statement (unless alternative procedures are approved by CEQ) and will become part of the administrative record.
An emergency exists when immediate threats to human health and safety or immediate threats to sensitive or protected resources require that action be taken in a timeframe that does not allow sufficient time to follow the procedures for environmental review established in the CEQ regulations and the regulations in this part.
(a) When the Administrator or the Administrator's delegated Agency official responsible for environmental review determines that an emergency exists that makes it necessary to take immediate action to prevent imminent damage to public health or safety, or sensitive or protected environmental resources in a timeframe that precludes preparing and completing the usual NEPA review, which is comprised of analysis and documentation, the responsible APHIS official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practicable.
(b) If a proposed emergency action is normally analyzed in an environmental assessment as described in § 372.6 and the nature and scope of proposed emergency actions are such that there is insufficient time to prepare an EA and FONSI before commencing the proposed action, the Administrator shall consult with APHIS' Chief of Environmental and Risk Analysis Services about completing the required NEPA compliance documentation and may authorize alternative arrangements for completing the required NEPA compliance documentation. Any alternative arrangements must be documented and notice of their use provided to CEQ.
(c) APHIS shall immediately inform the CEQ, through APHIS' interagency
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Supplemental notice of proposed rulemaking.
This supplemental notice of proposed rulemaking (SNOPR) proposes to establish test procedures for certain categories of general service lamps (GSLs) to support the ongoing energy conservation standards rulemaking. Specifically, this rulemaking proposes new test procedures for determining the initial lumen output, input power, lamp efficacy, power factor, and standby mode power of GSLs that are not integrated light-emitting diode (LED) lamps, compact fluorescent lamps (CFLs), or general service incandescent lamps (GSILs). This SNOPR revises the previous proposed test procedures for GSLs by referencing Illuminating Engineering Society (IES) LM-79-08 for the testing of non-integrated LED lamps. The U.S. Department of Energy (DOE) is also proposing to clarify references to the existing lamp test methods and sampling plans for determining the represented values of integrated LED lamps, CFLs, and GSILs.
DOE will accept comments, data, and information regarding this SNOPR no later than August 19, 2016. See section V, “Public Participation,” for details.
Any comments submitted must identify the SNOPR for Test Procedures for Certain Categories of General Service Lamps, and provide docket number EERE-2016-BT-TP-0005 and/or regulatory information number (RIN) 1904-AD64. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this SNOPR, “Public Participation.”
A link to the docket Web page can be found at
For further information on how to submit a comment or review other public comments and the docket, contact Ms. Lucy deButts at (202) 287-1604 or by email:
Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 287-1604. Email:
Mr. Pete Cochran, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 586-9496. Email:
DOE proposes to incorporate by reference into 10 CFR part 430 specific sections of the following industry standards:
(1) IEC 62301 (“IEC 62301-DD”), Household electrical appliances—Measurement of standby power (Edition 2.0, 2011-01).
A copy of IEC 62301-DD may be obtained from the International Electrotechnical Commission, available from the American National Standards Institute, 25 W. 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or go to
(2) IES LM-9-09 (“IES LM-9-09-DD”), IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps.
(3) IES LM-20-13, IES Approved Method of Photometry of Reflector Type Lamps.
(4) IES LM-45-15, IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps.
(5) IES LM-79-08 (“IES LM-79-08-DD”), IES Approved Method for the Electrical and Photometric Measurement of Solid-State Lighting Products.
Copies of IES LM-9-09-DD, IES LM-20-13, IES LM-45-15, and IES LM-79-08-DD can be obtained from Illuminating Engineering Society of North America, 120 Wall Street, Floor 17, New York, NY 10005-4001, or by going to
See section IV.M for a further discussion of these standards.
Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291,
Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making representations about the energy use or efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
DOE is developing energy conservation standards for general service lamps (GSLs) and published a notice of proposed rulemaking on March 17, 2016 (March 2016 GSL ECS NOPR). In support of the standards rulemaking, DOE has undertaken several rulemakings to amend existing test procedures and to adopt new test procedures for GSLs. On July 1, 2016, DOE published a final rule adopting test procedures for integrated light-emitting diode (LED) lamps. 81 FR 43404 (July 2016 LED TP final rule). DOE has proposed to amend test procedures for medium base compact fluorescent lamps (MBCFLs) and to adopt test procedures for new metrics for all compact florescent lamps (CFLs) including hybrid CFLs and CFLs with bases other than a medium screw base. 80 FR 45724 (July 31, 2015) (July 2015 CFL TP NOPR).
On March 17, 2016, DOE published a NOPR (March 2016 GSL TP NOPR) that proposed test procedures for certain categories of GSLs not currently covered under these existing test procedures. 81 FR 14632. This SNOPR revises the test procedures proposed in the March 2016 GSL TP NOPR by referencing Illuminating Engineering Society (IES) LM-79-08 for the testing of non-integrated LED lamps. Manufacturers of lamps subject to this rulemaking would be required to use these test procedures to assess performance relative to any potential energy conservation standards the lamps must comply with in the future and for any representations of energy efficiency.
EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides, in relevant part, that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Pursuant to this authority, DOE proposes to prescribe test procedures for certain categories of GSLs in support of the GSL standards rulemaking.
In this SNOPR, DOE proposes test procedures for determining initial lumen output, input power, lamp efficacy, power factor, and standby mode power for certain categories of GSLs for which DOE does not have an existing regulatory test procedure. Based on public comment received in response to the March 2016 GSL TP NOPR, DOE proposes to reference IES LM-79-08 for the testing of non-integrated LED lamps. DOE's proposals for the standby mode test procedure, represented value calculations, and certification and rounding requirements remain unchanged from the March 2016 GSL TP NOPR. DOE also notes that representations of energy use or energy efficiency must be based on testing in accordance with this rulemaking, if adopted, beginning 180 days after the publication of a test procedure final rule.
GSL is defined by EPCA to include GSILs, CFLs, general service light-emitting diode (LED) lamps (including organic LEDs (OLEDs)), and any other lamp that DOE determines is used to satisfy lighting applications traditionally served by GSILs. (42 U.S.C. 6291(30)(BB)) In the March 2016 GSL ECS NOPR, DOE proposed to include in the definition for general service lamp a lamp that has an ANSI
DOE received comments from China
DOE understands that the current industry practice is to test OLED lamps according to IES LM-79-08, a test standard that is applicable to solid-state lighting products, including both LED and OLED lamps. In this SNOPR, DOE proposes to reference LM-79-08 to determine initial lumen output, input power, lamp efficacy, and power factor for OLED lamps. If a new test procedure is developed by industry members and/or related researchers, DOE will consider it in a future revision of this test procedure.
China commented that in section III.A of the March 2016 GSL TP NOPR, DOE referred to its proposed definition of a GSL from the March 2016 GSL ECS NOPR, which includes lamps with an initial lumen output of 310 lumens or greater. China noted that in Energy Star Lamps Specification V2.0, the lumen range of products used to replace a 25 watt (W) incandescent lamp is between 250 and 449 lumens. China stated that the difference between the proposed definition of GSL in the March 2016 GSL ECS NOPR and the products covered in the Energy Star Lamps Specification V2.0 would cause confusion on how to test lamps with lumen outputs less than 310 lumens. Therefore, China suggested that DOE clarify the test requirements for lamps below 310 lumens. (China, No. 8 at p. 1)
DOE notes that this SNOPR proposes test procedures for GSLs that are not GSILs, CFLs, or integrated LED lamps. The March 2016 GSL ECS NOPR proposed a definition of GSL that would be limited to products with a lumen output of 310 lumens or greater (or 232 lumens or greater for modified spectrum general service incandescent lamps). 81 at FR 14628. DOE recognizes that ENERGY STAR Lamps Specification V2.0 includes products with a lumen output of less than 310 lumens. To determine how such lamps should be evaluated under ENERGY STAR Lamps Specification V2.0, interested parties will need to consult the ENERGY STAR document.
China commented that, while section III.B of the March 2016 GSL TP NOPR stated that the term GSL includes many types of lamps using varying lighting technologies, it understood from the discussion in section III.A that halogen lamps were excluded from the definition of GSL. China requested clarification on whether the proposed rule would cover halogen lamps. (China, No. 8 at p. 1)
As noted in this preamble, a definition of GSL was proposed in the March 2016 GSL ECS NOPR, and that proposed definition does not exclude halogen lamps generally. This SNOPR proposes test procedures for other incandescent lamps,
China commented that section III.B of March 2016 GSL TP NOPR did not provide definitions for the eight general purpose lamps mentioned in Table III.1, making it difficult to distinguish between “other non-incandescent reflector type,” “general purpose incandescent,” “compact fluorescent lamps,” and “other types of fluorescent lamps.” China recommended that DOE use IEC 61231, which it stated is internationally accepted for classifying the types of lamps mentioned in Table III.1 of the March 2016 GSL TP NOPR. (China, No. 8 at pp. 1-2)
Table III.1 of the March 2016 GSL TP NOPR referenced the test procedures that would be applicable to GSLs based on lamp technology: GSILs, CFLs, integrated LED lamps, other incandescent lamps that are not reflector lamps, other incandescent lamps that are reflector lamps, other fluorescent lamps, OLED lamps, and non-integrated LED lamps. 81 FR 14634. DOE notes that definitions for many of these lamp types either already exist in 10 CFR 430.2 or were proposed in the March 2016 GSL ECS NOPR. GSIL is currently defined at 10 CFR 430.2. A definition of CFL was proposed to be added to 10 CFR 430.2 in the July 2015 CFL TP NOPR. 80 FR at 45739. A definition of integrated LED lamp was recently added to 10 CFR 430.2 in the July 2016 LED TP final rule. 81 FR at 43426. The references to “other incandescent lamps” in Table III.1 were to lamps that meet the definition of GSL (as would be established in a GSL standards final rule) that are incandescent lamps other than GSILs. A definition of “reflector lamp” has been proposed in the March 2016 GSL ECS NOPR. 81 FR 14629. Regarding fluorescent lamps, reference to “other fluorescent lamps” in Table III.1 of the March 2016 GSL TP NOPR was to fluorescent lamps that meet the definition of GSL (to be finalized in the standards final rule) but do not meet the definition of CFL (which is another lamp type specifically included in the GSL term) or general service fluorescent lamp (which is a lamp type specifically
China commented that section III.B of the March 2016 GSL TP NOPR includes integrated and non-integrated LEDs, with corresponding test procedures. China pointed out that IEC 62838:2015 includes semi-integrated LEDs as well. China recommended that DOE include semi-integrated LEDs and their corresponding referenced test procedure. (China, No. 8 at p. 2) DOE notes that it has proposed definitions for integrated and non-integrated lamps in the March 2016 GSL ECS NOPR. 81 FR 14628. Under the proposed definitions of integrated lamp and non-integrated lamp, semi-integrated LEDs would be considered a type of non-integrated lamp because, as described in IEC 62838:2015, they require the use of some external components.
China commented that section III.B of the March 2016 GSL TP NOPR referenced the integrated LED lamp test procedure in appendix BB of 10 CFR part 430 subpart B. However, China noted that this appendix is not yet published. China recommended that DOE publish the documents corresponding to this appendix. (China, No. 8 at p. 2) DOE notes that appendix BB of 10 CFR part 430 subpart B, containing the integrated LED test
As described in section III.A, both the statutory definition and proposed regulatory definition of GSL cover many types of lamps using a variety of lighting technologies. For several of the included lamp types, energy conservation standards and test procedures already exist. GSILs are required to comply with the energy conservation standards in 10 CFR 430.32(x), and test procedures for these lamps are in Appendix R to subpart B of 10 CFR part 430. In a separate test procedure rulemaking, DOE has proposed to amend the test procedures for MBCFLs and to establish new test procedures for all other CFLs. 80 FR 45724. Once finalized, the updated and new test procedures will appear at appendix W to subpart B of 10 CFR part 430. In addition, DOE recently issued test procedures for integrated LED lamps. 81 FR 43404. Although integrated LED lamps are not currently required to comply with energy conservation standards, DOE has proposed standards for them in the March 2016 GSL ECS NOPR. 81 FR 14530. The test procedures for integrated LED lamps will be located in new appendix BB to subpart B of 10 CFR part 430.
If DOE test procedures already exist or were proposed in an ongoing rulemaking (such as for GSILs, CFLs, and integrated LED lamps), DOE proposed in the March 2016 GSL TP NOPR to reference those specific provisions in the GSL test procedures. For all other GSLs, DOE proposed new test procedures, intending to reference the most recently published versions of relevant industry standards. 81 FR 14631, 14633. Of the proposed test procedures, DOE received comments on those for non-integrated LED lamps, other fluorescent lamps, and other incandescent lamps that are reflector lamps.
DOE received comments from three stakeholders regarding the proposed test procedures for non-integrated LED lamps. Private citizen Mat Roundy voiced support for DOE's proposed reference of CIE S 025/E:2015, stating that requiring manufacturers to use the same standard would improve effectiveness when implementing an energy conservation standard and promoting energy efficiency. (Roundy, No. 5 at p. 1) However, Osram Sylvania, Inc. (OSI) and the National Electrical Manufacturers Association (NEMA) commented that, although non-integrated LED lamps are not within the intended scope of IES LM-79-08, it is common industry practice to use IES LM-79-08 to test non-integrated LED lamps. NEMA and OSI both noted that the test procedure for ceiling fan light kits in appendix V1 to subpart B of 10 CFR 430 directs manufacturers to test other solid-state lighting (SSL) products using IES LM-79-08. NEMA and OSI therefore recommended that DOE allow manufacturers flexibility in choosing the test procedure for non-integrated lamps LED lamps. (OSI, No. 3 at p. 2; NEMA, No. 6 at p. 2)
In proposing test procedures for non-integrated LED lamps in the March 2016 GSL TP NOPR, DOE reviewed existing industry standards. In its review DOE initially determined that IES LM-79-08 was not intended for non-integrated LED lamps given that LM-79-08 states in section 1.1 that the test method covers “LED-based SSL products with control electronics and heat sinks incorporated, that is, those devices that require only AC mains power or a DC voltage power supply to operate.” Non-integrated LED lamps require external electronics; that is, the lamps are intended to connect to ballasts/drivers rather than directly to the branch circuit through an ANSI base and corresponding ANSI standard lamp holder (socket). Because non-integrated LED lamps require external electronics, DOE tentatively determined that IES LM-79-08 was not appropriate for non-integrated LED lamps, and therefore would not be the most relevant industry standard for these lamps.
Based on the comments received from NEMA and OSI, DOE investigated whether IES LM-79-08 is the more relevant test procedure for non-integrated LED lamps, regardless of the defined scope of the industry standard. In addition to the statements made by NEMA and OSI that IES LM-79-08 is relied upon by industry to test non-integrated lamps, DOE found one manufacturer of these products that states on its Web site that the performance specifications it reports are based on testing according to IES LM-79-08.
Upon reviewing the available information, DOE has tentatively determined that for the testing of non-integrated LED lamps, IES LM-79-08 is the more relevant industry standard at the present time, as compared to CIE S 025/E:2015. Further, DOE has reviewed IES LM-79-08 and finds it appropriate for testing non-integrated LED lamps for the purpose of determining compliance with the applicable energy efficiency standards.
However, because non-integrated LED lamps are not included in the applicable scope of this industry standard, DOE finds that additional instruction is necessary to ensure consistent and repeatable results. Specifically, DOE finds that IES LM-79-08 provides no information on which external ballast/driver or power supply to use for testing. After reviewing the approaches of independent test laboratories, DOE proposes that non-integrated LED lamps be tested according to IES LM-79-08, using the manufacturer-declared input voltage and current as the power supply. These quantities are typically not reported on the product packaging or in manufacturer literature. (DOE noted only two companies that do so.) DOE is therefore proposing to revise the requirements for certification reports to include these quantities for non-integrated LED lamps. While manufacturers usually list compatible ballasts/drivers for these products, DOE notes that it is unknown on which ballast/driver these lamps may operate when installed in the field. Furthermore, the test procedure should produce consistent and repeatable results. By requiring these lamps to be tested using the manufacturer-declared input voltage and current as the power supply, DOE's proposed approach is consistent with the industry practice of using reference ballasts for non-integrated lamps, such as non-integrated CFLs and GSFLs. For those products, industry standards (and DOE's test procedures) specify electrical settings for reference ballasts and each product is tested using those same settings.
Regarding the testing of other fluorescent lamps, OSI and NEMA commented that testing per sections 4 through 6 of IES LM-9-09 would be appropriate for double-ended fluorescent lamps, but questioned whether double-ended fluorescent lamps would be subject to the test procedures as these lamps would likely be considered general service fluorescent lamps, a type of lamp excluded from the definition of GSL. OSI suggested that sections 4 through 6 of IES LM-66-14 would be more applicable to cite as the test procedure for “other fluorescent lamps.” Specifically, OSI stated that IES LM-66-14 was the appropriate industry standard to reference for the commercially available induction lamps meeting the definition of GSL. (OSI, No. 3 at p. 2; NEMA, No. 6 at p. 3)
DOE has proposed to define compact fluorescent lamp as an integrated or non-integrated single-base, low-pressure mercury, electric-discharge source in which a fluorescing coating transforms some of the ultraviolet energy generated by the mercury discharge into light; the term does not include circline or U shaped fluorescent lamps. 80 FR at 45739. This proposed definition of CFL aligns with the scope of IES LM-66-14, which states that it describes test procedures for obtaining measurements of single-based fluorescent lamps, including both electrode and electrodeless (
While DOE is unaware of any lamps currently on the market that would be subject to testing as “other fluorescent lamps,” test procedures must be established for all potentially covered products. To address other fluorescent lamps that would not meet the definition of CFL but would otherwise be defined as GSLs (
OSI and NEMA supported the use of IES LM-20-13 for other incandescent lamps that are reflector lamps, but disagreed with referencing sections 4 through 8, especially section 7, as well as the lack of specific instructions to deviate from IES LM-20-13. OSI and NEMA noted that the March 2016 GSL ECS NOPR did not propose any requirements for beam angle, beam lumens, center beam candlepower, or beam pattern classification (the lamp characteristics measured under the test procedures in section 7 of IES LM-20-13) and thus recommended omitting reference to this section. NEMA also expressed confusion regarding DOE's inclusion of section 7, wondering whether its inclusion was an indication that goniophotometer systems may be allowed to measure luminous flux. NEMA recommended instead that DOE reference Appendix R to subpart B of 10 CFR 430 (test procedures for incandescent reflector lamps) for the testing of other incandescent lamps that are reflector lamps. (NEMA, No. 6 at p. 3)
For this SNOPR, DOE again reviewed the referenced sections (
DOE has determined not to reference appendix R for the testing of other incandescent lamps that are reflector lamps. DOE notes that the content of the referenced sections (sections 4, 5, 6, and 8) of IES LM-20-13 are consistent with the content of the sections of IES LM-20-94 referenced in appendix R. However, DOE has chosen not to reference Appendix R in order to avoid potential confusion; appendix R is applicable to incandescent reflector lamps but these lamps are not included in the definition of GSL. Therefore, for GSLs that are other incandescent lamps that are reflector lamps, DOE proposes referencing sections 4, 5, 6, and 8 of IES LM-20-13.
DOE did not receive any comments on referring to appendix R for general service incandescent lamps, to Appendix BB for integrated LED lamps, to IES LM-45-15 for other incandescent lamps that are not reflector lamps, or to IES LM-79-08 for OLED lamps. DOE did, however, review all references to industry standards to ensure that only necessary sections were referenced, as described in the previous paragraph. DOE removed all references to sections describing luminous intensity and/or color measurements as these are not necessary for the metrics covered by the test procedure. DOE also made references to IES LM-79-08 consistent with sections referenced in the July 2016 LED TP final rule; that is, DOE added a reference to section 1.3 (Nomenclature and Definitions) and removed the reference to section 6.0 (Operating Orientation). DOE instead specifies the appropriate operating orientation directly in appendix DD. DOE requests comment on the industry standards and sections of the industry standards referenced.
In the March 2016 GSL TP NOPR, DOE proposed to require that testing of initial lumen output, input power, lamp efficacy, power factor, and standby mode power (if applicable) for GSLs be conducted by test laboratories accredited by the National Voluntary Laboratory Accreditation Program (NVLAP) or an accrediting organization recognized by the International Laboratory Accreditation Cooperation (ILAC). DOE tentatively determined that since NVLAP is a member of ILAC, test data collected by any laboratory accredited by an accrediting body recognized by ILAC would be acceptable. 81 FR 14634. DOE noted that under existing test procedure regulations, testing for other regulated lighting products (such as general service fluorescent lamps, incandescent reflector lamps, and fluorescent lamp ballasts), in addition to general service lamps that must already comply with energy conservation standards (such as general service incandescent lamps and medium base compact fluorescent lamps), must be conducted in a similarly accredited facility. 10 CFR 430.25.
DOE received several comments regarding lab accreditation. OSI and NEMA disagreed with what they understood to be DOE's shift from the use of test laboratories accredited by NVLAP or an accrediting organization recognized by NVLAP, to test laboratories accredited by an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA). Citing to a 2013 version of the regulations, NEMA commented that the March 2016 GSL TP NOPR did not adequately explain why the non-GSL portions of the existing regulation needed to be changed. (NEMA, No. 6 at p. 3)
The comments received suggest that some commenters may not be familiar with the current regulatory text with regard to requirements for test laboratories. DOE notes that it did not propose to change the existing regulation as it relates to non-GSLs, but simply to include the testing of GSLs in the existing regulatory provision. The existing text in 10 CFR 430.25 states that the enumerated lamp types, including general service fluorescent lamps and incandescent reflector lamps (which are not general service lamps), must be tested by laboratories accredited by “an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA).” The discussion regarding NVLAP in the preamble to the 2016 March GSL TP NOPR was intended to clarify that testing could be conducted by a test laboratory accredited by NVLAP given that NVLAP is a signatory member to the ILAC MRA. 81 FR 14634.
TÜV SÜD commented that the proposed language for § 429.57(b)6, which requires each test report to include an NVLAP identification number or other NVLAP-approved identification, contradicts § 430.25, which requires testing to be performed in a laboratory accredited by an ILAC member. TÜV SÜD elaborated that this prevents laboratories accredited by, for example, SCC (Canada) or DAkks (Germany) from issuing a report with an NVLAP identification number unless it has another accreditation with NVLAP. TÜV SÜD recommended that DOE update the relevant portion of § 429.57(b)6 to read, “ . . . ILAC's accreditation bodies identification number or other ILAC accreditation bodies—approved identification . . . ” (TÜV SÜD, No. 2 at p. 1) DOE agrees with this comment and is proposing to update the language in § 429.57(b) to be consistent with § 430.25 and to include the recommended text. Similarly, DOE also proposes to update §§ 429.27(b) and 429.35(b) to be consistent with § 430.25.
UL commented that luminous efficacy results from lamp testing can range from +25% to −25% due to variations in laboratory accuracy and precision, which represents a significant range in the context of the efficacy levels proposed in the March 2016 GSL ECS NOPR. UL further commented that NVLAP accreditation is an accepted means to minimize variability between different labs. UL noted that NVLAP is an ILAC member, but NVLAP also requires participation in the National Institute of Standards and Technology (NIST) proficiency-testing program for SSL, which assists labs in improving and maintaining measurement accuracy and precision. UL recommended that DOE require any lab accredited by an ILAC member, other than NVLAP, to participate in the NIST SSL proficiency program. UL noted that this has been a requirement of the ENERGY STAR SSL program for many years. (UL, No. 4 at p. 2)
DOE notes that ISO/IEC 17025 states that a laboratory shall have quality control procedures for monitoring the validity of tests and calibrations undertaken.
NEMA recommended not deleting references to other products and applicable test methods, such as the following quoted portion: “The testing for general service fluorescent lamps, general service incandescent lamps, and
It appears that in its comments NEMA is referencing a prior version of 10 CFR 430.25. An amendment was made to 10 CFR 430.25 on June 5, 2015. 80 FR 31982. DOE notes that the text cited by NEMA does not currently exist in 10 CFR 430.25 and that the testing provisions are specified in 10 CFR 430.23.
DOE received comments regarding the compliance date proposed in the March 2016 GSL TP NOPR. OSI and NEMA commented that the 180-day compliance date places an undue burden on manufacturers. OSI and NEMA commented that until there is a need to comply with an efficacy standard, mandatory testing in CIE S 025 accredited laboratories would be an excessive requirement. NEMA commented that this burden is exacerbated given that many of the products proposed to be tested to CIE S 025 will likely not be compliant with 2020 standards and thus will cease manufacture and sales, causing a lost certification/accreditation investment. (OSI, No. 3 at pp. 3-4; NEMA, No. 6 at pp. 3-4)
As discussed in section III.B, DOE is not incorporating CIE S 025 by reference and therefore tentatively concludes that the compliance date will not introduce unnecessary burden. As noted previously, the referenced industry standard, IES LM-79-08, represents common industry practice for testing non-integrated LED lamps.
If adopted, the test procedures proposed in this SNOPR for GSLs that are not integrated LED lamps, CFLs, or GSILs, would be effective 30 days after publication in the
DOE proposes that after the effective date and prior to the compliance date of a GSL test procedure final rule, manufacturers may voluntarily begin to make representations with respect to the energy use or efficiency of GSLs that are not integrated LED lamps, CFLs, and GSILs and when doing so must use the results of testing pursuant to that final rule.
The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed the test procedures for GSLs proposed in this SNOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is set forth in the following paragraphs.
The Small Business Administration (SBA) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes are established by the North American Industry Classification System (NAICS). Manufacturing of GSLs is classified under NAICS 335110, “Electric Lamp Bulb and Part Manufacturing.” The SBA sets a threshold of 1,250 employees or less for an entity to be considered as a small business for this category.
In the March 2016 GSL TP NOPR, to estimate the number of companies that could be small businesses that sell GSLs, DOE conducted a market survey using publicly available information. DOE's research involved information provided by trade associations (
For this SNOPR, DOE reviewed its estimated number of small businesses. DOE updated its list of small businesses by revisiting the information sources described in this preamble. DOE screened out companies that do not meet the definition of a “small business,” or are completely foreign owned and operated. DOE determined that nine companies are small businesses that maintain domestic production facilities for general service lamps.
In the March 2016 GSL TP NOPR, DOE proposed test procedures for determining initial lumen output, input power, lamp efficacy, power factor, and standby power of GSLs. DOE noted that several of the lamp types included in the definition of general service lamp must already comply with energy conservation standards and therefore test procedures already existed for these lamps. If DOE test procedures already existed or were proposed in an ongoing rulemaking (such as for general service incandescent lamps, compact fluorescent lamps, and integrated LED lamps), DOE proposed to reference them directly. For all other general service lamps, DOE proposed new test procedures in the March 2016 GSL TP NOPR. For the new test procedures, DOE proposed to reference the most recent versions of relevant industry standards.
DOE estimated the testing costs and burden associated with conducting testing according to the new test procedures proposed in the March 2016 GSL TP NOPR for general service lamps. DOE did not consider the costs and burdens associated with DOE test procedures that already exist or that have been proposed in other ongoing rulemakings because these have been or are being addressed separately. DOE also assessed elements (testing methodology, testing times, and sample size) in the proposed CFL and integrated LED lamp test procedures that could affect costs associated with complying with this rule. Except for lab accreditation costs associated with CIE S 025/E:2015, which has been replaced with IES LM-79-08, the cost estimates of this SNOPR are the same as those determined under the March 2016 GSL TP NOPR. The following is an analysis of both in-house and third party testing costs associated with this rulemaking.
In the March 2016 GSL TP NOPR, DOE estimated that the labor costs associated with conducting in-house testing of initial lumen output, input power, and standby mode power were $41.68 per hour. DOE determined that calculating efficacy and power factor of a GSL would not result in any incremental testing burden beyond the cost of conducting the initial lumen output and input power testing. The cost of labor was then calculated by multiplying the estimated hours of labor by the hourly labor rate. For lamps not capable of operating in standby mode, DOE estimated that testing in-house in accordance with the appropriate proposed test procedure would require, at most, four hours per lamp by an electrical engineering technician. For lamps capable of operating in standby mode, DOE estimated that testing time would increase to five hours per lamp due to the additional standby mode power consumption test. DOE noted that these estimates are representative of the time it would take to test the most labor intensive technology, LED lamps. In total, DOE estimated that using the test method prescribed in the March 2016 GSL TP NOPR to determine initial light output and input power would result in an estimated labor burden of $1,670 per basic model of certain GSLs and $2,080 per basic model of certain GSLs that can operate in standby mode.
Because accreditation bodies
Additionally, DOE requested pricing from independent testing laboratories for testing GSLs. DOE estimated the cost for testing at an independent laboratory to be up to $1,070 per basic model. This estimate included the cost of accreditation as quotes were obtained from accredited laboratories.
DOE received comments from NEMA and OSI regarding the burden of testing non-integrated LED lamps in laboratories accredited to CIE standard CIE S 025/E:2015. NEMA and OSI commented that the small product sector of non-integrated LED lamps did not justify accrediting a lab to the CIE standard for such limited testing needs. (OSI, No. 3 at p. 2; NEMA, No. 6 at p. 2) They noted that the test facilities generally used by the lighting industry are not accredited for this referenced CIE test method, and would need to obtain and maintain this accreditation. OSI and NEMA commented that certifying a lab to CIE S 025 could cost approximately $10,000.00, which would be burdensome for all labs, regardless of size. OSI and NEMA noted that the current cost for CIE S 025/E:2015 is $241.00, compared to $25.00 for IES LM-79-08. OSI and NEMA further stated that the cost of the normative standards associated with CIE S 025/E:2015 must also be considered, including CIE 84-1989, which costs €98.46 and is not currently available from familiar sources. OSI and NEMA believe these costs could be burdensome for a small manufacturer. (OSI, No. 3 at pp. 3-4; NEMA, No. 6 at pp. 3-4)
As discussed in section III.B, DOE is no longer referencing CIE S 025 to test non-integrated LED lamps. Instead, DOE proposes to reference IES LM-79-08 which is also referenced for the testing of integrated LED lamps and OLED lamps. Because labs are already required to be accredited to IES LM-79-08 for testing integrated LED lamps per DOE's test procedure in Appendix BB and per ENERGY STAR's Lamps specification, DOE believes the majority of manufacturers and independent laboratories already have this accreditation. Therefore, DOE does not believe it is unduly burdensome to manufacturers or independent laboratories to be properly accredited to this standard.
DOE notes that its proposed test procedures directly reference existing industry standards that have been approved for widespread use by lamp manufacturers and test laboratories. The quantities that are directly measured, namely initial lumen output and input power, are commonly reported by the manufacturer on product packaging and on product specification sheets. Thus, testing for these quantities is already being conducted. Additionally, these quantities are required to be reported to ENERGY STAR if manufacturers certify the lamps as meeting the program requirements. Standby mode power consumption is also a reported quantity for the ENERGY STAR program, though it may not be a commonly reported value for lamps that are not certified with ENERGY STAR. In reviewing the lamps for which DOE proposes new test procedures in this rulemaking, DOE notes that very few products can operate in standby mode and therefore very few products would be required to make representations of standby mode energy consumption. Although DOE has proposed the requirement that all testing be conducted in accredited laboratories, DOE believes that many manufacturers of these products have already accredited their own in-house laboratories because they also make products such as general service incandescent lamps and medium base compact fluorescent lamps that are required to be tested in similarly accredited laboratories.
In summary, DOE does not consider the test procedures proposed in this SNOPR to have a significant economic impact on small entities. The final cost per manufacturer primarily depends on the number of basic models the manufacturer sells. These are not annual costs because DOE does not require manufacturers to retest a basic model annually. The initial test results used to generate a certified rating for a basic model remain valid as long as the basic model has not been modified from the tested design in a way that makes it less efficient or more consumptive, which would require a change to the certified rating. If a manufacturer has modified a basic model in a way that makes it more efficient or less consumptive, new testing is required only if the manufacturer wishes to make
Based on the criteria outlined earlier and the reasons discussed in this preamble, DOE tentatively concludes and certifies that the new proposed test procedures would not have a significant economic impact on a substantial number of small entities, and the preparation of an IRFA is not warranted. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).
DOE established regulations for the certification and recordkeeping requirements for certain covered consumer products and commercial equipment. 10 CFR part 429, subpart B. This collection-of-information requirement was approved by OMB under OMB control number 1910-1400.
DOE requested OMB approval of an extension of this information collection for three years, specifically including the collection of information proposed in the present rulemaking, and estimated that the annual number of burden hours under this extension is 30 hours per company. In response to DOE's request, OMB approved DOE's information collection requirements covered under OMB control number 1910-1400 through November 30, 2017. 80 FR 5099 (January 30, 2015).
Notwithstanding any other provision of the law, no person is required to respond to, nor must any person be subject to a 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.
In this proposed rule, DOE proposes test procedures for certain categories of GSLs that will be used to support the ongoing GSL standards rulemaking. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Public Law 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
This regulatory action to propose test procedures for certain categories of GSLs is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Public Law 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
The proposed test procedures for certain categories of GSLs incorporate testing methods contained in certain sections of the following commercial standards:
(1) IES LM-45-15, “IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps,” 2015;
(2) IES LM-20-13, “IES Approved Method for Photometry of Reflector Type Lamps,” 2013;
(3) IES LM-79-08, “Approved Method: Electrical and Photometric Measurements of Solid-State Lighting Products,” 2008;
(4) IES LM-9-09, “IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps,” 2009; and
(5) IEC Standard 62301 (Edition 2.0), “Household electrical appliances—Measurement of standby power,” 2011.
DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
In this SNOPR, DOE proposes to incorporate by reference certain sections of the test standard published by IEC, titled “Household electrical appliances—Measurement of standby power (Edition 2.0),” IEC 62301-DD. IEC 62301-DD is an industry accepted test standard that describes measurements of electrical power consumption in standby mode, off mode, and network mode. The test procedures proposed in this SNOPR reference sections of IEC 62301-DD for testing standby mode power consumption of GSLs. IEC 62301-DD is readily available on IEC's Web site at
DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps,” IES LM-9-09-DD. IES LM-9-09-DD is an industry accepted test standard that specifies procedures to be observed in performing measurements of electrical and photometric characteristics of fluorescent lamps under standard conditions. The test procedures proposed in this SNOPR reference sections of IES LM-9-09-DD for performing electrical and photometric measurements of other fluorescent lamps. IES LM-9-09-DD is readily available on IES's Web site at
DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for Photometry of Reflector Type Lamps,” IES LM-20-13. IES LM-20-13 is an industry accepted test standard that specifies photometric test methods for reflector lamps. The test procedures proposed in this SNOPR reference sections of IES LM-20-13 for performing electrical and photometric measurements of other incandescent lamps that are reflector lamps. IES LM-20-13 is readily available on IES's Web site at
DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps,” IES LM-45-15. IES LM-45-15 is an industry accepted test standard that
DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of Solid-State Lighting Products,” IES LM-79-08-DD. IES LM-79-08-DD is an industry accepted test standard that specifies electrical and photometric test methods for solid-state lighting products. The test procedures proposed in this SNOPR reference sections of IES LM-79-08-DD for performing electrical and photometric measurements of OLED lamps and non-integrated LED lamps. IES LM-79-08 is readily available on IES's Web site at
DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although comments are welcome on all aspects of this proposed rulemaking, DOE is particularly interested in comments on the following issues.
(1) DOE requests comment on the appropriateness of referencing IES LM-79-08 for the testing of non-integrated LED lamps. DOE also requests comment on the proposed requirement that manufacturers report the settings used for the testing of non-integrated LED lamps, specifically input voltage and current, and whether additional settings are needed to ensure consistent, repeatable results. DOE requests comment on whether the manufacturer-
(2) DOE requests comment on the industry standards and sections of the industry standards referenced in its proposed test methods.
The Secretary of Energy has approved publication of this proposed rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
For the reasons stated in the preamble, DOE proposes to amend parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317.
(b) * * *
(2) * * *
(i)
(ii)
(iii)
(b) * * *
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, the minimum initial efficacy in lumens per watt (lm/W), the lumen maintenance at 1,000 hours in percent (%), the lumen maintenance at 40 percent of rated life in percent (%), the rapid cycle stress test in number of units passed, and the lamp life in hours (h).
(a)
(1) The requirements of § 429.11 are applicable to general service lamps, and
(2) For general service incandescent lamps, use § 429.27(a);
(3) For compact fluorescent lamps, use § 429.35(a);
(4) For integrated LED lamps, use § 429.56(a);
(5) For other incandescent lamps, use § 429.27(a);
(6) For other fluorescent lamps, use § 429.35(a); and
(7) For OLED lamps and non-integrated LED lamps, use § 429.56(a).
(b)
(2) Values reported in certification reports are represented values;
(3) For general service incandescent lamps, use § 429.27(b);
(4) For compact fluorescent lamps, use § 429.35(b);
(5) For integrated LED lamps, use § 429.56(b); and
(6) For other incandescent lamps, for other fluorescent lamps, for OLED lamps and non-integrated LED lamps, pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, initial lumen output, input power, lamp efficacy, and power factor. For non-integrated LED lamps, the certification report must also include the input voltage and current used for testing.
(c)
(2) Round initial lumen output to three significant digits.
(3) Round lamp efficacy to the nearest tenth of a lumen per watt.
(4) Round power factor to the nearest hundredths place.
(5) Round standby mode power to the nearest tenth of a watt.
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
The additions read as follows:
(o) * * *
(3) IES LM-9-09 (“IES LM-9-09-DD”), IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps, approved January 31, 2009; IBR approved for appendix DD to subpart B, as follows:
(i) Section 4—Ambient and Physical Conditions;
(ii) Section 5—Electrical Conditions;
(iii) Section 6—Lamp Test Procedures; and
(iv) Section 7—Photometric Test Procedures: Section 7.5—Integrating Sphere Measurement.
(6) IES LM-20-13, IES Approved Method for Photometry of Reflector Type Lamps, approved February 4, 2013; IBR approved for appendix DD to subpart B, as follows:
(i) Section 4—Ambient and Physical Conditions;
(ii) Section 5—Electrical and Photometric Test Conditions;
(iii) Section 6—Lamp Test Procedures; and
(iv) Section 8—Total Flux Measurements by Integrating Sphere Method.
(8) IES LM-45-15, IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps, approved August 8, 2015; IBR approved for appendix DD to subpart B as follows:
(i) Section 4—Ambient and Physical Conditions;
(ii) Section 5—Electrical Conditions;
(iii) Section 6—Lamp Test Procedures; and
(iv) Section 7—Photometric Test Procedures: Section 7.1—Total Luminous Flux Measurements with an Integrating Sphere.
(13) IES LM-79-08 (“IES LM-79-08-DD”), IES Approved Method for the Electrical and Photometric Measurement of Solid-State Lighting Products, approved January 31, 2009; IBR approved for appendix DD to subpart B as follows:
(i) Section 1.3—Nomenclature and Definitions (except section 1.3[f]);
(ii) Section 2.0—Ambient Conditions;
(iii) Section 3.0—Power Supply Characteristics;
(iv) Section 5.0—Stabilization of SSL Product;
(v) Section 7.0—Electrical Settings;
(vi) Section 8.0—Electrical Instrumentation;
(vii) Section 9—Test Methods for Total Luminous Flux measurement: Section 9.1 Integrating Sphere with a Spectroradiometer (Sphere-spectroradiometer System); and
(viii) Section 9—Test Methods for Total Luminous Flux measurement: Section 9.2—Integrating Sphere with a Photometer Head (Sphere-photometer System).
(p) * * *
(6) IEC 62301, (“IEC 62301-DD”), Household electrical appliances—Measurement of standby power, (Edition 2.0, 2011-01); IBR approved for appendix DD to subpart B as follows:
(i) Section 5—Measurements.
(ff)
(2) For compact fluorescent lamps, measure lamp efficacy, lumen maintenance at 1,000 hours, lumen maintenance at 40 percent of lifetime, rapid cycle stress, time to failure, power factor, CRI, start time, and standby mode power in accordance with paragraph (y) of this section.
(3) For integrated LED lamps, measure lamp efficacy, power factor, and standby mode power in accordance with paragraph (ee) of this section.
(4) For other incandescent lamps, measure initial light output, input power, lamp efficacy, power factor, and standby mode power in accordance with appendix DD of this subpart.
(5) For other fluorescent lamps, measure initial light output, input power, lamp efficacy, power factor, and standby mode power in accordance with appendix DD of this subpart.
(6) For OLED and non-integrated LED lamps, measure initial light output, input power, lamp efficacy, power factor, and standby mode power in accordance with appendix DD of this subpart.
The testing for general service fluorescent lamps, general service lamps (with the exception of applicable lifetime testing), incandescent reflector lamps, and fluorescent lamp ballasts must be conducted by test laboratories accredited by an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA). A manufacturer's or importer's own laboratory, if accredited, may conduct the applicable testing.
On or after [
1.
2.
3. Active Mode Test Procedures
3.1. Take measurements at full light output.
3.2. Do not use a goniophotometer.
3.3. For OLED and non-integrated LED lamps, position a lamp in either the base-up and base-down orientation throughout testing. An equal number of lamps in the sample must be tested in the base-up and base-down orientations, except that, if the manufacturer restricts the position, test all of the units in the sample in the manufacturer-specified position.
3.4. Operate the lamp at the rated voltage throughout testing. For lamps with multiple rated voltages including 120 volts, operate the lamp at 120 volts. If a lamp is not rated for 120 volts, operate the lamp at the highest rated input voltage. For non-integrated LED lamps, operate the lamp at the manufacturer-declared input voltage and current.
3.5. Operate the lamp at the maximum input power. If multiple modes occur at the same maximum input power (such as
3.6. To measure initial lumen output, input power, input voltage, and input current use the test procedures in the table in this section.
3.7. Determine initial lamp efficacy by dividing the measured initial lumen output (lumens) by the measured initial input power (watts).
3.8. Determine power factor by dividing the measured initial input power (watts) by the product of the measured input voltage (volts) and measured input current (amps).
4. Standby Mode Test Procedure
4.1. Measure standby mode power only for lamps that are capable of standby mode operation.
4.2. Connect the lamp to the manufacturer-specified wireless control network (if applicable) and configure the lamp in standby mode by sending a signal to the lamp instructing it to have zero light output. Lamp must remain connected to the network throughout testing.
4.3. Operate the lamp at the rated voltage throughout testing. For lamps with multiple rated voltages including 120 volts, operate the lamp at 120 volts. If a lamp is not rated for 120 volts, operate the lamp at the highest rated input voltage.
4.4. Stabilize the lamp prior to measurement as specified in section 5 of IEC 62301-DD (incorporated by reference; see § 430.3).
4.5. Measure the standby mode power in watts as specified in section 5 of IEC 62301-DD (incorporated by reference; see § 430.3).
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2011-26-03, which applies to certain The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes. AD 2011-26-03 currently requires installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks. AD 2011-26-03 resulted from fuel system reviews conducted by the manufacturer. Since we issued AD 2011-26-03, we have received a report indicating that additional airplanes are affected by the identified unsafe condition. This proposed AD would add airplanes to the applicability. This AD would also add, for certain airplanes, detailed inspections of certain wire bundle clamps, certain Teflon sleeves, and certain fasteners; corrective actions if necessary; and installation of Teflon sleeves under certain wire bundle clamps. We are proposing this AD to prevent electrical arcing on the fuel tank boundary structure or inside the fuel tanks, which could result in a fire or explosion.
We must receive comments on this proposed AD by September 6, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet:
You may examine the AD docket on the Internet at
Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM 140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6438; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88”), Amendment 21-78. Subsequently, SFAR 88 was amended by: Amendment 21-82 (67 FR 57490, September 10, 2002; corrected at 67 FR 70809, November 26, 2002) and Amendment 21-83 (67 FR 72830, December 9, 2002; corrected at 68 FR 37735, June 25, 2003, to change “21-82” to “21-83”).
Among other actions, SFAR 88 requires certain type design (
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, combination of failures, and unacceptable (failure) experience. For all three failure criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
We have determined that the actions identified in this proposed AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
On December 5, 2011, we issued AD 2011-26-03, Amendment 39-16893 (76 FR 78138, December 16, 2011) (“AD 2011-26-03”), for certain The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes. AD 2011-26-03 requires installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks. AD 2011-26-03 resulted from fuel system reviews conducted by the manufacturer. We issued AD 2011-26-03 to prevent electrical arcing on the fuel tank boundary structure or inside the fuel tanks, which could result in a fire or explosion.
Since we issued AD 2011-26-03, we have received a report indicating that additional airplanes are affected by the identified unsafe condition.
We reviewed Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. The service information describes procedures for installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks; as well as detailed inspections of certain wire bundle clamps, certain Teflon sleeves, and certain fasteners; corrective actions if necessary; and installation of Teflon sleeves under certain wire bundle clamps. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all of the requirements of AD 2011-26-03. This proposed AD would also revise the applicability by adding Boeing Model 777-200LR and 777F series airplanes. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as described in “Differences Between this Proposed AD and the Service Information”. For information on the procedures and compliance times, see this service information at
The phrase “corrective actions” is used in this proposed AD. “Corrective actions” correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
Boeing has issued Alternative Method of Compliance (AMOC) Notice 777-57A0050 AMOC 02, dated February 15, 2016, to provide the correct group applicability for “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation,” Figure 3, and Figure 100 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. We have included these changes in paragraphs (k)(1), (k)(2), and (k)(3) of this AD.
We estimate that this proposed AD affects 182 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety,
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by September 6, 2016.
This AD replaces AD 2011-26-03, Amendment 39-16893 (76 FR 78138, December 16, 2011) (“AD 2011-26-03”).
This AD applies to The Boeing Company airplanes, certificated in any category, as identified in the applicable service information specified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD.
(1) For The Boeing Company Model 777-200, -200LR, -300, -300ER, and 777F airplanes: Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015.
(2) For The Boeing Company Model 777-200 and -300 airplanes: Boeing Alert Service Bulletin 777-57A0051, dated May 15, 2006.
(3) For The Boeing Company Model 777-200, -300, and -300ER airplanes: Boeing Alert Service Bulletin 777-57A0057, Revision 1, dated August 2, 2007.
(4) For The Boeing Company Model 777-200, -200LR, -300, and -300ER airplanes: Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent electrical arcing on the fuel tank boundary structure or inside the main and center fuel tanks, which could result in a fire or explosion.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2011-26-03, with revised service information. Within 60 months after January 20, 2011 (the effective date of AD 2010-24-12, Amendment 39-16531 (75 FR 78588, December 16, 2010) (“AD 2010-24-12”)), do the applicable actions specified in paragraph (g)(1), (g)(2), (g)(3), or (g)(4) of this AD, except as required by paragraph (k)(2) of this AD.
(1) For airplanes identified in Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009: Install Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009; or Revision 4, dated September 28, 2015. As of the effective date of this AD, only use Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, for accomplishing the actions required by this paragraph.
(2) For airplanes identified in Boeing Alert Service Bulletin 777-57A0051, dated May 15, 2006: Cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0051, dated May 15, 2006.
(3) For airplanes identified in Boeing Alert Service Bulletin 777-57A0057, Revision 1, dated August 2, 2007: Do a general visual inspection to determine if certain fasteners are cap sealed, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0057, Revision 1, dated August 2, 2007. Do all applicable corrective actions before further flight.
(4) For Model 777-200, -300, and -300ER airplanes identified in Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008: Cap seal the fasteners in the center fuel tanks that were not sealed during production, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008.
This paragraph restates the requirements of paragraph (i) of AD 2011-26-03, with no changes. For Model 777-200LR airplanes identified in Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008: Within 60 months after January 3, 2012 (the effective date of AD 2011-26-03), cap seal the fasteners in the center fuel tanks that were not sealed during production, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008.
For Group 1, Configurations 2 through 4 airplanes; Groups 2 through 4, Configurations 3 through 5 airplanes; Groups 5 through 43, Configuration 1 airplanes; and Groups 44 and 45 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Within 60 months after the effective date of this AD, do the applicable actions specified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD, except as required by paragraph (k)(2) of this AD.
(1) For Group 1, Configurations 2 through 4 airplanes; Groups 2 through 4, Configurations 3 through 5 airplanes; Groups 5 through 43, Configuration 1 airplanes; and Groups 44 and 45 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for installation of Teflon sleeves on certain wire bundle clamps, as applicable; a detailed inspection to determine the type of wire bundle clamp; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.
(2) For Group 1, Configurations 2 through 4 airplanes; and Groups 2 through 4, Configurations 3 through 5 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for correct installation of certain Teflon sleeves, as applicable; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.
(3) For Group 1, Configurations 2 through 4 airplanes; and Groups 2 through 4, Configurations 3 through 5 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for cap sealing of certain fasteners, as applicable; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.
For Group 1, Configurations 2 through 5 airplanes; Groups 2 through 4, Configurations 3 through 6 airplanes; and Groups 5 through 43, Configuration 2 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Within 60 months after the effective date of this AD, install Teflon sleeves under certain wire bundle clamps, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, except as required by paragraphs (k)(1), (k)(2), and (k)(3) of this AD.
(1) Where “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation” of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, specifies “Groups 5 through 43, Configuration 2,” for this AD, “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation” of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, applies to Groups 5 through 43.
(2) Where Figure 3 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, specifies “Groups 1 through 7, and 9 through 43,” for this AD, Figure 3 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, applies to Groups 1 through 43.
(3) Where Figure 100 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, specifies “Groups 5 through 43, Configuration 2,” for this AD, Figure 100 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, applies to Groups 5 through 43.
(1) This paragraph provides credit for the actions specified in paragraph (g)(1) of this AD, if those actions were performed before January 20, 2011 (the effective date of AD 2010-24-12), using Boeing Alert Service Bulletin 777-57A0050, dated January 26, 2006; or Revision 1, dated August 2, 2007; provided that the applicable additional work specified in Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009, is done within the compliance time specified in paragraph (g) of this AD. The additional work must be done in accordance with Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009.
(2) This paragraph provides credit for the actions specified in paragraph (g)(3) of this AD, if those actions were performed before January 20, 2011 (the effective date of AD 2010-24-12), using Boeing Alert Service Bulletin 777-57A0057, dated August 7, 2006.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (n)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously for AD 2011-26-03 are approved as AMOCs for the corresponding provisions of this AD.
(1) For more information about this AD, contact Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM 140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6438; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet:
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) is proposing to amend its regulations concerning recognition of
Written comments must be received on or before September 19, 2016.
Written comments may be submitted through
Dana Raffaelli, Staff Attorney, Benefits Law Group, Office of the General Counsel, (022D), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7699. (This is not a toll free number.)
This proposed rule would amend part 14 of title 38, Code of Federal Regulations, to provide for the recognition of tribal organizations that are established and funded by tribal governments so that representatives of the organizations may assist Native American veterans and their families in the preparation, presentation, and prosecution of their VA benefit claims. The purpose of this proposed rule is to address the needs of Native American populations who are geographically isolated from existing recognized Veterans Service Organizations (VSOs) or who may not be utilizing other recognized VSOs due to cultural barriers or lack of familiarity with those organizations. Native American veterans face challenges accessing representation in VA claims because many live in remote areas that are far from the nearest accredited representative. In addition, some Native American veterans may prefer to seek assistance from organizations that are associated with their tribal government, rather than using other organizations that are not as familiar to them. This proposed rule would help facilitate the VA recognition of tribal organizations that are established and funded by one or more tribal governments and whose primary purpose is to serve Native American veterans.
Pursuant to 38 U.S.C. 5902, VA recognizes organizations and accredits their representatives for the preparation, presentation, and prosecution of claims under laws administered by VA. VA's regulation regarding the recognition of such organizations is 38 CFR 14.628, which currently does not expressly allow for the recognition of tribal organizations. Under the current regulations, however, any organization, including an organization created by one or more tribal governments, may apply for recognition by VA as either: (1) A national organization, or (2) a regional or local organization. To be recognized as a national organization, the organization must meet the requirements of § 14.628(a) and (d). To be recognized as a regional or local organization, the organization must meet the requirements of § 14.628(c) and (d). VA also accredits State organizations. To be recognized as a State organization, the organization must meet the requirements of § 14.628(b) and (d). Under the current regulations, VA has received only a few inquiries from tribal governments expressing interest in pursuing any type of VA recognition other than the type of recognition granted to State organizations. Pursuant to 38 CFR 14.627 and 14.629, VA recognition of a State organization is limited to organizations established and funded by a State, possession, territory, or Commonwealth of the United States, and the District of Columbia. This proposed rule would allow tribal governments to establish and fund tribal organizations in a similar manner as the State governments have established and funded State organizations. Allowing organizations that are created and funded by tribal governments to be recognized as “tribal organizations” rather than as national, regional or local organizations would afford VA the opportunity to acknowledge and affirm the long-standing recognition by the Federal government of tribes' inherent sovereignty and right to self-government.
This proposed rule would amend 38 CFR 14.627 by adding a paragraph (r) that would provide that tribal government means the Federally recognized governing body of any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or Regional or Village Corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. This is consistent with the definition of Indian tribe in 38 CFR 39.2.
This proposed rule would amend current § 14.628(b) by redesignating it as paragraph (b)(1), “State organization,” and adding paragraph (b)(2), “Tribal organization.” VA would clarify that a
In order to ensure that all claimants for VA benefits receive responsible, qualified representation in the preparation, presentation, and
We recognize the varying sizes of tribal governments. We further recognize that, due to the size of certain smaller Indian tribes, a single tribal government may be unable to establish an organization that could demonstrate a substantial service commitment to veterans either by showing a sizable organizational membership or by showing performance of veterans' services to a sizable number of veterans. A single tribal government may also be unable to establish an organization that would be able to adequately fund the necessary services of a tribal organization that provides assistance with VA benefit claims. Therefore, VA would consider applications from a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. The approval of each tribal government would be necessary for VA to process the request for VA recognition. While VA is sensitive to the fact that some tribal governments may have difficulty meeting the substantial service commitment and funding requirements, VA must ensure that VA accredited organizations can provide long-term, competent representation. Therefore, VA would require that, if one of the supporting tribal governments withdraws from the tribal organization, the tribal organization must notify VA of the withdrawal and certify that the tribal organization continues to meet the recognition requirements in § 14.628(d) without the participation of that tribal government. We note that 25 U.S.C. 450b(l) recognizes the existence of tribal coalitions in the definition of tribal organization for the purpose of entering into contracts or grants for certain educational benefits. Additionally, in 38 CFR 39.2, VA has recognized the existence of a parallel concept for the purpose of applying for cemetery grants.
Based on our experience in applying § 14.628, we believe the proposed addition to the regulation would facilitate the recognition of Tribal organizations and would improve Native American veterans' access to accredited representatives. Once a tribal organization has been recognized by VA, the certifying official of the organization would be able to file for VA accreditation for the individuals that the organization wishes to become accredited as its representatives.
VA further recognizes that not all tribal governments may want to establish their own Tribal veterans organization and some may have already established working relationships with their respective State organizations to help address the needs of their Native American veteran population. We, therefore, propose to amend 38 CFR 14.629(a)(2) to allow for an employee of a tribal government that is not associated with a tribal organization, to become accredited as a representative of a State organization in a similar manner as a county employee,
Although tribal governments are not politically subordinate to State governments like county governments are, tribal governments often do have close, productive relationships with State governments through gaming compacts, cross-deputization, and other cooperative agreements. Therefore, we believe that the collaborative nature of the relationship between tribes and States supports the proposed concept of recognizing tribal veterans' service officers in a manner similar to county veterans' service officers. As stated above, we believe this additional path to become an accredited representative would further facilitate veterans obtaining representation across county, State, and tribal borders.
For consistency, the proposed rule would also amend 38 CFR 14.635 to extend office space opportunities already granted to certain employees of State organizations to employees of tribal organizations. The proposed rule would allow the Secretary to furnish office space and facilities, when available, to both State and tribal organization employees who are also accredited to national organizations for the purpose of assisting claimants in the preparation, presentation, and prosecution of claims for benefits.
We are also requesting from the Office of Management and Budget (OMB) approval for the provisions of § 14.628(d) that constitute a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Therefore, we would remove the current OMB control number parenthetical at the end of § 14.628 and add, in its place, a placeholder parenthetical.
Finally, we would make a technical amendment to § 14.629(a)(2) to correct
This proposed rule includes provisions constituting collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by OMB. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review.
OMB assigns control numbers to collections of information it approves. VA 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. Proposed § 14.628 contains a collection of information under the Paperwork Reduction Act of 1995. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing a collection of information or take such other action as is directed by OMB.
Comments on the collection of information contained in this proposed rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to the Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; email to
OMB is required to make a decision concerning the collections of information contained in this proposed rule between 30 and 60 days after publication of this document in the
The Department considers comments by the public on proposed collections of information in—
• Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections 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,
The collection of information contained in 38 CFR 14.628 is described immediately following this paragraph, under its respective title.
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The organization must also demonstrate a substantial service commitment to veterans either by showing a sizable organizational membership or by showing performance of veterans' services to a sizable number of veterans. In establishing that it meets this requirement, an organization requesting recognition shall submit: The number of members and number of posts, chapters, or offices and their addresses; a copy of the articles of incorporation, constitution, charter, and bylaws of the organization, as appropriate; a description of the services performed or to be performed in connection with programs administered by VA, with an approximation of the number of veterans, survivors, and dependents served or to be served by the organization in each type of service designated; and a description of the type of services, if any, performed in connection with other Federal and State programs which are designed to assist former Armed Forces personnel and their dependents, with an approximation of the number of veterans, survivors, and dependents served by the organization under each program designated.
An organization requesting recognition must commit a significant portion of its assets to veterans' services and have adequate funding to properly perform those services. In establishing that it meets this requirement, an organization requesting recognition shall submit: A copy of the last financial statement of the organization indicating the amount of funds allocated for conducting particular veterans' services (VA may, in cases where it deems necessary, require an audited financial statement); and a statement indicating that use of the organization's funding is not subject to limitations imposed under any Federal grant or law which would prevent it from representing claimants before VA.
An organization requesting recognition must maintain a policy and capability of providing complete claims service to each claimant requesting representation or give written notice of any limitation in its claims service with advice concerning the availability of alternative sources of claims service. In establishing that it meets this requirement, an organization requesting recognition shall submit evidence of its capability to represent claimants before VA regional offices and before the Board of Veterans' Appeals. If an organization does not intend to represent claimants before the Board of Veterans' Appeals, the organization shall submit evidence of an association or agreement with a recognized service organization for the purpose of representation before the Board of Veterans' Appeals, or the proposed method of informing claimants of the limitations in service that can be provided, with advice concerning the availability of alternative sources of claims service. If an organization does not intend to represent each claimant requesting assistance, the organization shall submit a statement of its policy concerning the selection of claimants and the proposed method of informing claimants of this policy, with advice concerning the availability of alternative sources of claims service.
An organization requesting recognition must take affirmative action, including training and monitoring of accredited representatives, to ensure proper handling of claims. In establishing that it meets this requirement, an organization requesting recognition shall submit: A statement of the skills, training, and other
In addition, the organization requesting recognition shall supply: A statement that neither the organization nor its accredited representatives will charge or accept a fee or gratuity for service to a claimant and that the organization will not represent to the public that VA recognition of the organization is for any purpose other than claimant representation; and the names, titles, and addresses of officers and the official(s) authorized to certify representatives.
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The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. It does not require any action on the part of any entity but merely provides a new opportunity for tribal organizations to become recognized by VA for the purpose of assisting VA claimants in the preparation, presentation, and prosecution of claims for VA benefits. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
Executive Order 13175 provides that Federal agencies may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs on tribal governments, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments or the Federal agency consults with tribal officials early in the process of developing the proposed regulation, develops and publishes in the
On March 3 and 10, 2016, respectively, VA issued letters to tribal leaders as well as a
One commenter wrote that, currently, their tribal representatives are being accredited through their State as well as other national organizations and was curious as to the “road blocks” other tribal organizations were facing. This commenter did not provide any suggestions, and therefore, no change to this rulemaking is warranted.
Several commenters noted that currently Native American veterans face many roadblocks to obtaining representation. One commenter noted that geography, economic, and culture barriers prevent Native American veterans from utilizing currently available representation. These comments were offered in support of the proposed rule, and therefore, no change to this rulemaking is warranted.
A few commenters misinterpreted the language provided in the consultation and notice as meaning that VA intended to propose that VA's recognition of a tribal organization would be tied to VA's recognition of the corresponding State organization. One commenter stated that VA should recognize a tribal organization as “equal to” a State organization. VA is not tying VA recognition of a tribal organization to a State and is choosing not to make value judgements as to the importance of the recognition granted to State organizations and Tribal organizations. Recognition of a tribal organization would stand on its own. VA has chosen to use the term
A few commenters misinterpreted the language provided in the consultation and notice as limiting recognition of a tribal veterans' service officer through a State. One commenter asked for clarification on what type of employees would be eligible to become accredited by VA. The commenter stated that employees of a tribal nation as well as a tribal organization should be eligible. We agree, and the proposed rule would allow for both avenues to attain VA accreditation depending on the tribal government's size, relationships with other tribal governments, relationships with States, and the needs of Native American veterans in their area. After a tribal organization becomes recognized by VA, that organization would be able to request to have its own representatives accredited under 38 CFR 14.629. In addition to proposing to recognize tribal organizations and accredit their representatives, VA would provide an additional means by which VA may recognize an employee of a tribal government as a tribal veterans' service officer through a State organization. This accreditation would be akin to accreditation given to county veterans' service officers through State organizations and is only meant to provide an additional path to VA accreditation. We propose that the requirements for a tribal veterans' service officer to become accredited as a representative through a State organization be the same as the requirements for a county veterans' service officer. Therefore, VA makes no changes based on these comments.
One commenter asked what happens to the accreditation of a tribal organization if the Director is relinquished. It seems this comment stems from the misinterpretation previously discussed regarding the accreditation of a tribal organization and the corresponding State organization. The commenter also asked what
Several commenters also expressed concern over the requirements for recognition in § 14.628(d). Specifically, the commenters expressed concern that many tribal organizations may not be able to satisfy the primary purpose, size, funding, and training requirements, to include providing the required, supporting documentation. One commenter suggested that VA provide the funding for tribes “to engage in this work.” Another commenter suggested including Indian Health Services for funding assistance. A few commenters expressed concern about the requirement that the organization must maintain a policy of either providing complete claims representation or provide “written notice of any limitation in its claims service with advice concerning the availability of alternative sources of claims service.” 38 CFR 14.628(d)(1)(iv). One commenter seemed to believe VA was questioning the level of competence of tribal representatives. VA must ensure that VA accredited organizations can provide long-term, competent representation and has found that the § 14.628(d) requirements are protective of that mission. These requirements apply to all organizations seeking VA recognition. Exempting tribal organizations from meeting the § 14.628(d) requirements would not be consistent with the purpose of VA recognition to ensure that veterans are receiving qualified, competent representation on their VA benefit claims. As previously discussed, VA has provided additional means to achieve VA recognition or accreditation for those tribal governments that may have difficulty establishing a tribal organization capable of meeting the § 14.628(d) requirements, to include the ability for one or more tribal governments to establish and fund a tribal organization and the ability of an employee of a tribal government to become accredited as a tribal veterans' service officer through a recognized State organization. Therefore, VA makes no changes based on these comments.
One commenter suggested that VA grant accreditation to tribes through a Memorandum of Understanding and included their tribe's Memorandum of Understanding with their State. The commenter also questioned the role of VA in the accreditation and monitoring process. The laws governing VA accreditation are set out at 38 U.S.C. 5902 and 5904 and 38 CFR 14.626-14.637. These laws apply to all organizations, agents, and attorneys seeking VA accreditation. Pursuant to § 14.628, the organization requesting VA accreditation must certify to VA that the organization meets the § 14.628(d) requirements for recognition. Therefore, a Memorandum of Understanding between VA and a tribe is not sufficient for applying for VA accreditation. Furthermore, VA does monitor its accredited organizations, agents, and attorneys and handles disciplinary matters as they arise. Therefore, VA makes no changes based on this comment.
One commenter suggested that VA engage in additional consultation with Tribes that would be “interested in becoming recognized veterans['] service organizations, but are unable to meet the requirements.” In the proposed rule, VA offers alternative avenues for VA recognition and accreditation for tribal governments that may not be capable of establishing an organization that can meet the VA recognition requirements in the proposed rule on their own. VA further welcomes additional comments as to the suitability of those alternative avenues through comments on this proposed rule. VA declines to make any changes based on this comment.
One commenter also recommended that “VA enter into Memorandums of Understanding with [F]ederally-recognized tribes and tribal organizations for [v]eterans' [s]ervice [o]fficer training and service reimbursement, on individual bases.” Another commenter objected to the fact that there was “no mention of funding to train and maintain such a position.” Section 5902, of title 38, United State Code, which is the law that authorizes VA to recognize organizations for the purpose of providing assistance on VA benefit claims, does not provide for the funding of such organizations to train and maintain representatives. Pursuant to § 14.628(d)(iii)(B), organizations are not precluded from seeking and receiving other sources of State and Federal grant funding so long as the organization's funding is not subject to limitations imposed under any Federal grant or law which would prevent it from representing claimants before VA. Therefore, VA declines to make any changes based on these comments.
One commenter wrote that VA “. . . should include [F]ederally-recognized tribes, not just tribal organizations funded by tribal governments, as an entity from which applications will be considered to be recognized for . . .” VA accreditation. Another commenter suggested adding “[F]ederally recognized tribes” or “[F]ederally recognized tribal governments” as part of the definition for tribal organizations. Another commenter suggested adding tribal communities. For the purposes of the regulations pertaining to the representation of VA claimants, VA proposes to define a tribal government to mean “the Federally recognized governing body of any Indian tribe, band, nation, or other organized group or community . . .”. VA finds this definition to be inclusive of the comments, and therefore, no change is warranted.
One commenter suggested a legislative amendment to the definition of State in 38 U.S.C. 101(20) to include “[F]ederally recognized tribal governments.” Amending the statutory language is something that only Congress can accomplish. Since VA is defining the term “tribal government” in regulation and providing an avenue for VA recognition of a tribal organization separate from a State organization, VA does not find such a legislative amendment necessary. Therefore, no change is warranted based on this comment.
Several commenters wrote that “[s]pecial attention must be paid to what specifically is meant by a `[t]ribal [o]rganization' ” and that VA should offer a clear definition of the term. The commenters did not offer any suggestions for such definition. As previously discussed, VA is defining this term for the purposes of this rulemaking. Therefore, VA does not make any changes based on this comment.
Several commenters asked VA to clarify whether tribal governments, including veterans departments within these governments, would be eligible for VA recognition. A Department of Veterans Affairs or a Veterans Affairs office that is established and funded by a tribal government would be included in the definition of tribal organization. Therefore, no change to this rulemaking is warranted based on these comments.
One commenter asked that VA provide recognition for urban Indian organizations. The comment is unclear on whether such an organization would be able to apply for VA recognition as a tribal organization. VA declines to add an additional organization category at this time. In addition to the proposed amendments discussed in this rulemaking, an organization may still utilize other avenues to apply for VA recognition such as requesting VA
Further, there are several ways that individuals, including tribal members, tribal government employees, and others who work within and serve tribal or Native American communities, may be accredited by VA to represent claimants. An individual may apply for accreditation as a representative through an existing VA-recognized organization under standards set forth in § 14.629(a). Alternatively, an individual may also seek accreditation in an individual capacity as either an agent or an attorney under the standards set forth in § 14.629(b). Therefore, VA declines to make any changes based on this comment.
A couple of commenters submitted statements certifying that their organization would meet the requirements for accreditation for a tribal organization. Applications for accreditation are outside the scope of this rulemaking. Therefore, no change is warranted based on these comments.
One commenter asked whether accredited tribal representatives would be granted access to software programs containing a veteran's claims file information and whether that access would be on tribal grounds. This issue is outside the scope of this rulemaking. Therefore, no change is warranted based on this comment.
One commenter expressed support for VA recognizing tribal organizations in an equal manner as VA recognizes State organizations but suggested that VA authorize a field office close to tribal administration locations and fund one or two veterans service officer positions. The tribal consultation and this proposed rulemaking are limited in scope to recognition for purposes of VA claims representation. The commenter's suggestion of adding a field office is beyond the scope, and therefore, VA declines to make any changes based on this comment. VA also declines to make any changes to the commenter's suggestion of funding job positions for veterans service officers. Part of the § 14.628(d) requirements is that an organization seeking accreditation must commit a significant portion of its assets to veterans' services and have adequate funding to properly perform those services. 38 CFR 14.628(d)(1)(iii).
A few commenters expressed concern that the proposed rulemaking is limiting VA recognition for the preparation, presentation, and prosecution of claims for VA benefits. One commenter seemed to think VA is depriving veterans from other title 38 benefits. The commenters did not specify what other accreditation they are seeking. As previously discussed, 38 CFR part 14 is limited in jurisdiction to recognizing organizations and accrediting individuals to assist in the preparation, presentation, and prosecution of VA benefit claims. Pursuant to section 5902, VA accreditation may not be granted for any other purpose. This rulemaking in no way deprives any veteran of any title 38 benefits. Therefore, no change is warranted based on these comments.
One commenter suggested that office space opportunities should be available to tribal governments and organizations in the same manner as they are available to State organizations. As previously discussed, this proposed rule would, under § 14.635, allow the Secretary to furnish office space and facilities, when available, to both State and tribal organization employees who are also accredited to national organizations for the purpose of assisting claimants in the preparation, presentation, and prosecution of claims for benefits. VA would be furnishing office space to tribal organizations in the same manner as it furnishes such space to State organizations. Therefore, no change is warranted based on this comment.
One commenter noted that VA should allow a tribal government employee to become accredited through an accredited body of their choice. VA in no way is limiting how a particular individual may apply to become an accredited VA representative. As previously discussed, VA is merely providing additional paths to VA accreditation than currently exist. Therefore, VA declines to make any changes to this rulemaking based on this comment.
Several commenters suggested further outreach and collaboration. One commenter suggested that VA form a tribal workgroup to allow representatives from tribal organizations to collaborate on implementing the new program. One commenter provided VA with their tribal consultation policy. Other commenters suggested that VA engage in additional consultation with experts in Indian law and hold an all-tribes call to gather additional input for this rulemaking. VA appreciates this information. As previously noted, VA extended the comment period for an additional 15 days to ensure that all interested parties had an appropriate time to provide input. Therefore, VA finds that it has complied with the requirements of Executive Order 13175. VA notes that an additional 60-day comment period is provided for this proposed rule and invites any additional comment to this rulemaking to be provided during that time.
One commenter asked for the projected implementation date of this rulemaking. VA will publish a final rule to this proposed rule which will contain the effective date of the rulemaking.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by OMB, unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations or recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
There are no Catalog of Federal Domestic Assistance programs numbers and titles associated with this proposed rule.
The Secretary of Veterans Affairs, or designee, approved this document and authorized Gina S. Farrisee, Deputy Chief of Staff, to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on July 14, 2016 for publication.
Administrative practice and procedure, Claims, Courts, Foreign relations, Government employees, Lawyers, Legal services, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Surety bonds, Trusts and trustees, Veterans.
For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 14 as follows:
5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14, unless otherwise noted.
(r)
The addition reads as follows:
(b)(1)
(2)
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the State Implementation Plan (SIP) submission, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on January 22, 2013, for inclusion into the Florida SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO
Written comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2014-0507 at
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via electronic mail at
On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO
In this action, EPA is proposing to approve Florida's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2).”
EPA is acting upon the SIP submission from Florida that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore
EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.
Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (
As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM
For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes,
With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.
EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
Below is a discussion of the Florida submission organized by each of the sub-elements found in sections 110(a)(1) and (2).
1. 110(a)(2)(A)
EPA has made the preliminary determination that the provisions contained in these chapters satisfy section 110(a)(2)(A) for the 2010 1-hour NO
In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during start up, shut down, and malfunction (SSM) of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.
Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B)
3. 110(a)(2)(C)
EPA has made the preliminary determination that Florida's SIP is adequate for program enforcement of control measures and regulation of minor sources and modifications related to the 2010 1-hour NO
4. 110(a)(2)(D)(i)(I) and (II)
5. 110(a)(2)(D)(ii):
6. 110(a)(2)(E)
In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), FDEP's infrastructure submission demonstrates that FDEP is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, and fee schedules for the review of plans, and other planning needs. Section 403.061(2), Florida Statutes, authorizes FDEP to “[h]ire only such employees as may be necessary to effectuate the responsibilities of the department.” Section 403.061(4), Florida Statutes, authorizes FDEP to “[s]ecure necessary scientific, technical, research, administrative, and operational services by interagency agreement, by contract, or otherwise.” Section 403.061(35), Florida Statutes, authorizes FDEP to exercise the duties, powers, and responsibilities required of the state under the federal CAA. Section 403.182, Florida Statutes, authorizes FDEP to approve local pollution control programs, and provides for the State air pollution control program administered by FDEP to supersede a local program if FDEP determines that an approved local program is inadequate and the locality fails to take the necessary corrective actions. Section 320.03(6), Florida Statutes, authorizes FDEP to establish an Air Pollution Control Trust Fund and use a $1 fee on every motor vehicle license registration sold in the State for air pollution control purposes. As evidence of the adequacy of FDEP's resources, EPA submitted a letter to Florida on April 19, 2016, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to Florida can be accessed at
Section 110(a)(2)(E)(ii) requires that the state comply with section 128 of the CAA. Section 128 requires that the SIP provide: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed.
For purposes of section 128(a)(1), Florida has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by an appointed Secretary. Appeals of final administrative orders and permits are available only through the judicial appellate process described at Florida Statute 120.68, F.S.,
Regarding section 128(a)(2), on July 30, 2012, EPA approved Florida statutes into the SIP to comply with section 128 respecting state boards.
Therefore, EPA is proposing to approve Florida's infrastructure SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
7. 110(a)(2)(F)
The following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(13) authorizes FDEP to “[r]equire persons engaged in operations which may result in pollution to file reports which may contain . . . any other such information as the department shall prescribe . . .”. Section 403.8055 authorizes FDEP to “[a]dopt rules substantively identical to regulations adopted in the
Section 90.401, Florida Statutes, defines relevant evidence as evidence tending to prove or disprove a material fact. Section 90.402, Florida Statutes, states that all relevant evidence is admissible except as provided by law. EPA is unaware of any provision preventing the use of credible evidence in the Florida SIP.
Additionally, Florida is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Florida made its latest update to the NEI on November 5, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site
8. 110(a)(2)(G)
9. 110(a)(2)(H)
10. 110(a)(2)(J)
11. 110(a)(2)(K)
12. 110(a)(2)(L)
Funding for review of PSD and NNSR permits comes from a processing fee, submitted by permit applicants, required by paragraph 403.087(6)(a) of the Florida Statute.
These regulations demonstrate that Florida has the authority to provide FDEP ensures this is sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. Additionally, Florida has a fully approved title V operating permit program at Chapter 62-213.300 F.A.C.
13. 110(a)(2)(M)
With the exception of the elements related to the ambient air quality monitoring and data system of section 110(a)(2)(B), the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J), and the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of prongs 1 and 2 of section 110(a)(2)(D)(i), EPA is proposing to approve Florida's January 22, 2013, SIP submission to incorporate provisions into the Florida SIP to address infrastructure requirements for the 2010 1-hour NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
Whenever a new or revised National Ambient Air Quality Standard (NAAQS) is promulgated, states must submit a plan for the implementation, maintenance and enforcement of such standard, commonly referred to as infrastructure requirements. The Environmental Protection Agency (EPA) is proposing to approve the May 12, 2015 Alaska State Implementation Plan (SIP) submission as meeting the infrastructure requirements for the 2010 nitrogen dioxide (NO
Comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2016-0133, at
Kristin Hall at (206) 553-6357 or
Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.
On January 22, 2010, the EPA established a primary NO
On May 12, 2015, the Alaska Department of Environmental Conservation (ADEC) made a submission for purposes of CAA sections 110(a)(1) and (2) for the 2010 NO
CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised standard is promulgated. CAA section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. These requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to implement, maintain and enforce the NAAQS. The requirements, with their corresponding CAA subsection, are listed below:
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C): Program for enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated nonattainment and applicable requirements of part D.
• 110(a)(2)(J): Consultation with government officials; public notification; and Prevention of Significant Deterioration (PSD) and visibility protection.
• 110(a)(2)(K): Air quality modeling/data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
The EPA's guidance document clarified that two elements identified in CAA section 110(a)(2) are not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather, are due at the time the nonattainment area plan requirements are due, pursuant to CAA section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment new source review (NSR), nor does it address CAA section 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not triggered by a new or revised NAAQS, because the visibility requirements in part C, title I of the CAA are not changed by a new or revised NAAQS.
The EPA is acting upon the May 12, 2015, submission from Alaska that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO
The EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by the EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
The following examples of ambiguities illustrate the need for the EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while the EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements.
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether the EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, the EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, the EPA can elect to act on such submissions either individually or in a larger combined action.
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, the EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.
The EPA notes that interpretation of section 110(a)(2) is also necessary when the EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, the EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures, and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment, and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), the EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular
Historically, the EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders, and heads of executive agencies with similar powers. Thus, the EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains the EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (
As another example, the EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (a)(2)(D)(i)(II), and (a)(2)(J) focuses upon the structural PSD program requirements contained in part C and the EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under the EPA's regulations at 40 CFR 51.166, but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM
For other section 110(a)(2) elements, however, the EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes,
With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and the EPA's policies addressing such excess emissions (“SSM”);
The EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. The EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1), and the list of elements in 110(a)(2), as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and the EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when the EPA evaluates adequacy of the infrastructure SIP submission. The EPA believes that a better approach is for states and the EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.
For example, the EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, the EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a “SIP call” whenever the EPA determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA.
• 18 AAC 50.010: Ambient Air Quality Standards.
• 18 AAC 50.015: Air Quality Designations, Classifications, and Control Regions.
• 18 AAC 50.040: Federal Standards Adopted by Reference.
• 18 AAC 50.055: Industrial Processes and Fuel Burning Equipment.
• 18 AAC 50.060: Pulp Mills.
• 18 AAC 50.260: Guidelines for Best Available Retrofit Technology Under the Regional Haze Rule.
• 18 AAC 50.302: Construction Permits.
• 18 AAC 50.306: Prevention of Significant Deterioration Permits.
• 18 AAC 50.345: Construction and Operating Permits: Standard Permit Conditions.
• 18 AAC 50.508: Minor Permits Requested by the Owner or Operator.
• 18 AAC 50.540: Minor Permit Application.
• 18 AAC 50.542: Minor Permit Review and Issuance.
• 18 AAC Chapter 53 Fuel Requirements for Motor Vehicles.
Alaska generally regulates emissions of NO
Alaska's major NSR program for attainment and unclassifiable areas
With respect to Alaska's minor NSR permitting program, we have determined that the program regulates minor sources of NO
In this action, we are not proposing to approve or disapprove any existing Alaska provisions with respect to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. The EPA believes that a number of states may have SSM provisions that are contrary to the CAA and existing EPA guidance and the EPA is addressing such state regulations in a separate action.
In addition, we are not proposing to approve or disapprove any existing Alaska rules with respect to director's discretion or variance provisions. The EPA believes that a number of states may have such provisions that are contrary to the CAA and existing EPA guidance (
CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for the establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request.
The submission references ADEC's revised
The submission also references 18 AAC 50.035
CAA section 110(a)(2)(C) requires states to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources, including a program to meet PSD and nonattainment NSR requirements.
• 18 AAC 50.020: Baseline Dates and Maximum Allowable Increases.
• 18 AAC 50.035: Documents, Procedures and Methods Adopted by Reference.
• 18 AAC 50.040: Federal Standards Adopted by Reference.
• 18 AAC 50.045: Prohibitions.
• 18 AAC 50.110: Air Pollution Prohibited.
• 18 AAC 50.215: Ambient Air Quality Analysis Methods.
• 18 AAC 50.302: Construction Permits.
• 18 AAC 50.306: Prevention of Significant Deterioration Permits.
• 18 AAC 50.345: Construction and Operating Permits: Standard Permit Conditions.
• 18 AAC 50.502: Minor Permits for Air Quality Protection.
• 18 AAC 50.508: Minor Permits Requested by the Owner or Operator.
The submission states that a violation of the prohibitions in the regulations above, or any permit condition, can result in civil actions (AS 46.03.760
To generally meet the requirements of CAA section 110(a)(2)(C) with respect to the regulation of construction of new or modified stationary sources, states are required to have PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2010 NO
The EPA most recently approved revisions to Alaska's PSD program on May 19, 2016 (81 FR 31511). Alaska's SIP-approved PSD program incorporates by reference certain Federal PSD program requirements at 40 CFR 52.21. In some cases, ADEC adopted provisions of 40 CFR 51.166 rather than the comparable provisions of 40 CFR 52.21 because 40 CFR 51.166 was a better fit for a SIP-approved PSD program. The Alaska PSD program incorporates by reference Federal PSD requirements at 40 CFR 52.21 and 40 CFR 51.166 revised as of December 9, 2013.
With respect to CAA section 110(a)(2)(C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the state has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of CAA section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the state has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Alaska has shown that it has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gas (GHG) emissions. As discussed below, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C), (D)(i)(II) and (J) with respect to PSD.
On January 4, 2013, the U.S. Court of Appeals in the District of Columbia, in
Accordingly, our proposed approval of elements 110(a)(2)(C), (D)(i)(II) and (J) with respect to the PSD requirements does not conflict with the Court's opinion. The EPA interprets the CAA section 110(a)(1) and (2) infrastructure submissions due three years after adoption or revision of a NAAQS to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which are due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as ten years following designations for some elements.
In addition, on June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.
In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply the EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, the EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (
The EPA recently revised federal PSD rules in light of the Supreme Court decision (May 7, 2015, 80 FR 26183). In addition, we anticipate that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. We do not expect that all states have revised their existing PSD program regulations yet, however, we are evaluating submitted PSD program revision to ensure that the state's program correctly addresses GHGs, consistent with the Court's decision.
At present, the EPA has determined the Alaska SIP is sufficient to satisfy CAA section 110(a)(2)(C), (a)(2)(D)(i)(II) and (a)(2)(J) with respect to GHGs because the PSD permitting program previously-approved by the EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT.
The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that the EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect our proposed approval of the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C), (a)(2)(D)(i)(II) and (a)(2)(J) as those elements relate to a comprehensive PSD program.
Turning to the minor NSR requirement, we have determined that
CAA section 110(a)(2)(D)(i) requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance of the NAAQS in another state (CAA section 110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality, or from interfering with measures required to protect visibility (
We note that Alaska's May 12, 2015, submission does not address the requirements of 110(a)(2)(D)(i)(I) for the 2010 NO
To address whether emissions from sources in Alaska interfere with any other state's required measures to prevent significant deterioration of air quality, the submissions referenced the Alaska Federally-approved PSD program. As discussed above, Alaska's SIP-approved PSD program last revised on May 19, 2016, currently incorporates by reference Federal PSD requirements as of December 9, 2013 (81 FR 31511). We are therefore proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) with respect to PSD (prong 3) for the 2010 NO
To address whether emissions from sources in Alaska interfere with any other state's required measures to protect visibility, the submission references the Alaska Regional Haze SIP, which was submitted to the EPA on March 29, 2011. The Alaska Regional Haze SIP addresses visibility impacts across states within the region. On February 14, 2013, the EPA approved the Alaska Regional Haze SIP, including the requirements for best available retrofit technology (78 FR 10546).
The EPA believes, as noted in the 2013 guidance, that with respect to the CAA section 110(a)(2)(D)(i)(II) visibility sub-element, where a state's regional haze SIP has been approved as meeting all current obligations, a state may rely upon those provisions in support of its demonstration that it satisfies the requirements of CAA section 110(a)(2)(D)(i)(II) as it relates to visibility. Because the Alaska Regional Haze SIP was found to meet Federal requirements, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2010 NO
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). Specifically, CAA section 126(a) requires new or modified major sources to notify neighboring states of potential impacts from the source.
CAA section 110(a)(2)(E) requires each state to provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of Federal or state law from carrying out the SIP or portion thereof), (ii) requirements that the state comply with the requirements respecting state boards under CAA section 128 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of such SIP provision.
With respect to CAA section 110(a)(2)(E)(ii), the submission states that Alaska's regulations on conflict of interest are found in Title 2
With respect to CAA section 110(a)(2)(E)(iii) and assurances that the State has responsibility for ensuring adequate implementation of the plan where the State has relied on local or
The submission also states that ADEC provides technical assistance and regulatory oversight to the Municipality of Anchorage (MOA), Fairbanks North Star Borough (FNSB) and other local jurisdictions to ensure that the State Air Quality Control Plan and SIP objectives are satisfactorily carried out. ADEC has a Memorandum of Understanding with the MOA and FNSB that allows them to operate air quality control programs in their respective jurisdictions. The South Central Clean Air Authority has been established to aid the MOA and the Matanuska-Susitna Borough in pursuing joint efforts to control emissions and improve air quality in the air-shed common to the two jurisdictions. In addition, ADEC indicates the department works closely with local agencies on nonattainment plans.
CAA section 110(a)(2)(F) requires (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to the CAA, which reports shall be available at reasonable times for public inspection.
The submission refers to the following statutory and regulatory provisions which provide authority and requirements for source emissions monitoring, reporting, and correlation with emission limits or standards:
• AS 46.14.140: Emission control permit program regulations.
• AS 46.14.180: Monitoring.
• 18 AAC 50.010: Ambient Air Quality Standards.
• 18 AAC 50.030: State Air Quality Control Plan.
• 18 AAC 50.035: Documents, Procedures, and Methods Adopted by Reference.
• 18 AAC 50.040: Federal Standards Adopted by Reference.
• 18 AAC 50.200: Information Requests.
• 18 AAC 50.201: Ambient Air Quality Investigation.
• 18 AAC 50.220: Enforceable Test Methods.
• 18 AAC 50.306: Prevention of Significant Deterioration Permits.
• 18 AAC 50.544: Minor Permits: Content.
Additionally, states are required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site
CAA section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs.
Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2010 NO
CAA section 110(a)(2)(H) requires that SIPs provide for revision of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii), except as provided in paragraph 110(a)(3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under the CAA.
CAA section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers with respect to NAAQS implementation requirements pursuant to section 121. CAA section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Lastly, CAA section 110(a)(2)(J) requires states to meet applicable requirements of part C, title I of the CAA related to prevention of significant deterioration and visibility protection.
ADEC routinely coordinates with local governments, states, Federal land managers and other stakeholders on air quality issues including transportation conformity and regional haze, and provides notice to appropriate agencies related to permitting actions. Alaska regularly participates in regional planning processes including the Western Regional Air Partnership, which is a voluntary partnership of states, tribes, Federal land managers, local air agencies and the EPA, whose purpose is to understand current and evolving regional air quality issues in the West. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for consultation with government officials for the 2010 NO
Section 110(a)(2)(J) also requires the public be notified if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. ADEC is a partner in the EPA's AIRNOW and Enviroflash Air Quality Alert programs, which provide air quality information to the public for five major air pollutants regulated by the CAA: Ground-level ozone, particulate matter, carbon monoxide, SO
Turning to the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C) with respect to permitting. The EPA most recently approved revisions to Alaska's PSD program on May 19, 2016 (81 FR 31511). We are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for PSD for the 2010 NO
With respect to the applicable requirements for visibility protection, the EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new applicable requirement related to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective. Based on the analysis above, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2010 NO
CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.
Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(K) for the 2010 NO
CAA section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit.
In addition, Alaska regulations at 18 AAC 50.306(d)(2) and 18 AAC 50.311(d)(2) require fees for purposes of major new source permitting as specified in 18 AAC 50.400 through 18 AAC 50.499. Therefore, we are proposing to conclude that Alaska has satisfied the requirements of CAA section 110(a)(2)(L) for the 2010 NO
CAA section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.
We are proposing to approve the Alaska SIP as meeting the following CAA section 110(a)(2) infrastructure elements for the 2010 NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed 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 proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 it does not involve technical standards; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a second 10-year carbon monoxide (CO) limited maintenance plan (LMP) for the Medford area, submitted by the Oregon Department of Environmental Quality (ODEQ) on December 11, 2015, along with a supplementary submittal on December 30, 2015, as a revision to its State Implementation Plan (SIP). In accordance with the requirements of the Clean Air Act (CAA), the EPA is approving this SIP revision because it demonstrates that the Medford area will continue to meet the CO National Ambient Air Quality Standards (NAAQS) for a second 10-year period beyond redesignation, through 2025.
Comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2015-0854 at
John Chi, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, 1200 6th Avenue, Seattle, WA 98101; telephone number: 206-553-1185; email address:
For further information, please see the direct final action, of the same title, which is located in the Rules and Regulations section of this
If the EPA receives adverse comments, the EPA will withdraw the direct final rule and it will not take effect. The EPA will address all public comments in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of the rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), Division of Air Quality (NCDAQ) on August 23, 2013, for inclusion into the North Carolina SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO
Written comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0362 at
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via telephone at (404) 562-8726 or via electronic mail at
On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO
This action is proposing to approve North Carolina's infrastructure submission for the applicable requirements of the 2010 1-hour NO
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the
EPA is acting upon the SIP submission from North Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.
EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.
Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on
As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 fine particulate matter (PM
For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, among other things, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (
With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.
EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
North Carolina's infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A):
In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.
Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B)
Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, and includes the annual ambient monitoring network design plan and a certified evaluation of the state's ambient monitors and auxiliary support equipment.
NCGS 143-215.107(a)(2), EPA regulations, along with North Carolina's Ambient Air Monitoring Network Plan, provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. EPA has made the preliminary determination that North Carolina's SIP and practices are adequate for the ambient air quality monitoring and data system requirements related to the 2010 1-hour NO
3. 110(a)(2)(C)
In this action, EPA is proposing to approve North Carolina's infrastructure SIP for the 2010 1-hour NO
EPA has made the preliminary determination that North Carolina's SIP is adequate for enforcement of control measures and regulation of minor sources and construction or modifications related to the 2010 1-hour NO
4. 110(a)(2)(D)(i)
5. 110(a)(2)(D)(ii)
6. 110(a)(2)(E)
To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), North Carolina's infrastructure SIP submission cites several regulations. Rule 15A NCAC 2Q. 0200,
As further evidence of the adequacy of NCDAQ's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to North Carolina on April 19, 2016, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to North Carolina can be accessed at
7. 110(a)(2)(F)
NC DAQ uses these data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with emission regulations and additional EPA requirements. North Carolina meets these requirements through 15A NCAC 2D .0604
Stationary sources are required to submit periodic emissions reports to the State by Rule 15A NCAC 2Q .0207 “Annual Emissions Reporting.” North Carolina is also required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the AERR on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. North Carolina made its latest update to the 2011 NEI on December 5, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site
8. 110(a)(2)(G)
9. 110(a)(2)(H)
10. 110(a)(2)(J)
11. 110(a)(2)(K)
12. 110(a)(2)(L)
To satisfy these requirements, North Carolina's infrastructure SIP submission cites Regulation 15A NCAC 2Q .0200
13. 110(a)(2)(M)
EPA is proposing to approve that portions of NCDAQ's infrastructure SIP submission, submitted August 23, 2013, for the 2010 1-hour NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Rhode Island on January 7, 2015. This SIP revision includes Rhode Island's regional haze progress report and adequacy determination for the first regional haze implementation period. This action is being taken under the Clean Air Act.
Written comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2015-0015 at
Anne K. McWilliams, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone (617) 918-1697, facsimile (617) 918-0697, email
In the Final Rules Section of this
For additional information, see the direct final rule which is located in the Rules Section of this
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve in part and disapprove in part portions of the April 23, 2013, and December 9, 2015, update State Implementation Plan (SIP) submissions, submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), for inclusion into the Alabama SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO
Written comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2014-0756 at
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO
This action is proposing to approve Alabama's infrastructure SIP submissions for the applicable requirements of the 2010 1-hour NO
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 NO
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below
EPA is acting upon the SIP submissions from Alabama that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.
EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.
Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (
As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM
For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes,
With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or
EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
Alabama's infrastructure submissions address the provisions of sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A)
In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM operations at a
Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B)
3. 110(a)(2)(C)
4. 110(a)(2)(D)
110(a)(2)(D)(i)(I)—prongs 1 through 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because Alabama's 2010 1-hour NO
110(a)(2)(D)(i)(II)—prong 3: With respect to Alabama's infrastructure SIP submission related to the interstate transport requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took final action to approve Alabama's April 23, 2013, infrastructure SIP submission regarding prong 3 of D(i) for the 2010 1-hour NO
110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will
5. 110(a)(2)(D)(ii)
6. 110(a)(2)(E)
In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), ADEM's infrastructure submissions demonstrate that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, fee schedules for the review of plans, and other planning needs as authorized at Ala. Code section 22-28-11 and section 22-28-9. Ala. Code section 22-28-23 does not allow the local programs to be less strict than the Alabama SIP/regulations and allows for oversight from the State. As evidence of the adequacy of ADEM's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to Alabama on April 19, 2016, outlining 105 grant commitments and current status of these commitments for fiscal year 2015. The letter EPA submitted to Alabama can be accessed at
Section 110(a)(2)(E)(ii) requires that the state comply with section 128 of the CAA. Section 128 requires that: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed. After reviewing Alabama's SIP, EPA has made the preliminary determination that the State's implementation plan does not contain provisions to comply with section 128 of the Act, and thus Alabama's April 23, 2013, and December 9, 2015, infrastructure SIP submissions do not meet the requirements of the Act. While Alabama has state statutes that may address, in whole or part, requirements related to state boards at the state level, these provisions are not included in the SIP as required by the CAA. Based on an evaluation of the federally-approved Alabama SIP, EPA is proposing to disapprove Alabama's certification that its SIP meets the requirements of 110(a)(2)(E)(ii) of the CAA for the 2010 1-hour NO
7. 110(a)(2)(F)
ADEM Admin. Code r. 335-3-1-.13—
Additionally, Alabama is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, SO
8. 110(a)(2)(G)
9. 110(a)(2)(H)
10. 110(a)(2)(J)
11. 110(a)(2)(K)
12. 110(a)(2)(L)
ADEM Admin. Code r. 335-1-6—
13. 110(a)(2)(M)
With the exception of interstate transport provisions pertaining to visibility protection requirements of section 110(a)(2)(D)(i)(II) (prong 4), and the state board requirements of section 110(a)(2)(E)(ii), EPA is proposing to approve that certain elements in Alabama's April 23, 2013, and December 9, 2015, SIP submissions for the 2010 1-hour NO
Under section 179(a) of the CAA, final disapproval of a submittal (or portion thereof) that addresses a requirement of a CAA Part D Plan or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP call) starts a sanctions clock. The section 110(a)(2)(E)(ii) provisions (the provisions being proposed for disapproval in today's notice) were not submitted to meet requirements for Part D or a SIP call, and therefore, if EPA takes final action to disapprove this submittal, no sanctions will be triggered. However, if this disapproval action is finalized, that final action will trigger the requirement under section 110(c) that EPA promulgate a federal implementation plan (FIP) no later than 2 years from the date of the disapproval unless the State corrects the deficiency, and EPA approves the plan or plan revision before EPA promulgates such FIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve most elements of State Implementation Plan (SIP) submissions from Massachusetts regarding the infrastructure requirements of the Clean Air Act (CAA or Act) for the 1997 ozone, 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO
The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.
Comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2014-0720, at
Bob McConnell, Environmental Engineer, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1046;
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Additionally, the term “the Commonwealth” refers to the state of Massachusetts.
This
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
This rulemaking addresses submissions from the Massachusetts Department of Environmental Protection (MassDEP). The Commonwealth submitted its infrastructure State Implementation Plan (ISIP) for the 1997 ozone NAAQS on December 14, 2007, its ISIP for the 200b Pb NAAQS on December 4, 2012, and its ISIPs for the 2008 ozone, 2010 NO
Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance
EPA is proposing approval of most aspects of the SIP submissions from Massachusetts that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
The requirement for states to make a SIP submission of this type arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these sections, each state must submit a SIP that provides for the implementation, maintenance, and enforcement of each primary or secondary NAAQS. States must make such SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of” a new or revised NAAQS. This requirement is triggered by the promulgation of a new or revised NAAQS and is not conditioned upon EPA's taking any other action. Section 110(a)(2) includes the specific elements that “each such plan” must address.
EPA commonly refers to such SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the planning requirements of part D of title I of the CAA.
This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (“SSM” emissions) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas separately. A detailed history, interpretation, and rationale for EPA's approach to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” (
EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. Historically, EPA has elected to use non-binding guidance documents to make recommendations for states' development and EPA review of infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA guidance applicable to these infrastructure SIP submissions is embodied in several documents. Specifically, attachment A of the 2007 Memo (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. The 2009 Memo provides additional guidance for certain elements regarding the 2006 PM
Pursuant to section 110(a), and as noted in the 2011 Memo and the 2013 Memo, states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. MassDEP held a public hearing on the ISIP for the 2008 Pb NAAQS on June 12, 2012, and held a public hearing on the ISIPs for the 2008 ozone, 2010 NO
EPA is soliciting comment on our evaluation of the state's infrastructure SIP submissions in this notice of proposed rulemaking. Massachusetts provided detailed synopses of how various components of its SIP meet each of the requirements in section 110(a)(2) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
This section requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.
Massachusetts General Law (M.G.L.) c.21A, § 8,
MassDEP has adopted numerous regulations within the Code of Massachusetts Regulations (CMR) in furtherance of the objectives set out by these statutes, including
We note, however, that we are conditionally approving this element because the SIP-approved version of 310 CMR 7.00 uses the term “National Ambient Air Quality Standards (NAAQS),” but does not contain a definition for this term. Therefore, there is uncertainty as to which versions of the NAAQS the term incorporates. By letter dated June 14, 2016, Massachusetts committed to submitting for inclusion in the SIP, by a date no later than one year from conditional approval of Massachusetts' infrastructure submissions, a definition for NAAQS in 310 CMR 7.00 that would reflect the current versions of the various NAAQS we are proposing to act on in this rulemaking.
In recognition of the above, EPA proposes that Massachusetts has met the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
In addition to the above, we are proposing to remove as legally obsolete 40 CFR 52.1160, which was promulgated on January 24, 1995 (60 FR 4737). Section 52.1160 provides that “Massachusetts' adopted LEV [Low Emission Vehicle] program must be revised to the extent necessary for the state to comply with all aspects of the requirements of 40 CFR 51.120,” a provision that was promulgated in the same action (60 FR 4736) and that required certain states to adopt the Ozone Transport Commission (OTC) LEV program or equivalent measures. (The OTC LEV program is based on California's LEV program and requires that only cleaner “LEV” cars be sold in the states in which it has been adopted). On March 11, 1997, however, the U.S. Court of Appeals for the District of Columbia Circuit vacated the provisions of 40 CFR 52.120.
As previously noted, EPA is not proposing to approve or disapprove any existing state provisions or rules related to SSM or director's discretion in the context of section 110(a)(2)(A).
This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.
Under MGL c.111, §§ 142B to 142D, MassDEP operates an air monitoring network. EPA approved the state's most recent Annual Air Monitoring Network Plan for Pb, ozone, NO
States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.
The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and, (iii) permitting program for minor sources and minor modifications. A discussion of greenhouse gas (GHG) permitting and the “Tailoring Rule”
MassDEP staffs and implements an enforcement program pursuant to authorities provided within the following laws: M.G.L. c.111, § 2C,
Sub-element 2 of section 110(a)(2)(C) requires that states provide for the regulation of modification and construction of any stationary source as necessary to assure that the NAAQS are achieved, including a program to meet PSD and NNSR requirements. PSD applies to new major sources or modifications made to major sources for pollutants where the area in which the source is located is in attainment of, or unclassifiable with regard to, the relevant NAAQS, and NNSR requires similar actions in nonattainment areas.
Massachusetts does not have an approved state PSD program and has made no submittals addressing the PSD sub-element of section 110(a)(2)(C). The Commonwealth has long been subject to a Federal Implementation Plan (FIP), however, and has implemented and enforced the federal PSD program through a delegation agreement. See 76 FR 31241; May 31, 2011. Accordingly, EPA is proposing a finding of failure to submit with respect to the PSD-related requirements of this sub-element for the 2010 NO
To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulates emissions of the relevant NAAQS pollutants. EPA's most recent approval of the Commonwealth's minor NSR program occurred on April 5, 1995 (60 FR 17226). Since this date, Massachusetts and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
In summary, we are proposing to find that Massachusetts has met the enforcement related aspects of Section 110(a)(2)(C) discussed above within sub-element 1, and the preconstruction permitting requirements for minor sources discussed in sub-element 3, for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution that states must address. It covers the following 5 topics, categorized as sub-elements: Sub-element 1, Contribute to nonattainment, and interfere with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the 4 prongs discussed below, 2 of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.
With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the physical properties of Pb prevent it from experiencing the same travel or formation phenomena as PM
Massachusetts' infrastructure SIP submission for the 2008 Pb NAAQS notes that there are no major sources of Pb emissions located in close proximity to any of the state's borders with neighboring states, or elsewhere in the state. Our review of data within our National Emissions Inventory (NEI) database confirms this, and also indicates that there is no group of sources anywhere within the state likely to emit enough Pb to cause ambient concentrations to approach the Pb NAAQS. Therefore, we propose that Massachusetts has met this set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.
Massachusetts' infrastructure SIP submission for the 2010 NO
In today's rulemaking, we are not proposing to approve or disapprove Massachusetts' compliance with section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone, 2008 ozone, or 2010 SO
One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state. A state's infrastructure SIP submittal cannot be considered approvable for prong 3 unless EPA has issued final approval of the state's PSD SIP, or alternatively, has issued final approval of a SIP that EPA has otherwise found adequate to prohibit interference with other states' measures to prevent significant deterioration of air quality.
As discussed under element C above, Massachusetts is currently subject to a PSD FIP. Therefore, we are proposing a finding of failure to submit for prong 3 of 110(a)(2)(D)(i)(II) with respect to the PSD requirement, in the same manner as discussed under element C above. However, this finding will not trigger any sanctions or additional FIP obligation.
Under prong 3 of 110(a)(2)(D)(i)(II), EPA also reviews the potential for in-state sources not subject to PSD to interfere with PSD in an attainment or unclassifiable area of another state. EPA guidance recommends that a “fully approved nonattainment [new source review (NNSR)] program with respect to any previous NAAQS may generally be considered by the EPA as adequate for purposes of meeting this requirement of prong 3 with respect to sources and pollutants subject to such program.” 2013 Guidance at 32. EPA last approved the Commonwealth's NNSR program on October 27, 2000. 65 FR 64360. Because Massachusetts is located within the Ozone Transport Region,
With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 Memo, and 2013 Memo state that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze.
The Commonwealth's Regional Haze SIP was approved by EPA on September 13, 2013. See 78 FR 57487. Accordingly, EPA proposes that Massachusetts has met the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 relating to interstate pollution abatement. Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. As mentioned elsewhere in this notice, Massachusetts is currently subject to a PSD FIP and it did not make submittals addressing the PSD-related requirements of section 126(a). Therefore, we are proposing to make a finding of failure to submit for section 110(a)(2)(D)(ii) regarding PSD-related notice of interstate pollution with respect to the 2010 NO
One portion of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. Massachusetts does not have any pending obligations under section 115 for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP, and related issues. Additionally, section 110(a)(2)(E)(ii) requires each state to comply with the requirements with respect to state boards under section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. This last sub-element, however, is inapplicable to this action, because Massachusetts does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.
Massachusetts, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. Massachusetts General Laws c. 111, sections 142A to 142N, provide MassDEP with the authority to carry out the state's implementation plan. The Massachusetts SIP, as originally submitted in 1971 and subsequently amended, provides descriptions of the staffing and funding necessary to carry out the plan. In the submittals, MassDEP provides assurances that it has adequate personnel and funding to carry out the SIP during the five years following infrastructure SIP submission and in future years. Additionally, the Commonwealth receives CAA section 103 and 105 grant funds through Performance Partnership agreements and provides state matching funds, which together enable Massachusetts to carry out its SIP requirements. In light of the foregoing, EPA proposes that Massachusetts has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128(a) of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.
Massachusetts does not have a state board that approves permits or enforcement orders under the CAA. Instead, permits and enforcement orders are approved by the Commissioner of MassDEP. Thus, Massachusetts is not subject to the requirements of paragraph (a)(1) of section 128. As to the conflict of interest provisions of section 128(a)(2), Massachusetts has cited to M.G.L. c. 268A, sections 6 and 6A of the Commonwealth's Conflict of Interest law in its June 6, 2014 infrastructure SIP submittal for the 2008 ozone, 2010 NO
States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.
Pursuant to M.G.L. c.111, sections 142A to 142D, MassDEP has the necessary authority to maintain and operate air monitoring stations, and coordinates with EPA in determining the types and locations of ambient air monitors across the state. The Commonwealth uses this authority to collect information on air emissions from sources in the state. Additionally, Massachusetts statutes and regulations provide that emissions data shall be available for public inspection.
1. 310 CMR 7.12, Source Registration.
2. 310 CMR 7.13, Stack Testing.
3. 310 CMR 7.14, Monitoring Devices and Reports.
EPA recognizes that Massachusetts routinely collects information on air emissions from its industrial sources and makes this information available to the public. EPA, therefore, proposes that the Commonwealth has met the infrastructure SIP requirements of section 110(a)(2)(F) with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
This section requires that a plan provide for authority that is analogous to what is provided in section 303 of the
We propose to find that the Commonwealth's ISIP submittals demonstrate that certain state statutes and regulations provide for authority comparable to that in section 303. Massachusetts' submittals cite M.G.L. c.111, section 2B,
Moreover, M.G.L. c. 21A, section 8 provides that, “[i]n regulating . . . any pollution prevention, control or abatement plan [or] strategy . . . through any . . . departmental action affecting or prohibiting the emission . . . of any hazardous substance to the environment . . . the department may consider the potential effects of such plans [and] strategies . . . on public health and safety and the environment . . . and said department shall act to minimize and prevent damage or threat of damage to the environment.”
These duties are implemented, in part, under MassDEP regulations at 310 CMR 8.00,
Section 110(a)(2)(G) also requires that, for any NAAQS, States have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II.
Although Massachusetts has adopted 310 CMR 8.00,
With respect to Pb, we note that Pb is not explicitly included in the contingency plan requirements of subpart H. In addition, we note that there are no large sources of Pb in Massachusetts. Specifically, a review of the National Emission Inventory shows that there are no sources of Pb in Massachusetts that exceed EPA's reporting threshold of 0.5 tons per year. Although not expected, if that situation were to change, Massachusetts does have general authority (
Consequently, EPA proposes that Massachusetts has met the applicable infrastructure SIP requirements of section 110(a)(2)(G) with respect to the 2008 Pb NAAQS. Furthermore, because all AQCRs in the state are classified as Priority III for NO
This section requires that a state's SIP provide for revision from time to time as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever the EPA finds that the SIP is substantially inadequate. Massachusetts General Laws c. 111, section 142D provides in relevant part that,
EPA proposes that Massachusetts has met the infrastructure SIP requirements of CAA section 110(a)(2)(H) with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas. EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.
The evaluation of the submissions from Massachusetts with respect to the requirements of CAA section 110(a)(2)(J) are described below.
Section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements pursuant to Section 121 relating to consultation.
Pursuant to EPA-approved Massachusetts regulations at 310 CMR 7.02(12)(g)(2), MassDEP notifies the public “by advertisement in a newspaper having wide circulation” in the area of the particular facility of the opportunity to comment on certain proposed permitting actions and sends “a copy of the notice of public comment to the applicant, the EPA, and officials and agencies having jurisdiction over the community in which the facility is located, including local air pollution control agencies, chief executives of said community, and any regional land use planning agency.” Massachusetts did not make a submittal, however, with respect to the requirement to consult with FLMs. As previously mentioned, Massachusetts does not have an approved state PSD program, but rather is subject to a PSD FIP. The FIP includes a provision requiring consultation with FLMs.
Section 110(a)(2)(J) also requires states to: Notify the public if NAAQS are exceeded in an area; advise the public of health hazards associated with exceedances; and enhance public awareness of measures that can be taken to prevent exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality.
Massachusetts regulations specify criteria for air pollution episodes and incidents and provide for notice to the public via news media and other means of communication. See 310 CMR 8.00. The Commonwealth also provides a daily air quality forecast to inform the public about concentrations of fine particles and, during the ozone season, provides similar information for ozone. Real time air quality data for NAAQS pollutants are also available on the MassDEP's Web site, as are information about health hazards associated with NAAQS pollutants and ways in which the public can participate in regulatory efforts related to air quality. The Commonwealth is also an active partner in EPA's AirNow and EnviroFlash air quality alert programs, which notify the public of air quality levels through EPA's Web site, alerts, and press releases. In light of the above, we propose to find that Massachusetts has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
States must meet applicable requirements of section 110(a)(2)(C) related to PSD. The Commonwealth's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(D)(ii), and our proposed actions for those sections are consistent with the proposed actions for this portion of section 110(a)(2)(J). Specifically, we propose a finding of failure to submit with respect to the PSD sub-element of section 110(a)(2)(J) for the 2010 NO
With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
To satisfy element K, the state air agency must demonstrate that it has the authority to perform air quality modeling to predict effects on air quality of emissions of any NAAQS pollutant and submit such data to EPA upon request.
Pursuant to the authority granted by M.G.L. c.111, sections 142B-142D, the MassDEP has the authority to maintain and operate air sampling stations and devices, make or perform “such examinations, inspections, observations, determinations, laboratory analyses, and surveys; maintain such records; and perform such other acts as it deems necessary to conduct an adequate air pollution control program . . . .” The agency is further authorized to require sources to report monitoring and emissions data. MassDEP accomplishes these objectives via a number of regulations, including the following:
The state also collaborates with the Ozone Transport Commission (OTC), the Mid-Atlantic Regional Air Management Association, and EPA in order to perform large scale urban airshed modeling. EPA proposes that
This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.
Massachusetts implements and operates the Title V permit program, which EPA approved on September 28, 2001. See 66 FR 49541. In addition, M.G.L. c. 21A, section 18 authorizes MassDEP to promulgate regulations establishing fees. To collect fees from sources of air emissions, the MassDEP promulgated and implements 310 CMR 4.00, Timely Action Schedule and Fee Provisions. These regulations set permit compliance fees, including fees for Title V operating permits. EPA proposes that the Commonwealth has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
To satisfy element M, states must consult with, and allow participation from, local political subdivisions affected by the SIP. Pursuant to M.G.L. c.111, section 142D, MassDEP must hold public hearings prior to revising its SIP. In addition, M.G.L. c. 30A, Massachusetts Administrative Procedures Act, requires MassDEP to provide notice and the opportunity for public comment and hearing prior to adoption of any regulation. Moreover, the Commonwealth's Executive Order No. 145 requires state agencies, including MassDEP, to provide notice to the Local Government Advisory Committee to solicit input on the impact of proposed regulations and other administrative actions on local governments. Therefore, EPA proposes that Massachusetts has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
EPA is proposing to approve most portions of the SIP submissions from Massachusetts certifying that its current SIP is sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) for the 1997 ozone, 2008 Pb, 2008 ozone, 2010 NO
In addition, we are proposing to incorporate into the Massachusetts SIP sections 6 and 6A of the state's Conflict of Interest law, which the Commonwealth submitted on June 6, 2014, and are proposing to remove 40 CFR 52.1160 regarding Massachusetts LEV in that it is legally obsolete.
As shown in Table 1, we are proposing to issue a finding of failure to submit for sub-element J(i) pertaining to the requirement for consultation with FLMs for all five of the cited NAAQS, and note that in light of the PSD FIP, this finding will not result in sanctions or new FIP obligations. Additionally, we are also proposing to issue findings of failure to submit with respect to the PSD-related elements in sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for
EPA is proposing to conditionally approve an aspect of the Commonwealth's submittal for element 110(a)(2)(A) pertaining to ambient air quality standards because the current, SIP-approved version of 310 CMR 7.00, Air Pollution Control, does not reflect the current version of the various NAAQS we are proposing to act on in this rulemaking. However, by letter dated June 14, 2016, the Commonwealth committed to add a definition of NAAQS 310 CMR 7.00 that includes a calendar date to address this issue. For this reason, EPA is proposing to conditionally approve this SIP revision provided that the Commonwealth submits to EPA an updated version of 310 CMR 7.00. Additionally, we are proposing to conditionally approve the Commonwealth's submittals for element 110(a)(2)(G) pertaining to contingency plans for the 1997 and 2008 ozone NAAQS, and 2010 SO
Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than one year from the date of approval. If EPA conditionally approves these commitments in a final rulemaking action, Massachusetts must meet its commitments to: Submit an updated version of 310 CMR 7.00, Air Pollution Control, containing a calendar date to clarify which NAAQS are being referenced, to fully meet the requirements of element 110(a)(2)(A); submit revisions to its SIP-approved nonattainment new source review regulations to fully meet the requirements of element 110(a)(2)(D)(i)(II); and, submit a regulation addressing the contingency plan requirement of section 110(a)(2)(G). If the State fails to do so, this action will become a disapproval one year from the date of final approval. EPA will notify the State by letter that this action has occurred. At that time, these commitments will no longer be a part of the approved Massachusetts SIP. EPA subsequently will publish a document in the
EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the
In this rulemaking, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference into the Massachusetts SIP M.G.L c. 268A, sections 6 and 6A of the Commonwealth's Conflict of Interest law submitted to EPA on June 6, 2014. The EPA has made, and will continue to make, this document generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur Oxides, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
In accordance with the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is proposing to redesignate the Ohio portion of the Campbell-Clermont KY-OH sulfur dioxide (SO
Comments must be received on or before August 19, 2016.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0599 at
Mary Portanova, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
On June 2, 2010 (75 FR 35520, June 22, 2010), EPA established a revised primary SO
By April 4, 2015, Ohio and Kentucky were required to submit nonattainment plan SIPs that meet the requirements of sections 172(c) and 191-192 of the CAA, and provide for attainment of the NAAQS as expeditiously as practicable, but no later than October 4, 2018. Ohio's analysis found the Beckjord plant to be the main contributor to SO
Under CAA section 107(d)(3)(E), there are five criteria which must be met before a nonattainment area may be redesignated to attainment.
1. EPA has determined that the relevant NAAQS has been attained in the area.
2. The applicable implementation plan has been fully approved by EPA under section 110(k).
3. EPA has determined that improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the SIP, Federal regulations, and other permanent and enforceable reductions.
4. EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A of the CAA.
5. The State has met all applicable requirements for the area under section 110 and part D.
The first requirement for redesignation is to demonstrate that the standard has been attained in the area. As stated in the April 2014 “Guidance for 1-Hour SO
Under EPA regulations at 40 CFR 50.17, the SO
Table 1 shows the 2012-2014 and 2013-2015 design values for the Campbell-Clermont KY-OH nonattainment area. For 2014, the last year in which the Beckjord plant was operating, the 99th percentile monitored daily maximum value was 61 ppb. For 2015, after the Beckjord plant had shut down, the 99th percentile monitored daily maximum value was 18 ppb. The three-year average design value for 2012-2014 is 72 ppb, and the three-year average design value for 2013-2015 is 50 ppb. Both are below the SO
Regarding the second component of the attainment determination, Ohio examined the extent to which the earlier NAAQS violations and subsequent improvement in the local monitored SO
As a first step in this approach, Ohio reviewed the inventory of SO
The second part of this review was to more closely examine potential contributors to SO
The third analysis considered monitored SO
Ohio did not further evaluate the sources to the north and west of the nonattainment area due to their distance from the area and their emission levels, and because the previously discussed analyses did not indicate that sources north and west of the nonattainment area have had a significant influence on monitored exceedances. Ohio did, however, specifically evaluate the Zimmer plant for its potential contribution to elevated SO
First, the State considered a graphical analysis of the 2012-2014 hourly SO
Ohio's second approach to assessing prospects of future violations in the nonattainment area was to perform a modeling analysis to evaluate the location of the Zimmer plant's maximum impacts and to estimate a worst-case impact within the nonattainment area. This analysis was intended to address the potential for violations not just at the monitoring site (28 km from the Zimmer plant) but also elsewhere in the nonattainment area. The Zimmer plant is approximately 11.5 km from the nearest edge of the Campbell-Clermont KY-OH SO
As a third approach, Ohio and Kentucky estimated future SO
In addition to these analyses, all of which were provided in Ohio's redesignation request, Ohio has also provided relevant information in the separate context of addressing the prospective SO
EPA has determined that Ohio has a fully approved SIP under section 110(k). Ohio has implemented its SO
As previously stated, the Beckjord plant closed in late 2014, and the monitored improvement in air quality is largely due to this closure. The closure results in a reduction of 90,835 tpy, considering the plant's 2011 emissions, representing the time the area was classified nonattainment; or a reduction of 32,603 tpy, considering the plant's emissions in 2014, when the area first began to monitor attainment. Upon notification of the Beckjord plant's closure, in accordance with Ohio EPA policy, Ohio ceased its authorization for the facility to operate unless it obtains a new permit. Ohio EPA provided documentation of this shutdown in the form of an October 14, 2014, letter from Duke Energy Ohio, Inc., to the Southwest Ohio Air Quality Agency. In this letter, Duke Energy Ohio, Inc. confirmed that the Beckjord plant's six large coal-fired units are permanently shut down and removed from service as of October 1, 2014. The letter confirmed that Ohio's authorization for Duke Energy Ohio, Inc. to operate the six units had ceased. The Beckjord plant has been demonstrated to be the primary SO
Ohio has submitted information demonstrating that it meets these requirements. EPA approved Ohio's infrastructure SIP for SO
Section 191 of the CAA requires Ohio to submit a part D nonattainment SIP for the Campbell-Clermont KY-OH nonattainment area by April 4, 2015. Because Ohio submitted its August 11, 2015, redesignation request instead of a nonattainment SIP, EPA was compelled to include this area in our March 18, 2016, finding of failure to submit (81 FR 14736). However, final promulgation of this redesignation to attainment would end any nonattainment plan requirements, and promulgation of this redesignation within 18 months of the finding of failure to submit would result in no sanctions taking effect.
With the redesignation request of August 11, 2015, Ohio submitted information addressing the section 172 part D SIP requirements. Ohio submitted an attainment inventory of the SO
Table 2 shows the projected inventories. Note that Kentucky's inventory remains steady at approximately 8 tpy total, while Ohio's projected inventory, accounting for the Beckjord plant's actual closure, drops from over 90,000 tpy in 2011 to approximately 8 tpy in the interim and maintenance years. This large reduction is expected to be sufficient to maintain the SO
Section 172(c)(1) requires nonattainment area SIPs to provide for the implementation of all reasonably available control measures (RACM) as expeditiously as practicable and to provide for attainment of the NAAQS. EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not applicable for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard.
The other section 172 requirements that are designed to help an area achieve attainment are the section 172(c)(2) requirement that nonattainment plans contain provisions promoting reasonable further progress, the requirement to submit the section 172(c)(9) contingency measures, and the section 172(c)(6) requirement for the SIP to contain control measures necessary to provide for attainment of the NAAQS. These are also not required to be approved as part of the “applicable implementation plan” for purposes of satisfying CAA section 107(d)(3)(E)(ii).
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Ohio has demonstrated that the Campbell-Clermont KY-OH nonattainment area will be able to maintain the NAAQS without part D NSR in effect, and therefore Ohio does not need to have a fully approved part D NSR program prior to approval of the redesignation request. Ohio's PSD program will become effective in the Campbell-Clermont KY-OH nonattainment area upon redesignation to attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Ohio SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.
Section 176(c) of the CAA requires States to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA. On August 20, 2014, Ohio submitted documentation establishing transportation conformity procedures in its SIP. EPA approved these procedures on March 2, 2015 (80 FR 11133). Moreover, EPA interprets the
As discussed above, EPA is proposing to find that Ohio has satisfied all applicable requirements for purposes of redesignation of the Campbell-Clermont KY-OH nonattainment area under section 110 and part D of title I of the CAA.
CAA section 175A sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the nonattainment area is redesignated to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the ten years following the initial ten-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future one-hour SO
Ohio's August 11, 2015, redesignation request contains its maintenance plan, which Ohio has committed to review eight years after redesignation. Ohio submitted an attainment emission inventory which addresses current emissions and projections of future emissions, for point, area, and mobile sources. Total SO
In accordance with Ohio's August 11, 2015, request, EPA is proposing to redesignate the Ohio portion of the Campbell-Clermont KY-OH nonattainment area from nonattainment to attainment of the SO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental Protection Agency (EPA).
Notice of filing of petitions and request for comment.
This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before August 19, 2016.
Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Susan Lewis, Registration Division (RD) (7505P), main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
3.
EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.
21 U.S.C. 346a.
U.S. Agency for International Development.
Proposed rule.
This proposed rule is a companion document to the U.S. Agency for International Development (USAID) direct final rule (published in the “Rules and Regulations” section of this
Submit comments on or before September 19, 2016.
Address all comments concerning this notice to Lyudmila Bond, Bureau for Management, Office of Acquisition and Assistance, Policy Division (M/OAA/P), Room 867-G, SA-44, Washington, DC 20523-2052. Submit comments by any of the following methods:
Lyudmila Bond, Telephone: 202-567-4753 or Email:
USAID is publishing this amendment as a direct final rule because the Agency views it as a conforming and administrative amendment and does not anticipate any adverse comments. A detailed discussion of the rule is set forth in the preamble of the direct final rule.
If no adverse comments are received in response to the direct final rule, no further action will be taken related to this proposed rule.
If adverse comment(s) are received on the direct final rule, USAID will publish a timely withdrawal in the
All comments must be in writing and submitted through one of the methods specified in the Addresses section above. All submissions must include the title of the action and RIN for this rulemaking. Please include your name, title, organization, postal address, telephone number, and email address in the text of the message.
Comments submitted by email must be included in the text of the email or attached as a PDF file. Please avoid using special characters and any form of encryption. Please note, however, that because security screening precautions have slowed the delivery and dependability of surface mail to USAID/Washington, USAID recommends sending all comments to the Federal eRulemaking Portal.
After receipt of a comment and until finalization of the action, all comments will be made available at
As noted above, in the “Rules and Regulations” section of this
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendment; request for comments.
The New England Fishery Management Council has submitted to NMFS Amendment 19 to the Atlantic Sea Scallop Fishery Management Plan which proposes to incorporate a specifications process into the Atlantic Sea Scallop Fishery Management Plan and to change the start of the fishing year from March 1 to April 1. The ability to develop specifications to set annual or biennial allocations would allow for a more timely process for setting annual allocations than currently possible with framework adjustments. By adjusting the start of the scallop fishing year from March 1 to April 1, NMFS would be able to implement simple specification actions at the start of the fishing year on a more consistent basis. NMFS requests public comments on whether NMFS should approve this amendment and the draft Environmental Assessment incorporated in the amendment.
Comments must be received on or before September 19, 2016.
You may submit comments, identified by NOAA-NMFS-2016-0028, by any one of the following methods.
1. Go to
2. Click the “Comment Now!” icon, complete the required fields.
3. Enter or attach your comments.
Copies of Amendment 19 to the Atlantic Sea Scallop Fishery Management Plan (Amendment 19), and of the draft Environmental Assessment (EA) and Regulatory Impact Review, are available from the Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. The EA/RIR is also accessible via the Internet at:
Emily Gilbert, Fishery Policy Analyst, 978-281-9244.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each Regional Fishery Management Council submit any Fishery Management Plan (FMP) amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish notification in the
The scallop fishery's management unit ranges from the shorelines of Maine through North Carolina to the outer boundary of the Exclusive Economic Zone. The Atlantic Sea Scallop Fishery Management Plan (FMP), established in 1982, includes a number of amendments and framework adjustments that have revised and refined the fishery's management. The Council has had to rely on the framework adjustment process to set scallop fishery measures, often referred to as specifications, that occur annually or biennially. Typically, these specifications include annual catch limits, days-at-sea (DAS), rotational area management, possession limits, access area trip allocations, individual fishing quota (IFQ) allocations, and allocations for vessels with Northern Gulf of Maine permits. These framework adjustments often include other management measures and are often implemented 2 to 3 months after the March 1 start of the scallop fishing year (March 1 through February 28/29).
Amendment 4 to the Scallop FMP (59 FR 2757, January 19, 1994), was a major shift in scallop fishery management. It established a limited access permit and effort control program and the new permits and effort control became effective on March 1, 1994. Framework Adjustment 1 (59 FR 36720, July 19, 1994) formally adopted March1 as the start of the scallop fishing year. There was no biological or economic rationale originally for selecting this date as the start of the fishing year: Framework 1 codified the March 1 Amendment 4 effective date as the start of the fishing year so that allocations for 1994 spanned a 12-month period in order to ensure a reduction in fishing effort the first year of the DAS effort-control program. This fishing year has remained in place since that time, even though specifications have become increasingly more complicated with the development of the scallop access area rotation program in 2004 and IFQ fishery in 2010.
In the last 16 years following Framework 11, there have been 12 actions that set annual scallop specifications. Four of those actions set specifications for 2 years, which ensured that the second year's specifications for each of those actions were implemented on March 1. Aside from these biennial frameworks, we have only been able to set specifications by March 1 on two occasions, both involving special circumstances (
Typically, the Council begins developing a specifications-setting framework in June. Scallop biomass estimates are provided through scallop surveys conducted by NMFS and other research institutions in the spring and summer. These estimates are not generally available for consideration until the early fall, at which point the Scallop Plan Development Team (PDT) develops and analyzes fishery allocation alternatives for Council consideration. In order to incorporate the most recent available scallop survey information into these alternatives, which has proved essential in setting appropriate access area catch levels, the Council has been taking final action in November and NMFS has typically implemented allocations in May or June.
In 2013, the Council began developing specifications on an annual basis via frameworks at the request of the industry to avoid biennial specifications that resulted in the second year specifications being out of sync with what the most recent annual surveys indicate could be harvested in a given area. However, this meant that the annual specifications were likely to be late every year due to availability of relevant data. To address this problem, the Council has been specifying “default” specifications for the year after annual specifications are set to fill the gap between the end of the fishing year and the setting of new specifications for the next fishing year. Implementing these “default” specifications every year is an administrative burden to NMFS staff and can result in complex inseason changes in fishery specifications. In addition, default specifications lead to confusion and uncertainty for the fleet, as well as potentially negative impacts on the resource and fishery if effort shifts into areas or seasons that are less desirable as a result of delayed measures.
The Council initiated Amendment 19 to develop an alternative to the framework adjustment process to
• Establish a specifications process so that allocations would not be tied only to actions that tend to have longer timelines (
• Adjust the scallop fishing year to April 1 through March 31.
Adding the ability to adjust allocations through a specifications setting process would produce some time-savings because the Council would not be required to discuss measures over the course of two Council meetings, as is required under the framework adjustment process. However, it would not guarantee allocations would be in place by March 1 of each year. As a result, the Council is recommending that the fishing year be changed to April 1 through March 31. Pushing the fishing year back one month would increase the likelihood that NMFS would be able to implement simple specifications actions at the start of the scallop fishing year on a more consistent basis, avoiding the need to implement default measures. Amendment 19 would also adjust the scallop permit year so that it continues to match the official fishing year (
In addition, NMFS and Council staff discussed other, non-regulatory streamlining initiatives that will result in time-savings in implementing final allocations. These include preparing a decision draft of an EA immediately following the Council's final action on a framework and publishing a proposed rule prior to NMFS' formal review of the EA. These measures will assist in implementing simple, non-controversial specifications actions on a quicker timeline than typical frameworks.
We are soliciting public comments on Amendment 19 and its incorporated documents through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 19 will be published in the
Comments received after that date will not be considered in the decision to approve or disapprove Amendment 19, including those postmarked or otherwise transmitted, but not received by NMFS, by the last day of the comment period.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; correction.
This document corrects a typographical error in the
Comments on the proposed rule must be submitted on or before July 25, 2016.
You may submit comments on this document identified by NOAA-NMFS-2016-0048, by any of the following methods:
•
•
Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034,
In the
16 U.S.C. 1801
Agricultural Research Service, USDA.
Notice of intent.
Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of red raspberry described in U.S. Plant Patent Application Serial No. 14/999,027, “RED RASPBERRY PLANT NAMED `KOKANEE',” filed on March 22, 2016.
Comments must be received on or before August 19, 2016.
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4-1174, Beltsville, Maryland 20705-5131.
Mojdeh Bahar of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5989.
The Federal Government's patent rights in this plant variety are assigned to the United States of America, as represented by the Secretary of Agriculture. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Forest Service, USDA.
Notice of meeting.
The Delta-Bienville Resource Advisory Committee (RAC) will meet in Forest, Mississippi. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site:
The meeting will be held at 6:00 p.m. on August 15, 2016.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at Bienville Ranger District, 3473 Hwy 35 South, Forest, Mississippi. Interested parties may also attend via teleconference by contacting the person listed under
Written comments may be submitted as described under
Michael Esters, Designated Federal Officer, by phone at 601-469-3811 or via email
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to review and recommend projects.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 5, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Michael T. Esters, Designated Federal Officer, Bienville Ranger District, 3473 Hwy 35 South, Forest, Mississippi 39074; by email to
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before September 19, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Valerie Mastalski, U.S. Census Bureau, Room HQ-8K041, Washington, DC 20233; (301) 763-3317 (or via the Internet at
The U.S. Census Bureau plans to conduct the 2016 through 2018 Annual Capital Expenditures Survey (ACES). The annual survey collects data on fixed assets and depreciation, sales and receipts, capitalized computer software, and capital expenditures for new and used structures and equipment. The ACES is the sole source of detailed comprehensive statistics on actual business spending for non-farm companies, non-governmental companies, organizations, and associations operating in the United States. Both employer and nonemployer companies are included in the survey.
The Bureau of Economic Analysis, the primary Federal user of the ACES data, uses these data in refining and evaluating annual estimates of investment in structures and equipment in the national income and product accounts, compiling annual input-output tables, and computing gross domestic product by industry. The Federal Reserve Board uses these data to improve estimates of investment indicators for monetary policy. The Bureau of Labor Statistics uses these data to improve estimates of capital stocks for productivity analysis.
Industry analysts use these data for market analysis, economic forecasting, identifying business opportunities, product development, and business planning.
Planned changes from the previous ACES are the collection of capital expenditures data solely by electronic reporting, and the collection of capital expenditures by type of structure and type of equipment in the 2017 ACES only. Every five years, for years ending in “3” and “8”, detailed data by types of structures and types of equipment have been collected from companies with employees. In 2010, it was decided that this detailed data should be collected for years ending in “2” and “7” beginning in 2013, to align with the years in which the Economic Census is conducted.
For the 2012 and prior ACES data collection; the Census Bureau used mail out/mail back survey forms to collect data. For the 2013 ACES, the Census Bureau collected data from employer companies primarily through electronic reporting and continued to use mail out/mail back survey forms to collect data from nonemployer companies. Beginning with the 2014 ACES, the Census Bureau collected data from both employer and nonemployer companies primarily through electronic reporting. Companies were asked to respond to the survey within 30 days of the initial mailing. Letters and/or telephone calls encouraging participation were directed to companies that had not responded by the designated time.
The Census Bureau will continue collecting the ACES data from employer and nonemployer companies solely through electronic reporting. Employer companies will complete the ACE-1 electronic reporting instrument. Nonemployers will complete the ACE-2 electronic reporting instrument. All companies will receive a notification letter containing their User ID and password, and will be directed to report online through the Census Bureau's Business Help Site. The online reporting instruments are an electronic version of the paper data collection instruments, which will no longer be used and are tailored to the company's diversity of operations and number of industries with payroll.
The Census Bureau will continue to ask both companies with employees and nonemployer companies to respond to the survey within 30 days. Reminder letters and/or telephone calls encouraging participation will continue to be directed to all companies that have not responded by the designated time.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 14, 2016, the Department of Commerce (the “Department”) published the preliminary results of the 2014-2015 administrative review (“AR”) of the antidumping duty order on silicon metal from the People's Republic of China (“PRC”).
Effective July 20, 2016.
Aleksandras Nakutis, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3147.
As noted above, on March 14, 2015, the Department published the
The merchandise covered by the order is silicon metal containing at least 96.00 percent, but less than 99.99 percent of silicon by weight. Also covered by the order is silicon metal containing between 89.00 and 96.00 percent silicon by weight but which contains a higher aluminum content than the silicon metal containing at least 96.00 percent but less than 99.99 percent silicon by weight (58 FR 27542, May 10, 1993). Silicon metal is currently provided for under subheadings 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule (“HTS”) as a chemical product, but is commonly referred to as a metal. Semiconductor-grade silicon (silicon metal containing by weight not less than 99.99 percent of silicon and provided for in subheading 2804.61.00 of the HTS) is not subject to this order. Although the HTS numbers are provided for convenience and customs purposes, the written description remains dispositive.
Petitioner's case brief addressed no issues beyond agreeing with the Department's preliminary findings and draft customs instructions. In the
Pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.212(b), the Department has determined, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. We intend to instruct CBP to liquidate POR entries of subject merchandise exported by Shanghai Jinneng and Shanghai Jinfeng at the PRC-wide entity rate, which is 139.49 percent.
The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date in the
These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3), which
This notice of the final results of this antidumping duty administrative review is issued and published in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213 and 19 CFR 351.221(b)(5).
National Institute of Standards and Technology, Department of Commerce.
Notice; prospective grant of exclusive patent license.
This is a notice in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i) that the National Institute of Standards and Technology (“NIST”), U.S. Department of Commerce, is contemplating the grant of an exclusive license in the United States of America, its territories, possessions and commonwealths, to NIST's interest in the invention embodied in U.S. Patent Application No. 15/188,211, titled “Acousto-Microwave System for Determining Mass or Leak of Gas in a Vessel and Process for Same,” (NIST Docket No. 15-010US1) to Western Energy Support & Technology, Inc. The grant of the license would be for leak rate testing and gas flow standards fields of uses.
Jeffrey DiVietro, National Institute of Standards and Technology, Technology Partnerships Office, 100 Bureau Drive, Stop 2200, Gaithersburg, MD 20899, (301) 975-8779,
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published Notice, NIST receives written evidence and argument which establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. The Patent Application was filed on June 21, 2016 and describes systems and methods for determining a quantity of gas in a container.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Mid-Atlantic Fishery Management Council's (MAFMC) Ecosystem and Ocean Planning Committee will hold a public meeting.
The meeting will be held on Friday, July 29, 2016, from 9 a.m. to 12 p.m. For agenda details, see
The meeting will be held via Webinar, at (
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is to discuss and provide comments on the Council's Ecosystem Approach to Fisheries Management Guidance Document which will be presented to the Council for approval at its August 2016 meeting in Virginia Beach, VA. These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
16 U.S.C. 1801
Office of the Under Secretary of Defense for Personnel & Readiness, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by September 19, 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 Office of Family Readiness Policy, ATTN: Program Manager, Spouse Education & Career Opportunities Program, 4800 Mark Center Drive, Suite 03G15, Alexandria, VA 22350-2300.
The Military Spouse Employment Partnership (MSEP) Career Portal is the sole web platform utilized to connect military spouses with companies seeking to hire military spouse employees. Participating companies, called MSEP Partners, are vetted and approved participants in the MSEP Program and have pledged to recruit, hire, promote and retain military spouses in portable careers. MSEP is a targeted recruitment and employment partnership that connects American businesses with military spouses who possess essential 21st-century workforce skills and attributes and are seeking portable, fulfilling careers. The MSEP program is part of the overall Spouse Education and Career Opportunities (SECO) program which falls under the auspices of the office of the Deputy Assistant Secretary of Defense for Military Community & Family Policy.
This program was developed in compliance with 10 U.S. Code 1784 Employment Opportunities for Military Spouses which states:
(f) Private-Sector Employment.—The Secretary of Defense—
(1) shall seek to develop partnerships with firms in the private sector to enhance employment opportunities for spouses of members of the armed forces and to provide for improved job portability for such spouses, especially in the case of the spouse of a member of the armed forces accompanying the member to a new geographical area because of a change of permanent duty station of the member; and
(2) shall work with the United States Chamber of Commerce and other appropriate private-sector entities to facilitate the formation of such partnerships.
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF High Energy Physics Advisory Panel (HEPAP). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Friday, August 12, 2016; 12:00 Noon to 3:00 p.m.
Teleconference. Instructions for access can be found on the HEPAP Web site:
John Kogut, Executive Secretary; High Energy Physics Advisory Panel (HEPAP); U.S. Department of Energy; SC-25/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290; Telephone: 301-903-1298.
Office of Electricity Delivery and Energy Reliability, Department of Energy.
Notice of request for public comment.
With this notice, the U.S. Department of Energy (DOE) seeks public comment on the proposed content and scope of the Joint U.S.-Canadian Electric Grid Strategy as indicated by the draft outline presented here.
DOE seeks public comment including the following: (1) Suggestions for how best to describe the cyber and physical risks to electric grid systems, as well as ways to address and mitigate those risks; (2) suggestions for ensuring that the outlined strategic goals and objectives are at the appropriate level for a joint U.S.-Canadian strategy; (3) suggestions for actions under the proposed joint strategy that Federal departments and agencies should take to make the grid more secure and resilient; (4) suggestions for new ways to secure the future grid across North America, as outlined in the final section; and (5) suggestions for timelines to use when considering future planning and investment opportunities.
Supplementary background information, additional details, and instructions for submitting comments can be found below.
Comments must be received on or before August 10, 2016.
Comments can be submitted by either of the following methods and must be identified as “Joint Strategy.” By email:
Requests for additional information should be directed to Stewart Cedres, Office of Electricity Delivery & Energy Reliability, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, 202-586-2066,
During the March 2016 visit by Canadian Prime Minister Justin Trudeau, in the “U.S.-Canada Joint Statement on Climate, Energy, and Arctic Leadership,” the U.S. and Canada agreed to “[d]evelop a joint U.S.-Canadian strategy for strengthening the security and resilience of the North American electricity grid [and] work together to strengthen the security and resilience of the electric grid, including against the growing threat from cyber-attacks and climate change impacts.” The Departments of Energy and Homeland Security are co-leading an interagency effort, including our Canadian colleagues, to develop this proposed joint strategy.
As a first step, Federal interagency writing teams have developed an outline for the proposed joint strategy that consists of three overarching strategic goals and objectives in support of achieving those goals. The purpose of the draft outline is to give the public an initial view of potential goals, objectives, and actions that could be taken to strengthen the security and resilience of the electric grid. In developing the outline, the writing teams used a “baseline” document consisting of analytical work that supports both the development of this proposed strategy and the next iteration of the Quadrennial Energy Review.
DOE will collate public comments received on the outline. The comments will inform the preparation of the full draft joint strategy and accompanying action plan, which is scheduled to be released in December 2016.
Comments are sought on the proposed overarching outline that will frame the joint strategy. Additional suggestions will be reviewed as they relate to the proposed structure of the document.
Following is a proposed high-level and draft outline intended to guide the scope and content of the Joint U.S.-Canadian Electric Grid Strategy. DOE seeks public comments on all aspects of this draft outline. The proposed outline is presented here in five parts: (1) Introduction and Context for the Joint U.S.-Canadian Electric Grid Strategy; (2) Goal 1: Protect Today's Grid and Enhance Preparedness; (3) Goal 2: Manage Contingencies and Enhance Response and Recovery; (4) Goal 3: Build a More Secure and Resilient Future Grid; and (5) Conclusion.
The introductory and context-setting sections of the joint strategy will describe the context for the joint strategy.
This section will outline opportunities to avoid, deter, and mitigate risks before they impact the grid. This includes information sharing between and among owners, operators, public, private and third-party participants whose protection of critical assets would benefit from actionable threat and hazard information and would provide information utilization for prudent and efficient security investments. This section will also highlight the importance of coordinating ongoing law enforcement, emergency management, reliability coordination, and monitoring and detection activities, the practice of which will improve protection capabilities.
This section will also address the method of preparedness that identifies can't-lose aspects of the system to mitigate the outer limit of tolerable impacts to the grid. This section will address major isolated as well as potentially cascading events that create out-and-out system failure or balloon into major regional or multi-system impacts. This section will examine how to create necessary incentives and investments to engage the protective measures for outlier events. The section will close by examining the electric grid's interdependencies with other critical systems and functions of the nations' economies and societies. Given our economic and social reliance on electricity, the strategy will identify the importance of securing the grid in the
i. Enhance information sharing between government and industry.
ii. Build organizational capacity to improve government, and industry information sharing and support to improve management of risk critical to the success of business mission and goals.
i. Improve tools, processes, and coordination among relevant government entities and industries for monitoring, detecting, analyzing, reporting, defending and mitigating threats to the electric grid.
i. Protect critical assets from relevant adversarial, natural, and technological threats to prevent and mitigate power loss and system failure.
ii. Develop guiding principles for automatic and manual means of preventing cascading blackouts (System Operations).
i. Align utility incentives for planning and investment with regulatory processes and tools for prudent cost recovery, including tools for security valuation.
i. Mitigate and reduce security risks/vulnerabilities caused by interdependence between grid technologies and other infrastructures, including telecom, water, and natural gas.
ii. Identify and manage impacts to other critical societal functions (
This section will address response and recovery options during and after an incident, examining public and private resources available, including through mutual assistance efforts for physical and cyber capabilities. This section will also highlight the complexity and potential issues with supply chains, which are compounded in an emergency. Finally, this section will highlight the importance of adaptation through recovery and rebuilding efforts, restoring capabilities through smarter, more efficient, and forward-looking solutions.
i. Enhance public and private resources for response to and recovery from major loss-of-power events.
i. Foster robust mutual assistance programs for physical grid assets, and develop a cybersecurity mutual assistance program.
i. Address effects from power outages, such as loss of services.
i. Adapt via recovery to result in more resilient investments, practices and processes.
The final section of the strategy will take on the challenge and opportunities to adapting through recovery efforts, underscoring the end-goal of grid resilience. The first part of the final section will explore post-incident actions in the context of evolving grid design, technologies, and a changing climate (that is, the potential impact of more frequent and severe natural disasters). The first part of this section will also address the opportunities to develop and advance the deployment of tools and technologies to address the security vulnerabilities addressed in this strategy.
The second part of this final section will outline opportunities to integrate security and resilience into planning, investment, regulatory- and policy-decision making for joint, cross-border security goals. This includes enhancing modeling and risk analysis capabilities to characterize vulnerabilities for decision-making and investments, suggesting ways to align utility and market incentives, and addressing workforce risks and opportunities for evolving technical knowledge needs. Finally, this section will point to the importance of pursuing optimal domestic security goals to coordinate cross-border where possible, and noting where domestic-specific goals do not lend themselves to joint coordination.
i. Identify, understand, and, to the extent possible, neutralize emerging threats (including through supply chains).
ii. Ensure that continued integration of grid and IT infrastructures accounts for the security benefits and challenges of that enhanced integration.
iii. Meet national security goals in a changing climate and energy landscape.
Improve preparedness in the context of increased natural disaster intensity and frequency and
Integrate security considerations into energy policy making, as well as utility and project planning, design, and implementation.
i. Ensure that the technological and institutional and architectural evolution of the grid enhances security and resilience.
ii. Be resilient to, and secure against, a range of grid threats.
iii. Coordinate with industry and operator practices to detect and mitigate grid anomalies quickly and effectively.
i. Enhance modeling and risk analysis capabilities to better characterize grid vulnerabilities, understand impacts of loss-of-power events, and support risk-informed decisions, including investments.
ii. Align utility and market participant incentives for planning and investment with regulatory processes and tools for prudent cost recovery, including tools for security valuation.
iii. Continue to pursue optimal domestic planning, investment, regulatory- and policy-decision making for security and resilience, noting where domestic-specific approach do not lend themselves to joint coordination.
iv. Address the need to reinforce existing and develop new workforce capabilities.
The conclusion of the strategy will summarize major findings and highlight the way forward.
DOE seeks public comments on all of the draft outline sections described above for the Joint U.S.-Canadian Electric Grid Strategy.
Presidential Policy Directive 21—Critical Infrastructure Security and Resilience (PPD-21), Presidential Policy Directive 8—National Preparedness (PPD-8), Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94) and Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act (Pub. L. 93-288) as amended.
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of filing.
On June 30, 2016, C4GT, LLC, as owner and operator of a new baseload electric generating powerplant, submitted a coal capability self-certification to the Department of Energy (DOE) pursuant to the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended, and DOE regulations. FUA and regulations thereunder require DOE to publish a notice of filing of self-certification in the
Copies of coal capability self-certification filings are available for public inspection, upon request, in the Office of Electricity Delivery and Energy Reliability, Mail Code OE-20, Room 8G-024, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585.
Christopher Lawrence at (202) 586-5260.
Title II of FUA, as amended (42 U.S.C. 8301
The following owner of a proposed new baseload electric generating powerplant has filed a self-certification of coal-capability with DOE pursuant to FUA section 201(d) and in accordance with DOE regulations in 10 CFR 501.60, 61:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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:
By order issued in this proceeding on June 1, 2016,
In the June 1 Order, the Commission accepted, subject to condition and further compliance, California Independent System Operator Corporation's proposal to implement an interim set of measures to address limitations in the natural gas delivery system due to the limited operability of the Aliso Canyon natural gas storage facility in southern California. The Commission directed its staff to convene a technical conference to facilitate discussion regarding the efficacy of these measures and the need for additional and/or longer-term measures to address any ongoing limitations at the Aliso Canyon facility.
Further details of the conference will be specified in a subsequent notice. All interested persons may attend the conference, and registration is not required. However, in-person attendees are encouraged to register on-line at
This conference will be transcribed and webcasted. Transcripts will be available immediately for a fee from Ace Reporting Company (202) 347-3700). A link to the webcast of this event will be available in the Commission Calendar of Events at
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this technical conference, please contact Virginia Castro at (202) 502-8491,
Take notice that on June 29, 2016, Texas Eastern Transmission, LP (Texas Eastern), 5400 Westheimer Court, Houston, Texas 77056, filed an application pursuant to section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations seeking authority to construct, own and operate the Bayway Lateral which consists of approximately 2,300 feet of 24-inch-diameter lateral pipeline facilities and related appurtenances to enable Texas Eastern to provide up to 300,000 dekatherms per day (Dth/d) of firm transportation service to Phillips 66 Company's Bayway Refinery and the co-located cogeneration plant owned by Cogen Technologies Linden Venture, L.P. located in Linden, New Jersey (Bayway Lateral Project), all as more fully set forth in the application. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Any questions regarding the proposed project should be directed to Berk Donaldson, General Manager, Rates and Certificates, at Texas Eastern Transmission, LP, P.O. Box 1642, Houston, Texas 77251-1642 or at (713) 627-4488 (phone), or (713) 627-5947 (facsimile).
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This is a supplemental notice in the above-referenced proceeding Buena Vista Energy 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 August 3, 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:
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,
On May 4, 2016, Energy Resources USA, Inc. filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of a hydropower project located at the Commonwealth of Kentucky's Kentucky River Lock and Dam #8, located on the Kentucky River in Garrard County, Kentucky. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) The existing 309-foot-long, 31-foot-high lock and dam, including an inoperable stone masonry lock; (2) three 3.96-foot-high, 87.50-foot-long hydraulic flashboards to be installed on the crest of the 262.5-foot-long spillway; (3) a reservoir with a surface area of 573 acres and a storage capacity of 14,020 acre-feet at a normal surface elevation of 31 feet mean sea level (msl); (4) a 770-foot-long, 300-foot-wide intake channel with a 85-foot-long retaining wall; (5) a 131-foot-long, 82-foot-wide powerhouse, to be built adjacent to the spillway end of the dam, containing two generating units with a total capacity of 11 megawatts; (6) a 1000-foot-long, 220-foot-wide tailrace with a 40-foot-long retaining wall; (7) a 4.16/69 kilo-Volt (kV) substation; and (8) a 3-mile-long, 69 kV transmission line. The proposed project would have an average annual generation of 59,180 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
This is a supplemental notice in the above-referenced proceeding of Brady Wind II, 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 August 3, 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 Brady Wind, 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 August 3, 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, on July 8, 2016, Fluke Corporation (Fluke) filed a Petition for Review of Denial of Adjustment Request, pursuant to section 504(b) of the Department of Energy Organization Act, 42 U.S.C. 7194(b), and section 385.1004 of the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR 385.1004. Fluke's petition requests review of the June 8, 2016 Decision and Order issued in Case Number EXC-16-0006 by the Department of Energy's Office of Hearings and Appeals. In addition, Fluke is concurrently requesting a hearing in accordance with section 385.1006 of the Commission's Rules of Practice and Procedure, 18 CFR 385.1006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
On May 04, 2016, Energy Resources USA, Inc. filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of a hydropower project located at the Kentucky River Authority's Kentucky River Lock and Dam #10, located on the Kentucky River in Clark County, Kentucky. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) The existing 890-foot-long, 37-foot-high concrete lock and dam; (2) three 3.97-foot-high, 82-foot-long hydraulic flashboards to be installed on the crest of the 246-foot-
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
On April 20, 2016, the Marine Renewable Energy Collaborative of New England filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Cape Cod Canal and Bourne Tidal Test Site (Cape Cod Canal Test Site or project) to be located on the Cape Cod Canal, near the Town of Bourne, in Barnstable County, Massachusetts. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' permission.
The proposed project would consist of: (1) A 45-foot-high, 23-foot-wide support structure; (2) a 25-kilowatt turbine-generator unit; (3) a 500 to 7,500-foot-long, 13.2-kilovolt (kV) transmission; and (4) appurtenant facilities. The estimated average annual generation of the project would be 54.7 gigawatt-hours. The project would occupy approximately 0.5 acres of federal land under the jurisdiction of the U.S. Army Corps of Engineers.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that during the month of June 2016, the status of the above-captioned entities as Exempt Wholesale Generators became effective by
On July 1, 2016, the Community of Elfin Cove, DBA Elfin Cove Utility Commission (Elfin Cove) filed an application for a successive preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), to study the feasibility of the proposed Crooked Creek and Jim's Lake Hydroelectric Project (project) to be located on Crooked Creek and Jim's Lake, 70 miles west of Juneau, in the unincorporated Sitka Recording District, Alaska. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of two developments, the Upper System and the Lower System.
The Upper System would consist of: (1) A 20-foot-long, 4-foot-wide, 4-foot-tall diversion structure to divert up to 5 cubic feet per second (cfs) from Crooked Creek; (2) a 1,200-foot-long, 1-foot-diameter buried penstock; (3) a 20-foot-long, 20-foot-wide powerhouse containing a 35-kilowatt (kW) crossflow turbine/generator; (4) a 50-foot-long, 8-foot-wide, 3-foot-deep cobble-lined tailrace discharging flows into Jim's Lake; and (5) appurtenant facilities.
The Lower System would consist of: (1) A 220-foot-long, 20-foot-high rock-fill embankment dam and intake at the outlet to Jim's Lake; (2) a 2,050-foot-long, 1.2-foot-diameter buried penstock; (3) a 24-foot-long, 24-foot-wide powerhouse containing a 105-kW Pelton turbine/generator; (4) a 150-foot-long, 8-foot-wide, 3-foot-deep cobble-lined tailrace discharging flows into Port Althorp; and (5) appurtenant facilities.
The 300-foot-long, 7.2/12.47 kV buried transmission line from the upper powerhouse would converge with the 2,800-foot-long, 7.2/12.47 kV buried transmission line from the lower powerhouse into a single 8,400-foot-long, 7.2/12.47 kV buried transmission line extending to Elfin Cove's existing 7.2/12.47-kV distribution network.
The estimated annual generation of the project would be 655.5 megawatt-hours. The project would be partially located on 60 acres of federal lands managed by the U.S. Forest Service in the Tongass National Forest.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Take notice that on July 1, 2016, High Point Gas Transmission, LLC, 1400 16th Street, Suite 310, Denver, Colorado 80202, filed in Docket No. CP16-474-000 an application pursuant to section 7(b) of the Natural Gas Act (NGA) for authorization to abandon by sale to Cayenne Pipeline, LLC (Cayenne) approximately 61.3 miles of 12-22-inch-diameter pipeline facilities in Plaquemines and St. Bernard Parishes, Louisiana. Upon completion of the sale, Cayenne will make certain changes to the facilities to enable it to transport natural gas liquids, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Any questions concerning these applications may be directed to Dennis J. Kelly, Senior Counsel, High Point Gas Transmission, LLC, 1400 16th Street, Suite 310, Denver, Colorado 80202, by telephone at (720) 457-6076.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the Commission received the following electric corporate filings:
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
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.
EPA has received a specific exemption request from the New Mexico Department of Agriculture to use the insecticide sulfoxaflor (CAS No. 946578-00-3) on pecans to control the black pecan aphid. The applicant proposes a use of a pesticide, sulfoxaflor, which is now considered to be unregistered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) because of the vacature of all sulfoxaflor registrations by the United States District Court for the Central District of California. In accordance with 40 CFR 166.24(a)(7), EPA is soliciting public comment before making the decision whether or not to grant the exemption.
Comments must be received on or before August 4, 2016.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2016-0379, by one of the following methods:
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•
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Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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Under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136p), at the discretion of the EPA Administrator, a federal or state agency may be exempted from any provision of FIFRA if the EPA Administrator determines that emergency conditions exist which require the exemption. The New Mexico Department of Agriculture has requested the EPA Administrator to issue a specific exemption for the use of sulfoxaflor to be applied to pecan orchards to control black pecan aphid. Information in accordance with 40 CFR part 166 was submitted as part of this request. The applicant's submission, which provides an explanation of the emergency situation as well as the proposed use pattern, can be found at
This notice does not constitute a decision by EPA on the application itself. The regulations governing FIFRA section 18 require publication of a notice of receipt of an application for a specific exemption proposing a use of a pesticide that has been subject to a judicial vacature. Further, this notice provides an opportunity for public comment on the application. The Agency, will review and consider all comments received during the comment period in determining whether to issue the specific emergency exemption requested by the New Mexico Department of Agriculture.
7 U.S.C. 136
The following consent agenda has been deleted from the list of items scheduled for consideration at the Thursday, July 14, 2016, Open Meeting and previously listed in the Commission's Notice of July 7, 2016. The consent agenda has been adopted by the Commission.
The Commission will consider the following subjects listed below as a consent agenda and these items will not be presented individually:
1.
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.
Notice is given that a complaint has been filed with the Federal Maritime Commission (Commission) by World Imports, Ltd., World Imports Chicago, LLC, and World Imports South, LLC (collectively “World Imports”), hereinafter “Complainants,” against OEC Group New York (“OEC”), hereinafter “Respondent.” Complainants state that they are corporations “formerly engaged in the business of buying furniture wholesale and selling it to retail distributors.” Complainant alleges that Respondent is a New York corporation and a “freight forwarder/logistics provider” providing non-vessel-operating common carrier services.
Complainants allege that Respondent “was in possession of multiple landed shipments of merchandise for delivery” to Complainants but failed to release those goods on the basis of freight charges owed to Respondent for goods Respondent had “previously delivered and unconditionally released.” Further Complainant alleges that Respondent has “transmogrified what would have been an unsecured claim in World Imports' bankruptcy proceedings into a secured maritime lien.” Complainant alleges that Respondent has violated section 10(d)(1) of the Shipping Act, 46 U.S.C. 41102(c), which provides that a common carrier “may not fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property.”
Complainant requests the following relief: “an order be made commanding OEC to: (1) Cease and desist from the aforesaid violations; (2) establish and put in force such practices as the Commission determines to be lawful and reasonable; (3) to pay to World Imports by way of reparations for the unlawful conduct herein described the sum of $172,075.50, with interest and attorney's fees or such other sum as the Commission may determine to be proper as an award of reparation; (4) to reimburse World Imports any sum it may be ordered to pay to OEC as a secured creditor in World Imports' bankruptcy case, insofar as such sums reflect charges, fees, or the like demanded in violation of Section (10)(d)(1); and (5) that such other and
The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding has been assigned to the Office of Administrative Law Judges. The initial decision of the presiding officer in this proceeding shall be issued by July 14, 2017, and the final decision of the Commission shall be issued by January 29, 2018.
Office of Federal High-Performance Green Buildings, General Services Administration (GSA).
Notice of solicitation of nominations for membership.
The Administrator of the GSA established the Green Building Advisory Committee on June 20, 2011 (76 FR 118) pursuant to Section 494 of the Energy Independence and Security Act of 2007 (42 U.S.C. 17123, or EISA), in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App. 2). As the two-year commitments of some members of the Committee are expiring, this notice solicits additional qualified candidates for membership.
Mr. Ken Sandler, Office of Federal High Performance Green Buildings, GSA, 202-219-1121.
The Green Building Advisory Committee (hereafter, “the Committee”) provides advice to GSA as a mandatory Federal advisory committee, as specified in EISA and in accordance with the provisions of FACA. Under this authority, the Committee advises GSA on how the Office of Federal High-Performance Green Buildings can most effectively accomplish its mission. Extensive information about the Committee, including current members, is available on GSA's Web site at
“(i) State and local governmental green building programs;
(ii) Independent green building associations or councils;
(iii) Building experts, including architects, material suppliers, and construction contractors;
(iv) Security advisors focusing on national security needs, natural disasters, and other dire emergency situations;
(v) Public transportation industry experts; and
(vi) Environmental health experts, including those with experience in children's health.”
EISA further specifies: “the total number of non-Federal members on the Committee at any time shall not exceed 15.”
At a minimum, prospective members must have:
No person who is a Federally-registered lobbyist may serve on the Committee, in accordance with the Presidential Memorandum “Lobbyists on Agency Boards and Commissions” (June 18, 2010).
The current intergovernmental forms will expire in February 2017. The revised forms included in this submission to OMB incorporate many of the revisions requested by commenters during the 60-day comment period, which started August 4, 2015 (
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW., Washington, DC 20201. Attention Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration, Department of Health and Human Services, is announcing a decrease in user fees charged to individuals and entities authorized to request information from the National Practitioner Data Bank (NPDB). The new fee will be $2.00 for both continuous and one-time queries and $4.00 for self-queries. The reduction in NPDB user fees is intended to encourage new users while ensuring sufficient funds to the full cost of NPDB operations and retain appropriate cash reserves. The goals of the cash reserves are to mitigate risks, cover operational costs should revenue decrease, and cover the cost of reasonable enhancement and maintenance of the NPDB management system.
HRSA has the standard operating procedure of reviewing NPDB user fees every 2 years. The biennial review of NPDB user fees offers HRSA the opportunity to evaluate its reserves as well as revenue relative to costs. Further, the review provides essential information on whether the fee rates and authorized activities are aligned with actual program costs and activities,
This change will be effective October 1, 2016.
Director, Division of Practitioner Data Bank, Bureau of Health Workforce, Health Resources and Services Administration, 5600 Fishers Lane, Room 11N37, Rockville, MD 20857; telephone number: (301) 443-2300.
The current fee structure ($3.00/continuous query enrollment, $3.00/one-time query, and $5.00/self-query) was announced in the
The NPDB is authorized by the Health Care Quality Improvement Act of 1986 (the Act), Title IV of Public Law 99-660, as amended (42 U.S.C. 11101
42 U.S.C. 11137(b)(4), 42 U.S.C. 1396r-2(e), and 42 U.S.C. 1320a-7e(d) authorize the establishment of fees for the costs of processing requests for disclosure of such information. Final regulations at 45 CFR part 60 set forth the criteria and procedures for information to be reported to and disclosed by the NPDB. In determining any changes in the amount of user fees, the Department uses the criteria set forth in section 60.19(b) of the regulations. Section 60.19(b) states:
“The amount of each fee will be determined based on the following criteria:
(1) Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement,
(2) Physical overhead, consulting, and other indirect costs (including materials and supplies, utilities, insurance, travel, and rent and depreciation on land, buildings, and equipment),
(3) Agency management and supervisory costs,
(4) Costs of enforcement, research, and establishment of regulations and guidance,
(5) Use of electronic data processing equipment to collect and maintain information—the actual cost of the service, including computer search time, runs and printouts, and
(6) Any other direct or indirect costs related to the provision of services.”
The Department will continue to review the user fees periodically as required by Office of Management and Budget Circular Number A-25 and will revise fees as necessary. Any future changes in user fees and their effective dates will be announced in the
The Health Resources and Services Administration (HRSA) is requesting nominations to fill vacancies on the Advisory Committee on Training in Primary Care Medicine and Dentistry (ACTPCMD). ACTPCMD is authorized by Section 749 of the Public Health Service (PHS) Act (42 U.S.C. 293l), as amended. The Advisory Committee is governed by provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C. Appendix 2), as amended, which sets forth standards for the formation and use of advisory committees, and applies to the extent that the provisions of FACA do not conflict with the requirements of PHS Act Section 749.
The agency will receive nominations on a continuous basis.
All nominations should be submitted to Advisory Council Operations, Bureau of Health Workforce, HRSA, 11W45C, 5600 Fishers Lane, Rockville, Maryland 20857. Mail delivery should be addressed to Advisory Council Operations, Bureau of Health Workforce, HRSA, at the above address, or via email to:
Joan Weiss, Ph.D., RN, CRNP, FAAN, Designated Federal Official, ACTPCMD at 301-443-0430 or email at
ACTPCMD provides advice and recommendations to the Secretary of the U.S. Department of Health and Human Services (Secretary) and ranking members of the U.S. Senate Committee on Health, Education, Labor and Pensions, and the U.S. House of Representatives Committee on Energy and Commerce on matters concerning policy, program development, and other matters of significance concerning the activities under Sections 747 and 748, Part C of Title VII of the PHS Act, as amended. Meetings are held twice a year.
Specifically, HRSA is requesting nominations for voting members of ACTPCMD representing: Family medicine, general internal medicine, general pediatrics, physician assistant, general dentistry, pediatric dentistry, public health dentistry, and dental hygiene programs. Among these nominations, residents and/or fellows from these programs are encouraged to apply. In making such appointments, the Secretary will ensure a fair balance between the health professions, a broad geographic of representation of members, and a balance between urban and rural members. Members will be appointed based on their competence, interest, and knowledge of the mission of the profession involved. The Secretary will also ensure the adequate representation of women and minorities.
The Department of Health and Human Services (HHS) will consider nominations of all qualified individuals with the areas of subject matter expertise noted above. Individuals may nominate themselves or other individuals, and professional associations and organizations may nominate one or more qualified persons for membership. Nominations shall state that the nominee is willing to serve as a member of ACTPCMD and appears to have no conflict of interest that would preclude ACTPCMD membership. Potential candidates will be asked to provide detailed information concerning financial interests, consultancies, research grants, and/or contracts that might be affected by recommendations of ACTPCMD to permit evaluation of possible sources of conflicts of interest.
A nomination package should include the following information for each nominee:
(1) A letter of nomination from an employer, a colleague, or a professional organization stating the name, affiliation, and contact information for
(2) A letter of self-interest stating the reasons the nominee would like to serve on ACTPCMD;
(3) A biographical sketch of the nominee and a copy of his/her curriculum vitae; and
(4) The name, address, daytime telephone number, and email address at which the nominator can be contacted.
Nominations will be considered as vacancies occur on ACTPCMD. Nominations should be updated and resubmitted every 3 years to continue to be considered for committee vacancies.
HHS strives to ensure that the membership of HHS federal advisory committees is balanced in terms of points of view represented and the committee's function. The Department encourages nominations of qualified candidates from all groups and locations. Appointment to ACTPCMD shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.
Department of Health and Human Services, Office of the Secretary, Office of the Assistant Secretary for Health, Office on Women's Health.
Notice.
Pursuant to 42 U.S.C. 300u and 42 U.S.C. 237a (§ 3509 of the Patient Protection and Affordable Care Act), notice is given that the Office on Women's Health (OWH) is soliciting proposals from entities and organizations for the opportunity to sustain the implementation of the
Representatives of eligible organizations should submit expressions of interest no later than 6:00 p.m. EST on August 19, 2016.
Expressions of interest should be directed electronically to
Questions may be directed to Jill Wasserman, program lead for
OWH launched the
• National reach;
• established presence with youth, especially teenagers;
• experience in communicating sensitive issues;
• mission or activities related to improving health among the public, especially among teens;
• ability to reach teens with campaign messages, especially those at high-risk for STDs;
• presence on digital platforms to support message dissemination to teens and their influencers;
• experience in managing Web sites;
• ability to host, maintain, and update the existing
• experience in working with partners to disseminate messages;
• access to subject matter experts in sexual health and teens; and
• experience leading public awareness and education campaigns.
Expressions of interest should outline eligibility in response to the qualifications bulleted above and be no more than two pages in length.
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for renewal of the approved information collection assigned OMB control number 0937-0025, scheduled to expire on November 30, 2016. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before July 8, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 0937-0025.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Mental Health Council.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Office of the Secretary, Interior.
Notice.
The Department of the Interior (Interior) is hosting a listening session and tribal consultation sessions with Indian Tribes, appropriate Indian organizations, and individual Indians on the implementation of Title III of the Indian Trust Asset Reform Act recently passed by Congress. Topics to be addressed in these sessions include the establishment of an Under Secretary for Indian Affairs, the transition of certain functions of the Office of the Special Trustee for American Indians (OST) to other entities within Interior, the identification of options for a single entity to conduct appraisals and valuations of Indian trust property, and draft minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property.
Please see the
Please submit written comments by email to
Ms. Debra DuMontier, Office of the Special Trustee for American Indians at
On June 22, 2016, President Obama signed into law the Indian Trust Asset Reform Act, Public Law 114-178. Title III of this Act:
• Allows the Secretary of the Interior to establish an Under Secretary for Indian Affairs who is to report directly to the Secretary of the Interior and coordinate with OST to ensure an orderly transition of OST functions to an agency or bureau within Interior;
• Requires Interior to prepare a transition plan and timetable for how identified OST functions might be moved to other entities within the Department of the Interior;
• Requires appraisals and valuations of Indian trust property to be administered by a single administrative entity within Interior; and
• Requires Interior to establish minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allows an appraisal or valuation that meets those
The Department is hosting listening sessions and consultation sessions with Indian tribes and individual Indians on each of the topics identified above on the following dates and in certain locations. More specific information on the location identifying the venue will be posted as soon as it becomes available at
Additional information, including possible OST functions that may be transferrable to other entities within the Department and potential options for a single entity within the Department that might perform appraisal and valuation services for Indian trust property, is also available at the Web site listed above (
On the basis of the record
The Commission, pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)), instituted these investigations effective June 3, 2015, following receipt of petitions filed with the Commission and Commerce by United States Steel Corp. (Pittsburgh, Pennsylvania), Nucor Corp. (Charlotte, North Carolina), Steel Dynamics Inc. (Fort Wayne, Indiana), California Steel Industries (Fontana, California), ArcelorMittal USA LLC (Chicago, Illinois), and AK Steel Corp. (West Chester, Ohio). The final phase of the investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of certain corrosion-resistant steel products from China, India, Italy, and Korea were subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)) and imports of certain corrosion-resistant steel products from China, India, Italy, Korea, and Taiwan were dumped within the meaning of 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)). It completed and filed its determinations in these investigations on July 15, 2016. The views of the Commission are contained in USITC Publication 4620 (July 2016), entitled
By order of the Commission.
Federal Bureau of Investigation, Department of Justice.
60-Day notice.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division (CJIS) will submit the following Information Collection Request to the Office of Management and Budget (OMB) for review and clearance in accordance with the established review procedures of the Paperwork Reduction Act of 1995.
The purpose of this notice is to allow for an additional 30 days for public comment until September 19, 2016.
All comments, suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Mr. Samuel Berhanu, Unit Chief, Federal Bureau of Investigation, CJIS Division, Module E-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306; facsimile (304) 625-3566.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques of other forms of information technology,
Overview of this information collection:
(1)
(2)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE., Room 3E-405B, Washington, DC 20530.
On July 13, 2016, the Department of Justice lodged a proposed Third Amended Consent Decree with the United States District Court for the Western District of Washington in the lawsuit entitled
This amended Consent Decree resolves disputes with Point Ruston LLC, and amends work and payment schedules established in the Second Amendment to the Asarco Tacoma Smelter Consent Decree, which the Court entered on October 23, 2006. The Consent Decree involves the Asarco Tacoma Smelter and Sediments/Groundwater Operable Units of the Commencement Bay Nearshore/Tideflats Superfund Site. Under the terms of this amendment, among other agreements: (1) New deadlines are set for the completion of the remedial action at the Site; (2) a payment schedule is established to address unpaid past oversight costs and other monies due; and (3) a process is established that allows Point Ruston to seek relief from the remedial action work schedule should it be prepared to commercially develop certain portions of the Site.
The publication of this notice opens a period for public comment on the Third Amended Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Third Amended Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $71.00 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits, the cost is $19.50.
12:00 p.m., Wednesday, July 27, 2016.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC.
Closed.
Determination on six original jurisdiction cases.
Jacqueline Graham, Staff Assistant to the Chairman, U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC 20530, (202) 346-7010.
11:00 a.m., July 27, 2016.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC.
Open.
Approval of May 11, 2016 minutes.
Jacqueline Graham, Staff Assistant to the Chairman, U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC 20530, (202) 346-7010.
Department of Labor.
Notice.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, “Claim for Reimbursement-Assisted Reemployment,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before August 19, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Claim for Reimbursement-Assisted Reemployment information collection. The Federal Employees' Compensation Act (FECA), in relevant part, provides vocational rehabilitation services to eligible injured Federal employees to facilitate their return to work.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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,
Department of Labor.
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Emergency Mine Evacuation,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before August 19, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Emergency Mine Evacuation information collection requirements contained in regulations 30 CFR parts 48 and 75 to improve emergency evacuation and rescue in underground coal mines. These regulations include requirements for immediate accident notification applicable to all mines. In addition, the regulations contain reporting and record keeping requirements for training, including evacuation drills; self-contained self-rescuer storage, training, and use; and installation and maintenance of lifelines in underground coal mines. Federal Mine Safety and Health Act of 1977 sections 101(a) and 103(h) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on August 31, 2016. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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,
The National Science Board's Committee on Strategy and Budget, 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 notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Tuesday, July 26, 2016 from 5:30—6:30 p.m. EDT.
(1) Committee Chair's Opening Remarks; (2) Discussion of Committee Interests & Goals; (3) Strategic Plan Overview and Process.
Open.
This meeting will be held by teleconference at the National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A public audio stream will be available. The link is:
Please refer to the National Science Board Web site
National Science Foundation.
Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at title 45 part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by August 19, 2016. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Division of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Nature McGinn, ACA Permit Officer, at the above address or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
ASPA entry. The applicant is an artist supported by the National Science Foundation's Antarctic Artists & Writers Program. The applicant would like to visit Cape Royds, ASPA 121, to make audio recordings of Adelie penguins that will be incorporated into musical compositions as a means to share the Antarctic natural world with the general public.
ASPA 121, Cape Royds, Ross Island.
October 19-November 20, 2016.
Pursuant to its authority under section 5051 of Public Law 100-203, Nuclear Waste Policy Amendments Act (NWPAA) of 1987, and in accordance with its mandate to review the technical and scientific validity of U.S. Department of Energy (DOE) activities related to implementing the Nuclear Waste Policy Act of 1982, the U.S. Nuclear Waste Technical Review Board will meet in Washington, DC on August 24, 2016, to review DOE activities related to integrating the management and disposal of the many different designs of canisters for spent nuclear fuel (SNF) and high-level radioactive waste (HLW) that are currently in service and under development.
The meeting will be held at the Westin Washington, DC City Center Hotel, 1400 M Street NW., Washington, DC 20005, 202-429-1700. A block of rooms has been reserved for meeting attendees at a rate of $149.00 per night.
The meeting will begin at 8:00 a.m. on Wednesday, August 24, 2016, and is scheduled to adjourn at 5:00 p.m. Among the topics to be discussed at the meeting are descriptions of the canister types currently used and being developed for storing and transporting SNF and HLW, DOE's efforts to create an integrated program for managing and disposing of SNF and HLW canisters, and nuclear industry perspectives on DOE's efforts to develop standardized canisters for commercial SNF. The meeting agenda will be available on the Board's Web site:
The meeting will be open to the public, and opportunities for public comment will be provided before the lunch break and at the end of the day. Those wanting to speak are encouraged to sign the “Public Comment Register” at the check-in table. Depending on the number of people who sign up to speak, it may be necessary to set a time limit on individual remarks. However, written comments of any length may be submitted, and all comments received in writing will be included in the record of the meeting, which will be posted on the Board's Web site after the meeting. The meeting will be webcast at:
The Board was established in the NWPAA as an independent federal agency in the Executive Branch to evaluate the technical and scientific validity of DOE activities related to management and disposal of SNF and HLW and to provide objective expert advice to Congress and the Secretary of Energy on these issues. Board members are experts in their fields and are appointed to the Board by the President from a list of candidates submitted by the National Academy of Sciences.
The Board reports its findings, conclusions, and recommendations to Congress and the Secretary of Energy. All Board reports, correspondence, congressional testimony, and meeting transcripts and related materials are posted on the Board's Web site. For information on the meeting agenda, contact Daniel Ogg:
Postal Regulatory Commission.
Notice.
The Commission is noticing 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.
2.
3.
4.
This Notice will be published in the
Section 2a of the Railroad Retirement Act (RRA) provides for payments of age and service, disability, and supplemental annuities to qualified employees. An annuity cannot be paid until the employee stops working for a railroad employer. In addition, the age and service employee must relinquish any rights held to such jobs. A disabled employee does not need to relinquish employee rights until attaining Full Retirement Age, or if earlier, when their spouse is awarded a spouse annuity. Benefits become payable after the employee meets certain other requirements, which depend on the type of annuity payable. The requirements for obtaining the annuities are prescribed in 20 CFR 216 and 220.
To collect the information needed to help determine an applicant's entitlement to, and the amount of, an employee retirement annuity the RRB uses Forms AA-1,
The AA-1 application process obtains information from an applicant about their marital history, work history, military service, benefits from other governmental agencies, railroad pensions and Medicare entitlement for either an age and service or disability annuity. An RRB representative interviews the applicant either at a field office, an itinerant point, or by telephone. During the interview, the RRB representative enters the information obtained into an on-line information system. Upon completion of the interview, the on-line information system generates Form AA-1cert,
Form AA-1d,
The RRB recently received short-term approval of a Request for Emergency Clearance from the Office of Management and Budget for this information collection. In response to that request the RRB received comments from 3 railroad labor organizations commenting on the RRB's action. The comments centered on the collection of information associated with the following issues:
• The relinquishment of seniority rights;
• The reporting of volunteer and social/recreational activities as part of the adjudication of an application for disability;
• Whether an applicant had filed or expected to file a lawsuit or claim against a person or company for a personal injury that resulted in the payment of sickness benefits by the RRB; and
• The use of facilitators who assist disability applicants in the completion of their applications.
RRB staff thoroughly evaluated the comments received and responded to the railroad labor organizations. In response to those comments, the RRB proposes the following changes to Forms AA-1 and AA-1d:
• deletion of Item 35a-d from Form AA-1, regarding the relinquishment of seniority rights;
• the relocation of current Items 52-53 from Form AA-1d to proposed Items 48a-b on Form AA-1, regarding whether an applicant had filed or expected to file a lawsuit or claim against a person or company for a personal injury that resulted in the payment of sickness benefits by the RRB, as the potential for uncollected sickness benefits can apply to both a disability applicant as well as an applicant qualified for an age and service annuity.
Comparable revisions to electronic equivalent forms (AA-1cert and AA-1sum) are also being proposed. The RRB proposes no changes to Form G-204.
One response is requested of each respondent. Completion of the forms is required to obtain/retain a benefit.
On May 13, 2016, New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
NYSE proposes to remove as Exchange rules internal procedures regarding the use of fine income, which were approved by the Commission in 2007 (“Fine Income Procedures” or “Procedures”)
The Exchange proposes to delete the Fine Income Procedures, noting that the Exchange would continue to remain subject to the restrictions of Section 4.05, which, coupled with the Operating Agreement provisions governing the ROC,
Moreover, the Exchange believes that its disciplinary procedures, and specifically the appellate process contained therein, serve as “a powerful check on the improper exercise by Exchange regulatory staff of the power to fine members and member organizations.”
In support of its position that the protections in Section 4.05 are sufficient to ensure the proper use by the Exchange of fine income, the Exchange states that Section 4.05 is in fact “wider in scope than the Fine Income Procedures,” explaining that “because Section 4.05 encompasses all regulatory assets and income, not just fines, it ensures the proper use by the Exchange of a broader range of regulatory funds, by prohibiting their use for commercial purposes or distributions.”
The Exchange also believes that the circumstances that led to the creation of the Fine Income Procedures no longer exist.
Furthermore, NYSE explains that the proposed change would have the benefit of bringing the Exchange's restrictions on the use of regulatory assets and income into greater conformity with those of its affiliates, NYSE MKT LLC and NYSE Arca, Inc., and would be consistent with limitations on the use of regulatory assets and income of other self-regulatory organizations (“SROs”).
As noted above, the Commission received one comment letter on the proposed rule change.
The Exchange submitted a letter responding to the issues raised by the
With respect to the commenter's claim that the Exchange should be held to a higher standard than other SROs and should not be permitted to delete the Fine Income Procedures simply because it would bring NYSE closer in line with the limitations of other SROs, the Exchange explains that it cited to other SROs' provisions relating to use of fine income to demonstrate that there are mechanisms other than the Fine Income Procedures that the Commission has found appropriate for ensuring that an SRO uses its regulatory funds properly.
Regarding the commenter's statement that the Fine Income Procedures are a means to ensure the separation of the Exchange's business from its regulation, the Exchange states that it does not rely on the Fine Income Procedures to ensure the independence of its self-regulatory responsibilities and regulatory performance from its business interests, and instead notes how its corporate structure, including the required compositions of the Board, ROC, and CFR help to ensure the independence of its regulatory obligations.
With respect to the commenter's statement that the disciplinary process, and the appellate process in particular, alone does not provide sufficient safeguards against potential conflicts of interest, the Exchange disagrees with the commenter's assertion that the Fine Income Procedures provide a greater check on regulatory misbehavior than the appellate process.
The Exchange also addresses the commenter's statutory construction argument that deletion of the “more specific provision” (
Finally, the Exchange takes issue with the commenter's assertion that it did not address “what circumstances occurred that will not occur again.” The Exchange states that the Fine Income Procedures provided a more direct commitment by NYSE Regulation to ensure the proper exercise of NYSE Regulation's power to fine member organizations and the proper use by NYSE Regulation of fines collected.
After careful review, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
As the Exchange notes, it implemented the Fine Income Procedures in connection with the Archipelago Merger, which had the effect of demutualizing New York Stock Exchange, Inc. (the predecessor to New York Stock Exchange LLC) by separating NYSE's equity ownership from trading privileges and converting it to a for-profit entity.
As noted above, the commenter raises several concerns regarding the Exchange's proposal, including by asserting that the proposal was insufficient because it did not include rule text indicating the deletion of the Procedures. The Exchange responds that the Procedures are available in the Exchange's filing and on the Exchange's Web site. The Commission believes that, because the Fine Income Procedures were internal procedures of the Exchange and were not part of the Exchange's rulebook or governing documents, it was appropriate for the Exchange to include the Procedures in its Form 19b-4 describing the proposed rule change, which were published by the Commission as part of the Notice.
The commenter remarks that the NYSE should be “held to a higher standard” than other exchanges. In response, the Exchange states that, as a national securities exchange, treating it differently than any other national securities exchange based on its size, prominence or any of the other factors noted in the comment letter, among other things, would be contrary to just and equitable principles of trade.
The commenter also expresses the view that deleting the Fine Income Procedures would remove rules that serve to separate the Exchange's business function from its regulatory obligations, and that the Exchange's disciplinary process did not provide an adequate safeguard against “regulator misbehavior.” The Commission believes that the Exchange has adopted several measures to ensure the independence of its regulatory functions including, among other things, creating a ROC, which is composed entirely of directors of the Exchange who satisfy the Exchange's independence requirements, and the CFR, which is composed of Exchange members and directors who satisfy the Exchange's independence requirements.
The commenter further expresses concern that deleting the Fine Income Procedures may imply that the conduct banned by the Procedures no longer is prohibited. The Commission believes, however, that even with the deletion of the Fine Income Procedures, given the scope of Section 4.05, the Exchange would continue to be prohibited from using regulatory assets, fees, fines or penalties for other than regulatory purposes.
Finally, the commenter states that Exchange did not adequately describe why the circumstances that existed at the time the Fine Income Procedures were adopted no longer exist. The Commission notes that the Exchange's proposal states that NYSE Regulation no longer performs regulatory services on behalf of the Exchange.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt paragraph (c) to Exchange Rule 11.27 to describe changes to System
The text of the proposed rule change is available at the Exchange's Web site
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 parts of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, Bats BYX Exchange, Inc. (“BYX”), Chicago Stock Exchange, Inc., Bats EDGA Exchange, Inc. (“EDGA”), Bats EDGX Exchange, Inc. (“EDGX”), 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 “Participants”), filed with the Commission, pursuant to Section 11A of the Act
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 Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan.
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 Test Group 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. Accordingly, the Exchange adopted paragraph (a) of Rule 11.27 to require Members
The Exchange proposes to adopt paragraph (c) of Exchange Rule 11.27 to describe changes to System functionality necessary to implement the Plan. Paragraph (c) of Rule 11.27 would set forth the Exchange's specific procedures for handling, executing, re-pricing and displaying of certain order types and order type instructions applicable to Pilot Securities. Unless otherwise indicated, paragraph (c) of Rule 11.27 would apply to order types and order type instructions in Pilot Securities in Test Groups One, Two, and Three and not to orders in Pilot Securities included in the Control Group. The proposed changes include select and discrete amendments to the operation of: (i) BZX Market Orders; (ii) Market Pegged Orders; (iii) Mid-Point Peg Orders; (iii) [sic] Discretionary Orders; (iv) [sic] Non-Displayed Orders; (v) [sic] Market Maker Peg Orders; (vi) [sic] Supplemental Peg Orders; and (vii) [sic] orders subject to the Display-Price Sliding process.
In determining the scope of these proposed changes to implement the Plan, the Exchange carefully weighed the impact on the Pilot, System complexity, and the usage of such order types in Pilot Securities. These proposed changes are designed to directly comply with the Plan and to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. As discussed below, certain of these changes are also intended to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage of certain order types in Pilot Securities and/or their limited ability to execute under the Trade-at Prohibition. Therefore, the Exchange firmly believes that these changes will have little or no impact on the operation and data collection elements of the Plan. The Exchange further believes that the proposed rule
A BZX Market Order is an order to buy or sell a stated amount of a security that is to be executed at the NBBO when the order reaches the Exchange. BZX Market Orders shall not trade through Protected Quotations.
The Exchange proposes to amend the operation of Market Pegged Orders to reduce risk in its System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition in Test Group Three. A Pegged Order is a limit order that after entry into the System, the price of the order is automatically adjusted by the System in response to changes in the NBBO. A Pegged Order will peg to the NBB or NBO or a certain amount away from the NBB or NBO.
In Test Groups One and Two, the Exchange proposes to modify the behavior of Market Pegged Order when it is locked by an incoming BZX Post Only Order
The Exchange notes that Market Pegged Orders are aggressive by nature and believes executing the order in such circumstance is appropriate. The Exchange also notes that the proposed behavior for Market Pegged Orders in Test Groups One and Two is identical to the operation of orders with the Super Aggressive Routing instruction under Exchange Rule 11.13(b)(4)(C). When an order with a Super Aggressive instruction is locked by an incoming BZX Post Only Order or Partial Post Only at Limit Order that does not remove liquidity pursuant to Rule 11.9(c)(6) or Rule 11.9(c)(7), respectively, the order is converted to an executable order and will remove liquidity against such incoming order. In addition, like as proposed above, in no case would an order with a Super Aggressive instruction execute against an incoming BZX Post Only Order or Partial Post Only at Limit Order if an order with higher priority is on the BZX Book. The Exchange believes this change is reasonable and appropriate due to the limited usage of Market Pegged Orders in Pilot Securities, to avoid unnecessary additional System complexity, and to ensure the Market Pegged Order may execute in such circumstance.
The Exchange also proposes to not accept Market Pegged Orders in Test Group Three based on limited current usage, additional System complexity, and their limited ability to execute under the Trade-at Prohibition. Exchange Rule 11.27(a)(6)(D) sets forth the Trade-at Prohibition, which is the prohibition against executions by a Member 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,
A Mid-Point Peg Order is an order whose price is automatically adjusted by the System in response to changes in the NBBO to be pegged to the midpoint of the NBBO, or, alternatively, pegged to the less aggressive of the midpoint of the NBBO or one minimum price variation
The Exchange proposes to not accept Discretionary Orders in all Test Groups, including the Control Group, to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities. In sum, a Discretionary Order is a Limit Order with a displayed or non-displayed ranked price and size and an additional non-displayed “discretionary price”.
The Exchange proposes to re-price to the midpoint of the NBBO Non-Displayed Orders in Test Group Three that are priced in a permissible increment better than the midpoint of the NBBO. A Non-Displayed Order is a Market or Limit Order that is not displayed on the Exchange.
A Market Maker Peg Order is a Limit Order that is automatically priced by the System at the Designated Percentage (as defined in Exchange Rule 11.8) away from the then current NBB and NBO, or if no NBB or NBO, at the Designated Percentage away from the last reported sale from the responsible single plan processor in order to comply with the quotation requirements for Market Makers set forth in Exchange Rule 11.8(d).
The Exchange proposes to not accept Supplemental Peg Orders in Test Group Three in order to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition. A Supplemental Peg Order is a non-displayed Limit Order that posts to the BZX Book, and thereafter is eligible for execution at the NBB for buy orders and NBO for sell orders against routable orders that are equal to or less than the aggregate size of the Supplemental Peg Order interest available at that price.
Under the Display-Price Sliding process, an order eligible for display by the Exchange that, at the time of entry, would create a violation of Rule 610(d) of Regulation NMS by locking or crossing a Protected Quotation of an external market, will be ranked at the locking price in the BZX Book and displayed by the System at one minimum price variation (
As described above, Exchange Rule 11.27(a)(6)(D) sets forth the Trade-at Prohibition, which is the prohibition against executions by a Member 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, unless an exception applies. Orders that are priced to execute at the midpoint of the NBBO are exempt from the Trade-at Prohibition. Therefore, to increase the execution opportunities and qualify for the mid-point exception to the Trade-at Prohibition, the Exchange proposes to rank orders in Test Group Three that are subject to the Display-Price Sliding process at the midpoint of the NBBO in the BZX Book and display such orders one minimum price variation below the current NBO (for bids) or one minimum price variation above the current NBB (for offers).
The Exchange also proposes to cancel orders subject to Display-Price Sliding in Test Group Three that are only to be adjusted once and not multiple times in the event the NBBO widens and a contra-side Non-Displayed Order is resting on the BZX Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to the increased minimum quoting increments under the Plan, the Exchange is unable to safely re-price an order subject to single Display-Price Sliding in Test Group Three to the original locking price in such circumstances and doing so would add additional System complexity and risk. As discussed above, the Exchange proposes to rank orders in Test Group Three subject to the Display-Price Sliding process at the midpoint of the NBBO. In the event the NBBO changes such that an order subject to Display-Price Sliding would not lock or cross a Protected Quotation of an external market, the order will receive a new timestamp, and will be displayed at the order's limit price.
Currently, both Interpretation and Policy .03 to Rule 11.27(a) and Interpretation and Policy .11 to Rule 11.27(b) state that Rule 11.27 shall be in effect during a pilot period to coincide with the pilot period for the Plan (including any extensions to the pilot period for the Plan). The Exchange proposes to include this language at the beginning of Rule 11.27 and, therefore, proposes to delete both Interpretation and Policy .03 to Rule 11.27(a) and Interpretation and Policy .11 to Rule 11.27(b) as those provisions would be redundant and unnecessary. The Exchange also proposes to amend the last sentence of Rule 11.27(a)(4) to specify that the current permissible price increments are set forth under Exchange Rule 11.11, Price Variations.
If the Commission approves the proposed rule change, the proposed rule change will be effective upon Commission approval and shall 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 the proposed changes regarding BZX Market Orders, Mid-Point Peg Orders, Market Maker Peg Orders, and Display-Price Sliding are consistent with the Act because they are intended to modify the Exchange's System to comply with the provisions of the Plan, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act. To the extent that these proposals are intended to comply with the Plan, the Exchange believes that these proposals are in furtherance of the objectives of the Plan, as identified by the Commission, and is therefore consistent with the Act.
The Exchange also believes that its proposed changes to Market Pegged Orders, Discretionary Orders, Non-Displayed Orders, Supplemental Peg Orders, and Display-Price Sliding are also consistent with the Act because
The Commission adopted Regulation Systems Compliance and Integrity (“Regulation SCI”) in November 2014 to strengthen the technology infrastructure of the U.S. securities markets.
In addition, each of these proposed changes would have a de minimis to zero impact on the data reported pursuant to the Plan. As evidenced above, Market Pegged Orders, Discretionary Orders, the alternative pegging functionality of Mid-Point Peg Orders, and Supplemental Peg Orders are infrequently used in Pilot Securities or the execution of such orders would be scarce due to the Plan's minimum trading and quoting requirement and Trade-at Prohibition. The limited usage and execution scenarios do not justify the additional system complexity which would be created by modifying the System to support such order types in order to comply with the Plan. Therefore, the Exchange believes each proposed change is a reasonable means to ensure that the System's integrity, resiliency, and availability continues to promote the maintenance of fair and orderly markets. Due to the additional complexity, limited usage and execution opportunities, the Exchange believes it is not unfairly discriminatory to apply the changes proposed herein to only Pilot Securities as such changes are necessary to reduce complexity and ensure continued System resiliency in accordance with the requirements of Regulation SCI. The Exchange also believes the proposed changes to Non-Displayed Orders, and orders subject to the Display-Price Sliding process in Test Group Three are consistent with the Act because they are designed to increase the execution opportunities for such order types in compliance with the mid-point exception to the Trade-at Prohibition. The Exchange also believes the proposed change to Market Pegged Orders in Test Groups One and Two is consistent with the Act because it is identical to the operation of the Super Aggressive instruction under Exchange Rule 11.13(b)(4)(C). The Exchange notes that Market Pegged Orders are aggressive by nature and believes executing the order in such circumstance is reasonable and appropriate.
The Exchange also believes it is reasonable and appropriate to cancel an order subject to the single Display-Price Sliding process in Test Group Three in the event that the NBBO widens and a contra-side Non-Displayed Order is resting on the BZX Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to technological limitations and the Plan's increased minimum quoting increments, the Exchange is unable to safely re-program its System to re-price such orders to the original locking price in such circumstances. The Exchange also anticipates that the scenario under which it proposes to cancel the Display-Price Sliding order will be infrequent in Tick Pilot Securities. Users who prefer an execution in such a scenario may elect to use the multiple Display-Price Sliding process. Therefore, the Exchange believes it is consistent with the Act to set forth this scenario in its rules so that Users will understand how the System operates and how their orders would be handled in this discrete scenario.
Lastly, the Exchange believes the ministerial changes to Rule 11.27 are also consistent with the Act as they would: (i) Clarify a provision under paragraph (a)(4); and (ii) remove redundant provisions from the rule.
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 is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan, reduce System complexity and enhance resiliency. The Exchange also notes that the proposed rule change will apply equally to all Members that trade Pilot Securities.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. In particular, the Commission seeks comment on the issue described below.
In the Approval Order, the Commission stressed the importance of testing the impact of wider tick sizes on the trading and liquidity of the securities of small capitalization companies, and doing so in a way that produces robust results that inform future policy decisions.
While the Exchange states that the proposed rule change describes the system changes necessary to implement the Pilot, the Commission notes that the scope of the proposed changes extends beyond those required for compliance with the Plan, and would eliminate certain order types for Pilot Securities during the Pilot Period, or modify their operation in ways not required by the Plan. For example, the Exchange proposes not to accept Market Pegged Orders, Discretionary Orders, and Supplemental Peg Orders, and certain types of Mid-Point Peg Orders, in some or all Test Groups of Pilot Securities for the duration of the Pilot Period.
The Commission is concerned that proposed rule changes, other than those necessary for compliance with Plan, that are targeted at Pilot Securities, that have a disparate impact on different Test Groups and the Control Group, and that are to apply temporarily only for the Pilot Period, could bias the results of the Pilot and undermine the value of the data generated in informing future policy decisions. Accordingly, the Commission is concerned that the proposed rule change may not be consistent with Act, including Section 6(b)(5) thereof and Rule 608 of Regulation NMS, or with the Plan.
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.
By letter dated July 14, 2016 (the “Letter”), as supplemented by conversations with the staff of the Division of Trading and Markets, counsel for Janus Detroit Street Trust (the “Trust”) on behalf of the Trust, the Janus Velocity Tail Risk Hedged Large Cap ETF and the Janus Velocity
The Trust is registered with the Commission under the Investment Company Act of 1940, as amended (“1940 Act”), as an open-end management investment company. Each New Fund seeks to track the performance of a particular underlying index (“Index”), which for each New Fund is comprised of shares of exchange-traded products (“ETPs”). As a result of the Trust and the ALPS ETF Trust
The Requestors represent that each New Fund's underlying index will reflect the performance of a portfolio consisting of an exposure to a large cap equity portfolio, consisting of three underlying ETFs which track the S&P 500 index (“Underlying Large-Cap ETFs”) and a volatility strategy to hedge “tail risk” events (which are market events that occur rarely but may have severe consequences when they do occur) consisting of two underlying ETFs which reflect leveraged or inverse positions on the S&P 500 VIX Short-Term Futures Index (“Underlying Volatility ETFs”). The underlying index, at each monthly rebalance, consists of an 85% allocation to the Underlying Large-Cap ETFs and a 15% allocation to the Underlying Volatility ETFs. The New Funds intend to operate as “ETFs of ETFs” by seeking to track the performance of the respective underlying Index by investing at least 80% of their assets in the ETPs that comprise each Index. Substantially identical in all material respects to the Existing Funds, the Requestors represent that they intend to enter into swap agreements for each New Fund designed to provide exposure to (a) the Underlying Volatility ETFs and/or (b) leveraged and/or inverse positions on the S&P 500 VIX Short-Term Futures Index directly. Except for the fact that the New Funds will operate as ETFs of ETFs and the Requestors represent that they intend to enter into swaps for each New Fund to obtain the leveraged and/or inverse exposure to the Underlying Volatility ETFs and/or the S&P 500 VIX Short-Term Futures Index, the Requestors represent that the New Funds will operate in a manner identical to the ETPs that comprise each Index and will effectively be the continuation of the Existing Funds.
The Requestors represent, among other things, the following:
• Shares of the New Funds will be issued by the Trust, an open-end management investment company that is registered with the Commission;
• The Trust will continuously redeem Creation Units at net asset value (“NAV”) and the secondary market price of the Shares should not vary substantially from the NAV of such Shares;
• Shares of the New Funds will be listed and traded on the NYSE Arca (the “Exchange”) or other exchange in accordance with exchange listing standards that are, or will become, effective pursuant to Section 19(b) of the Exchange Act;
• All ETPs in which the New Funds invest will meet all conditions set forth in a relevant class relief letter,
• At least 70% of each New Fund will be comprised of component securities that meet the minimum public float and minimum average daily trading volume thresholds under the “actively-traded securities” definition found in Regulation M for excepted securities during each of the previous two months of trading prior to formation of the relevant New Fund; provided, however, that if the New Fund has 200 or more component securities, then 50% of the component securities will meet the actively-traded securities thresholds;
• All the components of each Index will have publicly available last sale trade information;
• The intra-day proxy value of each New Fund per share and the value of each Index will be publicly disseminated by a major market data vendor throughout the trading day;
• On each business day before the opening of business on the Exchange, the New Funds' custodian, through the National Securities Clearing Corporation, will make available the list of the names and the numbers of securities and other assets of each New Fund's portfolio that will be applicable that day to creation and redemption requests;
• The Exchange or other market information provider will disseminate every 15 seconds throughout the trading day through the facilities of the Consolidated Tape Association an amount representing on a per-share basis, the current value of the securities and cash to be deposited as consideration for the purchase of Creation Units;
• The arbitrage mechanism will be facilitated by the transparency of the New Funds' portfolio and the
• The New Funds will invest solely in liquid securities;
• The New Funds will invest in securities that will facilitate an effective and efficient arbitrage mechanism and the ability to create workable hedges;
• The Requestors believe that arbitrageurs are expected to take advantage of price variations between each New Fund's market price and its NAV; and
• A close alignment between the market price of Shares and each New Fund's NAV is expected.
While redeemable securities issued by an open-end management investment company are excepted from the provisions of Rule 101 and 102 of Regulation M, the Requestors may not rely upon that exception for the Shares.
Generally, Rule 101 of Regulation M is an anti-manipulation rule that, subject to certain exceptions, prohibits any “distribution participant” and its “affiliated purchasers” from bidding for, purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of a distribution until after the applicable restricted period, except as specifically permitted in the rule. Rule 100 of Regulation M defines “distribution” to mean any offering of securities that is distinguished from ordinary trading transactions by the magnitude of the offering and the presence of special selling efforts and selling methods. The provisions of Rule 101 of Regulation M apply to underwriters, prospective underwriters, brokers, dealers, and other persons who have agreed to participate or are participating in a distribution of securities. The Shares are in a continuous distribution and, as such, the restricted period in which distribution participants and their affiliated purchasers are prohibited from bidding for, purchasing, or attempting to induce others to bid for or purchase extends indefinitely.
Based on the representations and facts presented in the Letter, particularly that the Trust is a registered open-end management investment company that will continuously redeem at the NAV Creation Units of Shares of the New Funds and that a close alignment between the market price of Shares and the New Funds' NAV is expected, the Commission finds that it is appropriate in the public interest, and consistent with the protection of investors, to grant the Trust an exemption from Rule 101 of Regulation M, pursuant to paragraph (d) of Rule 101 of Regulation M with respect to transactions in the New Funds as described in the Letter, thus permitting persons who may be deemed to be participating in a distribution of Shares of the New Funds to bid for or purchase such Shares during their participation in such distribution.
Rule 102 of Regulation M prohibits issuers, selling security holders, and any affiliated purchaser of such person from bidding for, purchasing, or attempting to induce any person to bid for or purchase a covered security during the applicable restricted period in connection with a distribution of securities effected by or on behalf of an issuer or selling security holder.
Based on the representations and facts presented in the Letter, particularly that the Trust is a registered open-end management investment company that will redeem at the NAV Creation Units of Shares of the New Funds and that a close alignment between the market price of Shares and the New Funds' NAV is expected, the Commission finds that it is appropriate in the public interest, and consistent with the protection of investors, to grant the Trust an exemption from Rule 102 of Regulation M, pursuant to paragraph (e) of Rule 102 of Regulation M with respect to transactions in the New Funds as described in the Letter, thus permitting the New Funds to redeem Shares of the New Funds during the continuous offering of such Shares.
Rule 10b-17, with certain exceptions, requires an issuer of a class of publicly traded securities to give notice of certain specified actions (for example, a dividend distribution) relating to such class of securities in accordance with Rule 10b-17(b). Based on the representations and facts in the Letter, in particular that the concerns that the Commission raised in adopting Rule 10b-17 generally will not be implicated if exemptive relief, subject to the conditions below, is granted to the Trust because market participants will receive timely notification of the existence and timing of a pending distribution,
This exemption from Rule 10b-17 is subject to the following conditions:
• The Trust will comply with Rule 10b-17 except for Rule 10b-17(b)(1)(v)(a) and (b); and
• The Trust will provide the information required by Rule 10b-17(b)(1)(v)(a) and (b) to the Exchange as soon as practicable before trading begins on the ex-dividend date, but in no event later than the time when the Exchange last accepts information relating to distributions on the day before the ex-dividend date.
This exemptive relief is subject to modification or revocation at any time the Commission determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act. This exemption is based on the facts presented and the representations made in the Letter. Any different facts or representations may require a different response. Persons relying upon this exemption shall discontinue transactions involving the Shares of the New Funds, pending presentation of the facts for the Commission's consideration, in the event that any material change occurs with respect to any of the facts or representations made by the Requestors, and as is the case with all preceding letters, particularly with respect to the close alignment between the market price of Shares and the New Fund's NAV. In addition, persons relying on this exemption are directed to the anti-fraud and anti-manipulation provisions of the Exchange Act, particularly Sections 9(a) and 10(b), and Rule 10b-5 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws must rest with the persons relying on this exemption. This order should not be considered a view with respect to any other question that the proposed transactions may raise, including, but not limited to the adequacy of the disclosure concerning, and the applicability of other federal or state laws to, the proposed transactions
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the pilot period applicable to the Customer Best Execution Auction (“CUBE”), per Rule 971.1NY, until January 18, 2017. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to extend the pilot period applicable to certain aspects of the Customer Best Execution—or CUBE—Auction, which is currently set to expire on July 18, 2016, until January 18, 2017.
Rule 971.1NY sets forth an electronic crossing mechanism for single-leg orders with a price improvement auction on the Exchange, referred to as the CUBE Auction.
An ATP Holder may initiate a CUBE Auction by electronically submitting for execution a limit order it represents as agent on behalf of a public customer, broker dealer, or any other entity (“CUBE Order”) against principal interest or against any other order it represents as agent, provided the initiating ATP Holder complies with Rule 971.1NY.
The CUBE Pilot was initially approved for a one-year pilot, and has since been extended for two subsequent years.
The Exchange implemented the CUBE Auction to provide an electronic crossing mechanism for single-leg orders with a price improvement auction. The CUBE Pilot was designed to create tighter markets and ensure that each order receives the best possible price. The Exchange believes that the CUBE Pilot attracts order flow and promotes competition and price improvement opportunities for CUBE Orders of fewer than 50 contracts. The Exchange believes that extending the pilot period is appropriate because it will allow the Exchange and the Commission additional time to analyze data regarding the CUBE Pilot that the Exchange has committed to provide.
The Exchange continues to believe that there remains meaningful competition for all size orders and that there is an active and liquid market functioning on the Exchange outside of the CUBE Auction. The Exchange believes the additional data will substantiate the Exchange's belief and provide further evidence in support of permanent approval of the CUBE Pilot.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that extending the pilot period is consistent with these principles because the CUBE Pilot is reasonably designed to create tighter markets and ensure that each order receives the best possible price, which benefits investors by increasing competition thereby maximizing opportunities for price improvement. The proposed extension would allow the CUBE Pilot to continue uninterrupted, thereby avoiding any potential investor confusion that could result from a temporary interruption in the CUBE Pilot. Because the CUBE Pilot is applicable to all CUBE Orders for fewer than 50 contracts, and to the requirement that the minimum size of the CUBE Auction is one contract, the proposal to extend the pilot merely acts to maintain status quo on the Exchange, which promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of, a free and open market and a national market system. The extension of the pilot period will allow the Commission and the Exchange to continue to monitor the CUBE Pilot to ascertain whether there is meaningful competition for all size orders and whether there is an active and liquid market functioning on the Exchange outside of the CUBE Auction.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change simply extends an established pilot program for an additional period and would allow for further analysis of the CUBE Pilot. In addition, the proposed extension would allow the CUBE Pilot to continue uninterrupted, thereby avoiding any potential investor confusion that could result from a temporary interruption in the CUBE Pilot. Thus, the proposal would also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because such waiver will allow the pilot program to continue without interruption. The Commission has therefore determined to waive the 30-day operative delay and designate the proposed rule change as operative upon filing with the Commission.
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt paragraph (c) to Exchange Rule 11.27 to describe changes to System
The text of the proposed rule change is available at 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 parts of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, Bats BZX Exchange, Inc. (“BZX”), Chicago Stock Exchange, Inc., Bats EDGA Exchange, Inc. (“EDGA”), Bats EDGX Exchange, Inc. (“EDGX”), 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 “Participants”), filed with the Commission, pursuant to Section 11A of the Act
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 Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan.
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 Test Group 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. Accordingly, the Exchange adopted paragraph (a) of Rule 11.27 to require Members
The Exchange proposes to amend paragraph (a) of Rule 11.27 to specify that orders entered into the Exchange's RPI Program qualify for certain exceptions to the Plan. The Exchange also proposes to adopt paragraph (c) of Exchange Rule 11.27 to describe changes to System functionality necessary to implement the Plan. Paragraph (c) of Rule 11.27 would set forth the Exchange's specific procedures for handling, executing, re-pricing and displaying of certain order types and order type instructions applicable to Pilot Securities. Unless otherwise indicated, paragraph (c) of Rule 11.27 would apply to order types and order type instructions in Pilot Securities in Test Groups One, Two, and Three and not to Pilot Securities included in the Control Group. The proposed changes include select and discrete amendments to the operation of: (i) BYX Market Orders; (ii) Market Pegged Orders; (iii) Mid-Point Peg Orders; (iii) Discretionary Orders; (iv) Non-Displayed Orders; (v) Market Maker Peg Orders; (vi) Supplemental Peg Orders; and (vii) orders subject to the Display-Price Sliding process.
In determining the scope of these proposed changes to implement the Plan, the Exchange carefully weighed the impact on the Pilot, System complexity, and the usage of such order types in Pilot Securities. These proposed changes are designed to directly comply with the Plan and to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. As discussed below, certain of these changes are also intended to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage of certain order types in Pilot Securities and/or their limited ability to execute under the Trade-at Prohibition. Therefore, the Exchange firmly believes that these changes will have little or no impact on the operation and data collection elements of the Plan. The Exchange further believes that the proposed rule changes are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan.
In November 2012, the Commission approved the RPI Program on a pilot basis.
Exchange Rule 11.27(a)(4) sets forth the applicable limitations for securities in Test Group One. Consistent with the language of the Plan, Rule 11.27(a)(4) provides that no Member may display, rank, or accept from any person any displayable or non-displayable bids or
Exchange Rule 11.27(a)(5) also sets forth the applicable trading restrictions for Test Group Two securities. Absent any of the exceptions listed in the Rule, no Member may execute orders in any Pilot Security in Test Group Two in price increments other than $0.05. 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 where a Retail Investor Order is provided with price improvement that is at least $0.005 better than the best protected bid and best protected offer (“PBBO”).
Exchange Rule 11.27(a)(6) sets forth the applicable quoting and trading restrictions for Pilot Securities in Test Group Three. The rule provides that no Member 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 entered in a Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05. As proposed for Rules 11.27(a)(4) and (5) above, the Exchange similarly proposes to amend Rule 11.27(a)(6) to also specify that the RPI Program qualifies as a Participant-operated liquidity program under the Plan and that orders entered into the RPI Program may be ranked and accepted in increments of less than $0.05.
The rule also states that, absent any of the applicable exceptions, no Member that operates a Trading Center may execute orders in any Pilot Security in Test Group Three in price increments other than $0.05. Exchange Rule 11.27(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. One exception is that Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO. As proposed for Rule 11.27(a)(5) above, the Exchange similarly proposes to amend Rule 11.27(a)(6) to specify that Retail Orders entered into the Exchange's RPI Program qualify as Retail Investor Orders and may be provided with price improvement that is at least $0.005 better than the PBBO.
Exchange Rule 11.27(a)(6)(D) sets forth the Trade-at Prohibition, which is the prohibition against executions by a Member 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,
A BYX Market Order is an order to buy or sell a stated amount of a security that is to be executed at the NBBO when the order reaches the Exchange. BYX Market Orders shall not trade through Protected Quotations.
The Exchange proposes to amend the operation of Market Pegged Orders to reduce risk in its System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition in Test Group Three. A Pegged Order is a limit order that after entry into the System, the price of the order is automatically adjusted by the System in response to changes in the NBBO. A Pegged Order will peg to the NBB or NBO or a certain amount away from the NBB or NBO.
In Test Groups One and Two, the Exchange proposes to modify the behavior of Market Pegged Order when it is locked by an incoming BYX Post Only Order
The Exchange notes that Market Pegged Orders are aggressive by nature and believes executing the order in such circumstance is appropriate. The Exchange also notes that the proposed behavior for Market Pegged Orders in Test Groups One and Two is identical to the operation of orders with the Super Aggressive Routing instruction under Exchange Rule 11.13(b)(4)(C). When an order with a Super Aggressive instruction is locked by an incoming BYX Post Only Order or Partial Post Only at Limit Order that does not remove liquidity pursuant to Rule 11.9(c)(6) or Rule 11.9(c)(7), respectively, the order is converted to an executable order and will remove liquidity against such incoming order. In addition, like as proposed above, in no case would an order with a Super Aggressive instruction execute against an incoming BYX Post Only Order or Partial Post Only at Limit Order if an order with higher priority is on the BYX Book. The Exchange believes this change is reasonable and appropriate due to the limited usage of Market Pegged Orders in Pilot Securities, to avoid unnecessary additional System complexity, and to ensure the Market Pegged Order may execute in such circumstance.
The Exchange also proposes to not accept Market Pegged Orders in Test Group Three based on limited current usage, additional System complexity, and their limited ability to execute under the Trade-at Prohibition. The Exchange believes that their de minimis usage and limited ability to execute due to the Trade-at Prohibition does not justify the complexity that would be created by supporting Market Pegged Orders in Test Group Three. A vast majority of Market Pegged Orders are entered into the System with a zero Offset and, therefore, create a locked market with the contra-side NBBO. Under the Trade-at Prohibition, a Market Pegged Order would not be eligible for execution at the locking price, including when a Trade-at Intermarket Sweep Order (“ISO”)
A Mid-Point Peg Order is an order whose price is automatically adjusted by the System in response to changes in the NBBO to be pegged to the midpoint of the NBBO, or, alternatively, pegged to the less aggressive of the midpoint of the NBBO or one minimum price variation
The Exchange proposes to not accept Discretionary Orders in all Test Groups, including the Control Group, to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities. In sum, a Discretionary Order is a Limit Order with a displayed or non-displayed ranked price and size and an additional non-displayed “discretionary price”.
The Exchange proposes to re-price to the midpoint of the NBBO Non-Displayed Orders in Test Group Three that are priced in a permissible increment better than the midpoint of the NBBO. A Non-Displayed Order is a Market or Limit Order that is not displayed on the Exchange.
A Market Maker Peg Order is a Limit Order that is automatically priced by the System at the Designated Percentage (as defined in Exchange Rule 11.8) away from the then current NBB and NBO, or if no NBB or NBO, at the Designated Percentage away from the last reported sale from the responsible single plan processor in order to comply with the quotation requirements for Market Makers set forth in Exchange Rule 11.8(d).
The Exchange proposes to not accept Supplemental Peg Orders in Test Group Three in order to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition. A Supplemental Peg Order is a non-displayed Limit Order that posts to the BYX Book, and thereafter is eligible for execution at the NBB for buy orders and NBO for sell orders against routable orders that are equal to or less than the aggregate size of the Supplemental Peg Order interest available at that price.
Under the Display-Price Sliding process, an order eligible for display by the Exchange that, at the time of entry, would create a violation of Rule 610(d) of Regulation NMS by locking or crossing a Protected Quotation of an external market, will be ranked at the locking price in the BYX Book and displayed by the System at one minimum price variation (
As described above, Exchange Rule 11.27(a)(6)(D) sets forth the Trade-at Prohibition, which is the prohibition against executions by a Member 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, unless an exception applies. Orders that are priced to execute at the midpoint of the NBBO are exempt from the Trade-at Prohibition. Therefore, to increase the execution opportunities and qualify for the mid-point exception to the Trade-at Prohibition, the Exchange proposes to rank orders in Test Group Three that are subject to the Display-Price Sliding process at the midpoint of the NBBO in the BYX Book and display such orders one minimum price variation below the current NBO (for bids) or one minimum price variation above the current NBB (for offers).
The Exchange also proposes to cancel orders subject to Display-Price Sliding in Test Group Three that are only to be adjusted once and not multiple times in the event the NBBO widens and a contra-side Non-Displayed Order is resting on the BYX Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to the increased minimum quoting increments under the Plan, the Exchange is unable to safely re-price an order subject to single Display-Price Sliding in Test Group Three to the original locking price in such circumstances and doing so would add additional System complexity and risk. As discussed
Currently, both Interpretation and Policy .03 to Rule 11.27(a) and Interpretation and Policy .11 to Rule 11.27(b) state that Rule 11.27 shall be in effect during a pilot period to coincide with the pilot period for the Plan (including any extensions to the pilot period for the Plan). The Exchange proposes to include this language at the beginning of Rule 11.27 and, therefore, proposes to delete both Interpretation and Policy .03 to Rule 11.27(a) and Interpretation and Policy .11 to Rule 11.27(b) as those provisions would be redundant and unnecessary.
If the Commission approves the proposed rule change, the proposed rule change will be effective upon Commission approval and shall 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 the proposed changes regarding its Retail Price Improvement Program, BYX Market Orders, Mid-Point Peg Orders, Market Maker Peg Orders, and Display-Price Sliding are consistent with the Act because they are intended to modify the Exchange's System to comply with the provisions of the Plan, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act. To the extent that these proposals are intended to comply with the Plan, the Exchange believes that these proposals are in furtherance of the objectives of the Plan, as identified by the Commission, and is therefore consistent with the Act.
The Exchange also believes that its proposed changes to Market Pegged Orders, Discretionary Orders, Non-Displayed Orders, Supplemental Peg Orders, and Display-Price Sliding are also consistent with the Act because they are intended to eliminate unnecessary System complexity and risk based on the de minimis current usage of such order types and instructions in Pilot Securities and/or their limited ability to execute under the Plan's minimum trading and quoting increments or Trade-at Prohibition.
Regulation SCI required the Exchange to establish written policies and procedures reasonably designed to ensure that their systems have levels of capacity, integrity, resiliency, availability, and security adequate to maintain their operational capability and promote the maintenance of fair and orderly markets, and that they operate in a manner that complies with the Exchange Act. Each of these proposed changes are intended to reduce complexity and risk in the System to ensure the Exchange's technology remains robust and resilient. In determining the scope of the proposed changes, the Exchange carefully weighed the impact on the Pilot, System complexity, and the usage of such order types in Pilot Securities.
In addition, each of these proposed changes would have a de minimis to zero impact on the data reported pursuant to the Plan. As evidenced above, Market Pegged Orders, Discretionary Orders, the alternative pegging functionality of Mid-Point Peg Orders, and Supplemental Peg Orders are infrequently used in Pilot Securities or the execution of such orders would be scarce due to the Plan's minimum trading and quoting requirement and Trade-at Prohibition. The limited usage and execution scenarios do not justify the additional system complexity which would be created by modifying the System to support such order types in order to comply with the Plan. Therefore, the Exchange believes each proposed change is a reasonable means to ensure that the System's integrity, resiliency, and availability continues to promote the maintenance of fair and orderly markets. Due to the additional complexity, limited usage and execution opportunities, the Exchange believes it is not unfairly discriminatory to apply the changes proposed herein to only Pilot Securities as such changes are necessary to reduce complexity and ensure continued System resiliency in accordance with the requirements of Regulation SCI. The Exchange also believes the proposed changes to Non-Displayed Orders, and orders subject to the Display-Price Sliding process in Test Group Three are consistent with the Act because they are designed to increase the execution opportunities for such order types in compliance with the mid-point exception to the Trade-at Prohibition. The Exchange also believes the proposed change to Market Pegged Orders in Test Groups One and Two is consistent with the Act because it is identical to the operation of the Super Aggressive instruction under Exchange Rule 11.13(b)(4)(C). The Exchange notes that Market Pegged Orders are aggressive by nature and believes executing the order in such circumstance is reasonable and appropriate.
The Exchange also believes it is reasonable and appropriate to cancel an order subject to the single Display-Price Sliding process in Test Group Three in the event that the NBBO widens and a contra-side Non-Displayed Order is resting on the BYX Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to technological limitations and the Plan's increased minimum quoting increments, the Exchange is unable to safely re-program its System to re-price such orders to the original locking price in such circumstances. The Exchange also anticipates that the scenario under which it proposes to cancel the Display-Price Sliding order will be infrequent in Tick Pilot Securities. Users who prefer an execution in such a scenario may elect to use the multiple Display-Price Sliding process. Therefore, the Exchange believes it is consistent with the Act to set forth this scenario in its rules so that Users will understand how the System operates and how their orders would be handled in this discrete scenario.
Lastly, the Exchange believes the ministerial changes to Rule 11.27 are also consistent with the Act as they would: (i) Clarify a provision under paragraph (a)(4); and (ii) remove redundant provisions from the rule.
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 is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan, reduce System complexity and enhance resiliency. The Exchange also notes that the proposed rule change will apply equally to all Members that trade Pilot Securities.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. In particular, the Commission seeks comment on the issue described below.
In the Approval Order, the Commission stressed the importance of testing the impact of wider tick sizes on the trading and liquidity of the securities of small capitalization companies, and doing so in a way that produces robust results that inform future policy decisions.
While the Exchange states that the proposed rule change describes the system changes necessary to implement the Pilot, the Commission notes that the scope of the proposed changes extends beyond those required for compliance with the Plan, and would eliminate certain order types for Pilot Securities during the Pilot Period, or modify their operation in ways not required by the Plan. For example, the Exchange proposes not to accept Market Pegged Orders, Discretionary Orders, and Supplemental Peg Orders, and certain types of Mid-Point Peg Orders, in some or all Test Groups of Pilot Securities for the duration of the Pilot Period.
The Commission is concerned that proposed rule changes, other than those necessary for compliance with Plan, that are targeted at Pilot Securities, that have a disparate impact on different Test Groups and the Control Group, and that are to apply temporarily only for the Pilot Period, could bias the results of the Pilot and undermine the value of the data generated in informing future policy decisions. Accordingly, the Commission is concerned that the proposed rule change may not be consistent with Act, including Section 6(b)(5) thereof and Rule 608 of Regulation NMS, or with the Plan.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt paragraph (c) to Exchange Rule 11.22 to describe changes to System
The text of the proposed rule change is available at 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 parts of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, Bats BYX Exchange, Inc. (“BYX”), Chicago Stock Exchange, Inc., Bats BZX Exchange, Inc. (“BZX”), Bats EDGA Exchange, Inc. (“EDGA”), 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 “Participants”), filed with the Commission, pursuant to Section 11A of the Act
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 Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan.
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 Test Group 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. Accordingly, the Exchange adopted paragraph (a) of Rule 11.22 to require Members
The Exchange proposes to adopt paragraph (c) of Exchange Rule 11.22 to describe changes to System functionality necessary to implement the Plan. Paragraph (c) of Rule 11.22 would set forth the Exchange's specific procedures for handling, executing, re-pricing and displaying of certain order types and order type instructions applicable to Pilot Securities. Unless otherwise indicated, paragraph (c) of Rule 11.22 would apply to order types and order type instructions in Pilot Securities in Test Groups One, Two, and Three and not to orders in Pilot Securities included in the Control Group. The proposed changes include select and discrete amendments to the operation of: (i) Market Orders; (ii) orders with a Market Peg instruction; (iii) MidPoint Peg Orders; (iii) orders with a Discretionary Range; (iv) orders with a Non-Displayed instruction; (v) Market Maker Peg Orders; (vi) Supplemental Peg Orders; and (vii) orders subject to the Display-Price Sliding process.
In determining the scope of these proposed changes to implement the Plan, the Exchange carefully weighed the impact on the Pilot, System complexity, and the usage of such order types in Pilot Securities. These proposed changes are designed to directly comply with the Plan and to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. As discussed below, certain of these changes are also intended to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage of certain order types in Pilot Securities and/or their limited ability to execute under the Trade-at Prohibition. Therefore, the Exchange firmly believes that these changes will have little or no impact on the operation and data collection elements of the Plan. The Exchange further believes that the proposed rule changes are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan.
A Market Order is an order to buy or sell a stated amount of a security that is to be executed at the NBBO when the order reaches the Exchange.
The Exchange proposes to amend the operation of orders with a Market Peg instruction to reduce risk in its System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition in Test Group Three. An order with a Pegged instruction is automatically adjusted by the System in response to changes in the NBBO and will peg to the NBB or NBO or a certain amount away from the NBB or NBO.
In Test Groups One and Two, the Exchange proposes to modify the behavior of an order with a Market Peg instruction when it is locked by an incoming order with a Post Only instruction
The Exchange notes that orders with a Market Peg instruction are aggressive by nature and believes executing the order in such circumstance is appropriate. The Exchange also notes that the proposed behavior for orders with a Market Peg instruction in Test Groups One and Two is identical to the operation of orders with the Super Aggressive Routing instruction under Exchange Rule 11.6(n)(2). When an order with a Super Aggressive instruction is locked by an incoming order with a Post Only instruction that does not remove liquidity pursuant to Rule 11.6(n)(4), the order is converted to an executable order and will remove liquidity against such incoming order. In addition, like as proposed above, in no case would an order with a Super Aggressive instruction execute against an incoming order with a Post Only instruction if an order with higher priority is on the EDGX Book. The Exchange believes this change is reasonable and appropriate due to the limited usage of orders with a Market Peg instruction in Pilot Securities, to avoid unnecessary additional System complexity, and to ensure the order with a Market Peg instruction may execute in such circumstance.
The Exchange also proposes to not accept orders with a Market Peg instruction in Test Group Three based on limited current usage, additional System complexity, and their limited ability to execute under the Trade-at Prohibition. Exchange Rule 11.22(a)(6)(D) sets forth the “Trade-at Prohibition,” which is the prohibition against executions by a Member 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,
A MidPoint Peg Order is an order whose price is automatically adjusted by the System in response to changes in the NBBO to be pegged to the midpoint of the NBBO, or, alternatively, pegged to the less aggressive of the midpoint of the NBBO or one Minimum Price Variation
The Exchange proposes to not accept orders with a Discretionary Range in all Test Groups, including the Control Group, to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities. In sum, an order with a Discretionary Range has a displayed or non-displayed ranked price and size and an additional non-displayed “discretionary price”.
The Exchange proposes to re-price to the midpoint of the NBBO orders with a Non-Displayed instruction in Test Group Three that are priced in a permissible increment better than the midpoint of the NBBO. An order with a Non-Displayed instruction is not displayed on the Exchange.
A Market Maker Peg Order is a Limit Order that is automatically priced by the System at the Designated Percentage (as defined in Exchange Rule 11.20(d)(2)(D)) away from the then current NBB and NBO, or if no NBB or NBO, at the Designated Percentage away from the last reported sale from the responsible single plan processor in order to comply with the quotation requirements for Market Makers set forth in Exchange Rule 11.20(d).
The Exchange proposes to not accept Supplemental Peg Orders in Test Group Three in order to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition. A Supplemental Peg Order is a non-displayed Limit Order that posts to the EDGX Book, and thereafter is eligible for execution at the NBB for buy orders and NBO for sell orders against routable orders that are equal to or less than the aggregate size of the Supplemental Peg Order interest available at that price.
Under the Display-Price Sliding process, an order eligible for display by the Exchange that, at the time of entry, would create a violation of Rule 610(d) of Regulation NMS by locking or crossing a Protected Quotation of an external market, will be ranked at the locking price in the EDGX Book and displayed by the System at one minimum price variation (
As described above, Exchange Rule 11.22(a)(6)(D) sets forth the Trade-at Prohibition, which is the prohibition against executions by a Member 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, unless an exception applies. Orders that are priced to execute at the midpoint of the NBBO are exempt from the Trade-at Prohibition. Therefore, to increase the execution opportunities and qualify for the mid-
The Exchange also proposes to cancel orders subject to Display-Price Sliding in Test Group Three that are only to be adjusted once and not multiple times in the event the NBBO widens and a contra-side order with a Non-Displayed instruction is resting on the EDGX Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to the increased minimum quoting increments under the Plan, the Exchange is unable to safely re-price an order subject to single Display-Price Sliding in Test Group Three to the original locking price in such circumstances and doing so would add additional System complexity and risk. As discussed above, the Exchange proposes to rank orders in Test Group Three subject to the Display-Price Sliding process at the midpoint of the NBBO. In the event the NBBO changes such that an order subject to Display-Price Sliding would not lock or cross a Protected Quotation of an external market, the order will receive a new timestamp, and will be displayed at the order's limit price.
Currently, both Interpretation and Policy .03 to Rule 11.22(a) and Interpretation and Policy .11 to Rule 11.22(b) state that Rule 11.22 shall be in effect during a pilot period to coincide with the pilot period for the Plan (including any extensions to the pilot period for the Plan). The Exchange proposes to include this language at the beginning of Rule 11.22 and, therefore, proposes to delete both Interpretation and Policy .03 to Rule 11.22(a) and Interpretation and Policy .11 to Rule 11.22(b) as those provisions would be redundant and unnecessary. The Exchange also proposes to amend the last sentence of Rule 11.22(a)(4) to specify that the current permissible price increments are set forth under Exchange Rule 11.6(i), Minimum Price Variation.
If the Commission approves the proposed rule change, the proposed rule change will be effective upon Commission approval and shall 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 the proposed changes regarding Market Orders, MidPoint Peg Orders, Market Maker Peg Orders, and Display-Price Sliding are consistent with the Act because they are intended to modify the Exchange's System to comply with the provisions of the Plan, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act. To the extent that these proposals are intended to comply with the Plan, the Exchange believes that these proposals are in furtherance of the objectives of the Plan, as identified by the Commission, and is therefore consistent with the Act.
The Exchange also believes that its proposed changes to orders with a Market Peg instruction, orders with a Discretionary Range, orders with a Non-Displayed instruction, Supplemental Peg Orders, and Display-Price Sliding are also consistent with the Act because they are intended to eliminate unnecessary System complexity and risk based on the de minimis current usage of such order types and instructions in Pilot Securities and/or their limited ability to execute under the Plan's minimum trading and quoting increments or Trade-at Prohibition.
The Commission adopted Regulation Systems Compliance and Integrity (“Regulation SCI”) in November 2014 to strengthen the technology infrastructure of the U.S. securities markets.
In addition, each of these proposed changes would have a de minimis to zero impact on the data reported pursuant to the Plan. As evidenced above, orders with a Market Peg instruction, orders with a Discretionary Range, the alternative pegging functionality of MidPoint Peg Orders, and Supplemental Peg Orders are infrequently used in Pilot Securities or the execution of such orders would be scarce due to the Plan's minimum trading and quoting requirement and Trade-at Prohibition. The limited usage and execution scenarios do not justify the additional system complexity which would be created by modifying the System to support such order types in order to comply with the Plan. Therefore, the Exchange believes each proposed change is a reasonable means to ensure that the System's integrity, resiliency, and availability continues to promote the maintenance of fair and orderly markets. Due to the additional complexity, limited usage and execution opportunities, the Exchange believes it is not unfairly discriminatory to apply the changes proposed herein to only Pilot Securities as such changes are necessary to reduce complexity and ensure continued System resiliency in accordance with the requirements of Regulation SCI. The Exchange also believes the proposed changes to orders with a Non-Displayed instruction, and orders subject to the Display-Price Sliding process in Test Group Three are consistent with the Act because they are designed to increase the execution opportunities for such order types in compliance with the mid-point exception to the Trade-at Prohibition. The Exchange also believes the proposed change to Market Pegged Orders in Test Groups One and Two is consistent with the Act because it is identical to the operation of the Super Aggressive instruction under Exchange Rule 11.6(n)(2). The Exchange notes that Market Pegged Orders are aggressive by nature and believes executing the order in such circumstance is reasonable and appropriate.
The Exchange also believes it is reasonable and appropriate to cancel an order subject to the single Display-Price Sliding process in Test Group Three in the event that the NBBO widens and a contra-side order with a Non-Displayed instruction is resting on the EDGX Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to technological limitations and the Plan's increased minimum quoting increments, the Exchange is unable to safely re-program its System to re-price such orders to the original locking price in such circumstances. The Exchange also anticipates that the scenario under which it proposes to cancel the Display-Price Sliding order will be infrequent in Tick Pilot Securities. Users who prefer an execution in such a scenario may elect to use the multiple Display-Price Sliding process. Therefore, the Exchange believes it is consistent with the Act to set forth this scenario in its rules so that Users will understand how the System operates and how their orders would be handled in this discrete scenario.
Lastly, the Exchange believes the ministerial changes to Rule 11.22 are also consistent with the Act as they would: (i) Clarify a provision under paragraph (a)(4); and (ii) remove redundant provisions from the rule.
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 is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan, reduce System complexity and enhance resiliency. The Exchange also notes that the proposed rule change will apply equally to all Members that trade Pilot Securities.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
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. In particular, the Commission seeks comment on the issue described below.
In the Approval Order, the Commission stressed the importance of testing the impact of wider tick sizes on the trading and liquidity of the securities of small capitalization companies, and doing so in a way that produces robust results that inform future policy decisions.
While the Exchange states that the proposed rule change describes the system changes necessary to implement the Pilot, the Commission notes that the scope of the proposed changes extends beyond those required for compliance with the Plan, and would eliminate certain order types for Pilot Securities during the Pilot Period, or modify their operation in ways not required by the Plan. For example, the Exchange proposes not to accept Market Pegged Orders, Discretionary Orders, and Supplemental Peg Orders, and certain types of Mid-Point Peg Orders, in some or all Test Groups of Pilot Securities for the duration of the Pilot Period.
The Commission is concerned that proposed rule changes, other than those necessary for compliance with Plan, that are targeted at Pilot Securities, that have a disparate impact on different Test Groups and the Control Group, and that are to apply temporarily only for the Pilot Period, could bias the results of the Pilot and undermine the value of the data generated in informing future policy decisions. Accordingly, the Commission is concerned that the proposed rule change may not be consistent with Act, including Section 6(b)(5) thereof and Rule 608 of Regulation NMS, or with the Plan.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Exchange Act” or “Act”)
The MSRB filed with the Commission a proposed rule change to the MSRB's facility for the Real-Time Transaction Reporting System (“RTRS”) to establish an historical data product to provide institutions of higher education (“academic institutions”) with post-trade municipal securities transaction data collected through RTRS (“MSRB Academic Historical Transaction Data Product,” hereafter referred to as “RTRS Academic Data Product”) for purchase (“proposed rule change”). If approved by the Commission, the MSRB will announce the effective date of the proposed rule change in a regulatory notice to be published no later than 90 days following Commission approval. The effective date will be no later than 270 days following publication of the regulatory notice announcing Commission approval.
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The MSRB is the federal regulatory entity with primary responsibility under the Exchange Act for rulemaking for the municipal securities market. Under the Exchange Act, the MSRB is charged with adopting rules with respect to transactions in municipal securities effected by brokers, dealers and municipal securities dealers (“dealers”) and the municipal advisory activities of municipal advisors.
In addition to developing its comprehensive body of rules governing the activities of dealers and municipal advisors, the MSRB has undertaken to create various market transparency products in furtherance of its statutory duties and its mission, which is, in part, to promote a fair and efficient municipal securities market through the collection and dissemination of market information. Historically, the MSRB has operated information systems to collect key disclosure documents and transaction data to create a central warehouse of information that made most of these documents and data available to the market—the Electronic Municipal Market Access (“EMMA®”)
MSRB Rule G-14, on transaction reporting, requires dealers to report all executed transactions in municipal securities to RTRS within 15 minutes of the time of trade, with limited exceptions.
While currently used by researchers from academic institutions (“academics”), through subscription services or in historical data sets, the RTRS data available on the EMMA Web site do not include any identifying information regarding the dealer reporting each transaction. Thus, the information disseminated from RTRS would not allow such an academic to attribute transactions to the dealers that facilitated them—even anonymously. As a result, some academics have asked whether the MSRB could make an enhanced version of RTRS trade data available that includes dealer identifiers. Further, on July 15, 2014, the MSRB published a Report on Secondary Market Trading in the Municipal Securities Market that utilized dealer identifiers to gain a better understanding of secondary market trading practices in the municipal securities market, including basic patterns of trading, pricing differentials associated with trading patterns and the impact of price transparency on pricing differentials. However, academics wishing to replicate the methodology employed in this report are unable to do so, as it relies, in part, on dealer identifiers.
In July 2015, in response to these requests from academics, the MSRB published a request for comment, proposing to create a new RTRS Academic Data Product that would include anonymized dealer identifiers (“draft proposal”).
While the MSRB understands that anonymized dealer identifiers may be highly useful to academic institutions in connection with their research activities, the MSRB also recognizes that dealers may be concerned with the potential for reverse engineering of anonymized dealer identifiers to determine dealer identities. To address this issue, in addition to anonymizing dealer identifiers, the MSRB would take additional measures, including:
• Providing unique data sets with different anonymized dealer identifiers to each academic;
• excluding list offering price and takedown transactions;
• explicitly requiring subscribers to agree that they will not attempt to reverse engineer the identity of any dealer;
• prohibiting the redistribution of the data in the RTRS Academic Data Product;
• requiring users to disclose each intended use of the data (including a description of each study being performed and the names of each individual who will have access to the data for the study);
• requiring users to ensure that any data presented in work product be sufficiently aggregated so as to prevent reverse engineering of any dealer or transaction;
• requiring that the data be returned or destroyed if the agreement is terminated; and
• aging all the transactions included in the RTRS Academic Data Product for no less than 36 months.
The establishment of the RTRS Academic Data Product would add to the MSRB's current offering of data products and further the MSRB's mission to improve the transparency of the municipal securities market by facilitating access to municipal market data for academic institutions. While academic institutions currently have access to the post-trade municipal securities transaction data disseminated from RTRS, the RTRS Academic Data Product would improve the usefulness
Section 15B(b)(2) of the Exchange Act
[T]he Board shall propose and adopt rules to effect the purposes of this title with respect to transactions in municipal securities effected by [dealers] and advice provided to or on behalf of municipal entities or obligated persons by [dealers] and municipal advisors with respect to municipal financial products, the issuance of municipal securities, and solicitations of municipal entities or obligated persons undertaken by [dealers] and municipal advisors.
Section 15B(b)(2)(C) of the Exchange Act,
be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in municipal securities and municipal financial products, to remove impediments to and perfect the mechanism of a free and open market in municipal securities and municipal financial products, and, in general, to protect investors, municipal entities, obligated persons, and the public interest.
The MSRB believes that the proposed rule change is consistent with Sections 15B(b)(2) and 15B(b)(2)(C) of the Exchange Act because it would prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, and remove impediments to and perfect the mechanism of a free and open market in municipal securities. Specifically, the RTRS Academic Data Product would enable subscribers of the product to better understand the pricing of certain transactions, as well as how such transactions were executed, which should, in turn, facilitate higher quality research and analysis. Overall, the proposed rule change would contribute to the MSRB's continuing efforts to improve market transparency and to protect investors, municipal entities, obligated persons and the public interest.
Section 15B(b)(2)(C) of the Exchange Act
The MSRB believes that the availability of this data may further research, which could help the MSRB and other regulators: Prevent fraudulent and manipulative acts and practices; facilitate transactions in municipal securities and municipal financial products; remove impediments to and perfect the mechanism of a free and open market in municipal securities and municipal financial products; and protect investors, municipal entities, obligated persons and the public interest.
The MSRB acknowledges the potential for reverse engineering of anonymized dealer identifiers to determine dealer identities and has taken a number of measures to reduce this risk and mitigate any potential impact. Given these measures and the aforementioned benefits, the MSRB does not believe that the proposed rule change will impose any additional burdens on competition, relative to the baseline, that are not necessary or appropriate in furtherance of the purposes of the Act.
The MSRB received 13 comment letters in response to the Request for Comment.
In response to the Request for Comment, several commenters expressed strong general support for the creation of the RTRS Academic Data Product. ABFM, AGFS, Bergstresser, Cusatis, Glassberg, NYU Stern and Ramsey believe it would improve the quality of academic research on, and contribute to enhanced transparency in, the municipal securities market. Further, Gifford opined that the draft proposal would allow for better cost-benefit analysis of public-private partnership projects that access the municipal securities market, and Coastal stated that trade data that would be made available by the draft proposal would contribute to academic research of the municipal securities market and that it should be supported. Finally, Harris strongly supports the RTRS Academic Data Product and commented that the draft proposal would “allow the MSRB to better regulate markets for the public good.”
In the Request for Comment, the MSRB recognized that dealers may be concerned with the potential for reverse engineering of anonymized dealer identifiers to determine dealer identities from the data provided by the RTRS Academic Data Product, and it proposed several measures to prevent and deter those that would try to reverse engineer the trade data. Several commenters addressed this issue and proposed modifications to the draft proposal for purposes of preventing reverse engineering.
BDA expressed concern that the draft proposal would allow reverse engineering of a dealer's trading/investment strategy and the requirements of the subscription agreement would not sufficiently protect dealers, thus, exposing them to an “unnecessary business risk.” BDA further stated that data on municipal
Since the inception of this rulemaking initiative, the MSRB has been acutely aware of the potential for reverse engineering the trade data that would be included in the RTRS Academic Data Product. Indeed, the MSRB acknowledges that the data provided in the RTRS Academic Data Product could be reverse engineered. However, the MSRB believes that the measures it would take—
As noted above, as part of the MSRB's effort to prevent and deter reverse engineering of dealer identities, the draft proposal required that the trade data made available to subscribers of the RTRS Academic Data Product would be for trades that were executed at least 24 months prior to the date that they were provided to the subscriber. SIFMA stated, in combination with other concerns about the draft proposal, that 24 months is too short of a time period to adequately protect against reverse engineering, and, instead, suggested that the MSRB age the trade data for 48 months. In contrast, ABFM believed 12 months, rather than 24, would be a sufficient time period to ensure that trades could not be reverse engineered, and Ramsey also suggested 12 months would be preferable to 24 months to ensure the data is timely. Harris argued that 24 months would be more than sufficient for aging the data to remove the usefulness of that data for the purpose of reverse engineering, in part, because he believes dealer positions change in no more than two months, and he also noted that as few as six or up to 12 months would be a better length of time because it would allay the concerns of dealers and allow for the “identifying [of] parasitic trading strategies as quickly as possible.” Coastal believes 12 months would be too short a time period to sufficiently mitigate the reverse engineering risk but that 24 months would be appropriate and would not encumber research because, in its opinion, municipal securities market practices and conditions are “slow to evolve,” making the data still relevant to academics studying market behavior.
Based on careful consideration of all of the diverse comments on this issue, the MSRB believes, at this time, that a 36-month period is appropriate to protect against, and mitigate the risk and potential harm from, any reverse engineering, while still providing useful trade data for academics to study.
In the draft proposal, the MSRB proposed anonymizing identifiers for each individual dealer for the trade data made available through the RTRS Academic Data Product to protect against the potential of subscribers reverse engineering the data to determine dealer identities. A few commenters suggested alternative methods to anonymize dealer identities. Specifically, BDA stated that grouping dealers by size, as opposed to issuing individual anonymized identifiers, would better protect the trade data from reverse engineering if the MSRB does not plan on changing the dealer identifiers on a regular basis because, without periodic changes, it would become easier to identify dealers based on trading data over a long period of time. SIFMA similarly supported making the trade data available through “groupings of comparable dealers,” arguing that the MSRB and FINRA should “adopt the peer group criteria used in MSRB and FINRA report cards to aggregate dealers into reportable groups.” Further, Coastal stated that, if dealers were not grouped by size, then reverse engineering would likely occur, while grouping by size would not substantially encumber research uses of the trade data. Coastal also argued that contracting with subscribers to prevent reverse engineering would not be effective, and BDA noted that any subscription agreement would not extend to readers of studies produced by subscribers.
In support of individual identifiers, Harris stated that the “empirical work [of academics] requires high quality data that can inform their analyses as to what dealers do. Dealer identities thus need to be revealed, at a minimum in anonymized form, so that academics can understand how dealer trading decisions relate to their previous trading decisions.” To this point, Harris stated that grouping dealers would likely provide better trade data than is currently available to academics, but that such grouped data would not provide academics with the information needed to understand specific dealer behavior. He stated, “[D]ealer decisions to offer, not offer, and take liquidity are made by individual dealers in response to their individual needs and inventory conditions. Groups of dealers acting in concert do not make these decisions. To better understand these decisions, you must see who is making them.” Additionally, Bergstresser argued that grouping dealers by size would substantially hinder the purpose of the RTRS Academic Data Product because it would reduce “the information content of the data [and] would negate the entire purpose of having (anonymized) dealer identities, which is to be able to identify
The MSRB believes, at this time, that it would better further the principal purpose of creating the RTRS Academic Data Product—namely, to foster detailed research and analysis of municipal securities trading—if the trade data identifies dealers individually rather than by group. The MSRB believes that grouping dealers would result in too great a reduction in the usefulness of the RTRS Academic Data Product, and, as previously mentioned, that the protections incorporated in the proposed rule change, including, but not limited to, the 36-month aging of the data, and terms planned to be included in the subscription agreement will, on balance, adequately mitigate the risk of reverse engineering without the grouping of dealers.
As proposed in the Request for Comment, the RTRS Academic Data Product would make trade data available from transactions in both the primary and secondary markets. SIFMA believes that the potential for reverse engineering primary market trade data is particularly acute because, in its view, the currently available public data that does not have dealer identifiers is already subject to reverse engineering. SIFMA recommended that, if made available on a dealer-by-dealer basis, the data provided by the RTRS Academic Data Product exclude primary trades from the data set and periodically scramble dealer identifiers.
The MSRB agrees with SIFMA regarding primary market trades, in light of trade data products currently offered by the MSRB to provide academics and other interested parties with information about the primary market for municipal securities. Therefore, the RTRS Academic Data Product would not include list offering price and takedown transactions, which can be used to identify primary market transactions.
Harris commented that the RTRS Academic Data Product should provide full trade sizes and that the utility of the RTRS Academic Data Product would be reduced if the trade data did not reveal the sizes of the largest trades.
The MSRB understands the potential issues academic researchers could encounter if the full size of trades is not included in the trade data, and, therefore, the proposed rule change would provide the full size of each trade that is included in the RTRS Academic Data Product.
As proposed in the Request for Comment, the RTRS Academic Data Product would only be made available to academics in connection with their research activities. Commenters had differing views as to whether or not the subscriber base should be larger. First, Bergstresser suggested that the MSRB broaden the set of individuals who could have access to the RTRS Academic Data Product to include, for example, researchers associated with the Federal Reserve Board, individual Federal Reserve Banks, and other institutions such as the Brookings Institution, the American Enterprise Institute, and the Urban Institute. Bergstresser stated further that excluding researchers from such institutions would be “inappropriate and would hamper the progress of research on the municipal bond market.” Second, Harris stated that “[i]t would not be fair or in the public interest if interested industry groups could not replicate academic studies or produce their own” and that the RTRS Academic Data Product should be available to anyone. Harris added that the trade data needs to be made widely available so that academics can have a reasonable expectation that others will replicate, and potentially challenge, the research they conduct on the trade data. In contrast, Coastal argued that the availability of the RTRS Academic Data Product should be limited to academics to provide additional protection against reverse engineering of the trade data. ABFM affirmatively stated that it took no position on whether the data product should be limited to, or expanded beyond, academics, but stated that the MSRB should not base access to the RTRS Academic Data Product on the content, or results, of the requesting researcher's previously published works. Similarly, Harris also stated that access to the RTRS Academic Data Product should not be made contingent on the resulting research produced. Finally, SIFMA stated that the RTRS Academic Data Product should be available to “[a]ny not-for-profit that has a separately identifiable Research Department and regularly publishes research reports” on the same terms that it would be available to academics, but only if other modifications suggested by SIFMA were made, such as anonymizing dealer identities by group and aging the data for 48 months.
The establishment of the RTRS Academic Data Product was conceived as a means of advancing a goal of the MSRB's Long-Range Plan for Market Transparency Products
As proposed in the Request for Comment, the RTRS Academic Data Product would be made available for a fee of $500 per calendar-year data set (with a one-time initial set-up fee of $500).
As noted above, the MSRB intends to establish a fee for the RTRS Academic Data Product prior to the effective date of the proposed rule change. The fee will be established pursuant to a separate rule filing in which Harris' comment will be addressed.
As part of the Request for Comment, the MSRB included a draft description of the subscription agreement into which recipients of the RTRS Academic Data Product (“Recipients”) would be required to enter with the MSRB before access to the data would be granted (“Draft Agreement”). Some commenters requested clarification of, and others raised concerns about potential issues that could arise from, the terms of the Draft Agreement.
The MSRB included a liability provision in the Draft Agreement to, in part, deter and prevent reverse engineering and/or other misuse of the trade data provided by the RTRS Academic Data Product. Several commenters expressed concern regarding this provision that would hold Recipients “liable to the MSRB for any breach of the [Draft Agreement] resulting from the action/inaction of Recipient's internal users or any other individual or entity that accesses the [RTRS Academic Data Product] via Recipient or to whom Recipient provides any derivative works.” In particular, ABFM commented that the inclusion of the provision would be overly burdensome for academic institutions and may preclude some from subscribing. ABFM further suggested, as an alternative, that liability be limited to two times the price paid by the Recipient for the data and that holding a Recipient liable to the extent described by the Draft Agreement would be unreasonable. Bergstresser, Cusatis and Ramsey expressed similar views, and each stated that the liability exposure could prevent an academic institution from signing the Draft Agreement and using the RTRS Academic Data Product. In contrast, Harris stated that the terms of the Draft Agreement generally were sufficient and not unduly restrictive.
In the Request for Comment, the MSRB asked whether academics would be opposed to including, as a term of the agreement, a requirement that a copy of all derivative works that rely on the RTRS Academic Data Product be provided to the MSRB upon publication. In response, Harris requested that the MSRB provide more specifics regarding what is meant by the term “publication” because, in his view, academics may have differing understandings of when works of research are considered “published.” Harris further stated that, if academics are required to send published works to the MSRB, they should only be required to do so after the work is no longer described by its author as a “Working Draft—Not for Quotation—Subject to Change” and can be found via an internet search. ABFM stated that it believes that academics would not be opposed to providing the MSRB with all published works relying on the data from the RTRS Academic Data Product, so long as the MSRB did not require the academic to share authorship of the work or the copyright of such works.
SIFMA commented that the draft proposal did not state who at academic institutions would be able to access the trade data and requested that the MSRB modify the draft proposal to include “parameters around who may be considered an `Internal User' or `Recipient/Licensee.' ” In addition, SIFMA also suggested that the MSRB further limit “Authorized Use” to serve the purpose of research and to exclude any commercial use of the trade data. Overall, SIFMA expressed a concern that the creation of the RTRS Academic Data Product would lead to an inevitable data breach, revealing dealer trading and distribution strategies, which could have a negative impact on market liquidity. Similarly, BDA noted that nothing in the Draft Agreement would require academic institutions to have a minimum level of data security protections in place, making the data susceptible to theft.
The MSRB understands and appreciates the comments provided in response to the terms of the Draft Agreement presented in the Request for Comment. The MSRB included those terms and solicited comment on them primarily to determine whether to establish the RTRS Academic Data Product, and the subscription agreement into which academics and/or academic institutions would be required to enter (“Final Agreement”), and the terms thereof, have yet to be finalized. If the RTRS Academic Data Product is approved, the MSRB will, as it does for all of its subscription service agreements, conduct a thorough legal and risk analysis to ensure that it is adequately protected from possible breaches of the agreement, as well as consider the potential burdens placed on all parties to the agreement in light of the intended benefits. In performing this analysis, the MSRB will take all of the above comments into consideration.
As noted above, given the potential risk of the trade data included in the RTRS Academic Data Product being reverse engineered, the MSRB believes the subscription agreement will be an important complement to the measures included in the proposal to mitigate that risk. As such, the MSRB expects that the Final Agreement will include a liability provision substantially similar to the one included in the Draft Agreement to deter and prevent reverse engineering and other potential breaches of the agreement. The MSRB also expects that the Final Agreement will include a definition of “publication” to provide clarity to academics on what work product to provide to the MSRB and when, and will not require any form of joint authorship with the MSRB. Finally, the MSRB expects that the Final Agreement will define “Internal User” to clarify to whom access to the data may be provided and require reasonable security measures to protect the data from unauthorized access by controlling how they are used, accessed, processed, stored and/or transmitted.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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.
For the Commission, pursuant to delegated authority.
On March 29, 2016, Bats BZX Exchange, Inc. (“Exchange” or “BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade Shares of the following series of the Trust under BZX Rule 14.11(c)(4): VanEck Vectors AMT-Free 6-8 Year Municipal Index ETF; VanEck Vectors AMT-Free 8-12 Year Municipal Index ETF; and VanEck Vectors AMT-Free 12-17 Year Municipal Index ETF. The Shares will be offered by the Trust, which was established as a Delaware statutory trust on March 15, 2001. The Trust is registered with the Commission as an open-end investment company and has filed a registration statement on behalf of the Funds on Form N-1A (“Registration Statement”) with the Commission.
Van Eck Associates Corporation will be the investment adviser (“Adviser”) to the Funds. The Adviser will serve as the administrator for the Fund. The Bank of New York Mellon will serve as the custodian and transfer agent for the Funds. Van Eck Securities Corporation will be the distributor of the Shares. Barclays Inc. will be the index provider.
The Exchange has made the following representations and statements in describing the Funds and their respective investment strategies, including the Funds' portfolio holdings and investment restrictions.
According to the Exchange, the Funds and the Shares will seek to track the performance of a benchmark index that measures the investment-grade segment of the U.S. municipal bond market, as described below. Specifically, with respect to each of the VanEck Vectors AMT-Free 6-8 Year Municipal Index ETF, VanEck Vectors AMT-Free 8-12 Year Municipal Index ETF, and VanEck Vectors AMT-Free 12-17 Year Municipal Index ETF, the Shares will replicate as closely as possible, before fees and expense, the price and yield performance of the Barclays AMT-Free-6-8 Year Intermediate Continuous Municipal Index (“6-8 Year Index”); the Barclays AMT-Free-8-12 Year Intermediate Continuous Municipal Index (“8-12 Year Index”); and the Barclays AMT-Free-12-17 Year Intermediate Continuous Municipal Index (“12-17 Year Index,” and together with the 6-8 Year Index and the 8-12 Year Index, collectively, “Indices”), respectively.
To be included in each of the Funds, the Exchange states that a bond must be rated Baa3/BBB- or higher by at least two of the following ratings agencies if all three agencies rate the security: Moody's, S&P and Fitch. If only two of the three agencies rate the security, the lower rating is used to determine index eligibility. If only one of the three agencies rates a security, the rating must be at least Baa3/BBB-. Potential constituents must have an outstanding par value of at least $7 million and be issued as part of a transaction of at least $75 million. The bonds must be fixed rate, have a dated date within the last five years, and have an effective maturity that tracks each respective Fund. The following types of bonds are excluded from each of the Funds: Bonds subject to the alternative minimum tax, taxable municipal bonds, floating rate bonds, and derivatives. The Funds are calculated using a market value weighting methodology.
The composition of each of the Funds is rebalanced monthly. Interest and principal payments earned by the component securities are held in the Fund without a reinvestment return until month end when they are removed. Qualifying securities issued, but not necessarily settled, on or before the month end rebalancing date qualify for inclusion in each of the Funds in the following month. The Exchange notes that when-issued transactions (“WIs”)
Each of the Funds normally will invest at least 80% of its total assets in securities that comprise the Fund's corresponding benchmark index. The Funds will be comprised of publicly traded municipal bonds that cover the U.S. dollar-denominated intermediate term tax-exempt bond market with final maturities corresponding to the Index timeframe. Each Fund's 80% investment policy is non-fundamental and may be changed without shareholder approval upon 60 days' prior written notice to shareholders.
While each of the Funds normally will invest at least 80% of its total assets in securities that compose the 6-8 Year, 8-12 Year, and 12-17 Year Indices, as described above, the Funds may invest their remaining assets in other financial instruments, as described below.
The Funds may invest remaining assets in securities not included in the respective Indices, including only the following instruments: Municipal bonds (not described above); money market instruments, including repurchase agreements or other funds which invest exclusively in money market instruments; convertible securities; structured notes (notes on which the amount of principal repayment and interest payments are based on the movement of one or more specified factors, such as the movement of a particular stock or stock index);
The Funds may invest in repurchase agreements with commercial banks, brokers or dealers to generate income from its excess cash balances and to invest securities lending cash collateral.
The Funds may use exchange-traded futures contracts and exchange-traded options thereon, together with positions in cash and money market instruments, to simulate full investment.
The Funds may use cleared or non-cleared index, interest rate or credit default swap agreements. According to the Exchange, interest rate swaps and credit default swaps on indexes currently may be cleared; however, credit default swaps on a specific security are currently uncleared.
The Funds may invest in exchange-traded warrants, which are equity securities in the form of options issued by a corporation which give the holder the right to purchase stock, usually at a price that is higher than the market price at the time the warrant is issued.
The Funds may invest in participation notes, which are issued by banks or broker-dealers and are designed to offer a return linked to the performance of a particular underlying equity security or market.
The Funds will only enter into transactions in derivative instruments with counterparties that the Adviser reasonably believes are capable of performing under the contract and will post collateral as required by the counterparty.
The Exchange is submitting this proposed rule change because the Indices underlying the corresponding Funds do not meet all of the “generic” listing requirements of BZX Rule 14.11(c)(4) applicable to the listing of Index Fund Shares based on fixed income securities indexes.
1.
According to the Exchange, as of December 31, 2015, 95.1% of the weight of the 6-8 Year Index components was comprised of individual maturities that were part of an entire municipal bond offering with a minimum original principal amount outstanding $100 million or more for all maturities of the offering. In addition, the total dollar amount outstanding of issues in the 6-8 Year Index was approximately $57.4 billion, and the average dollar amount outstanding of issues in the 6-8 Year Index was approximately $19.8 million. Further, the most heavily weighted component represented 1.07% of the weight of the 6-8 Year Index, and the five most heavily weighted components represented 3.0% of the weight of the 6-8 Year Index.
The 6-8 Year Index value, calculated and disseminated at least once daily, as well as the components of the 6-8 Year Index and their percentage weighting, will be available from major market data vendors. In addition, the portfolio of securities held by the Fund will be disclosed on the Fund's Web site.
2.
According to the Exchange, as of December 31, 2015, 95.1% of the weight of the 8-12 Year Index components was comprised of individual maturities that were part of an entire municipal bond offering with a minimum original principal amount outstanding of $100 million or more for all maturities of the offering. In addition, the total dollar amount outstanding of issues in the 8-12 Year Index was approximately $108.6 billion, and the average dollar amount outstanding of issues in the 8-12 Year Index was approximately $19.2
The 8-12 Year Index value, calculated and disseminated at least once daily, as well as the components of the 8-12 Year Index and their percentage weighting, will be available from major market data vendors. In addition, the portfolio of securities held by the Fund will be disclosed on the Fund's Web site.
3.
According to the Exchange, as of December 31, 2015, 95.3% of the weight of the 12-17 Year Index components was comprised of individual maturities that were part of an entire municipal bond offering with a minimum original principal amount outstanding $100 million or more for all maturities of the offering. In addition, the total dollar amount outstanding of issues in the 12-17 Year Index was approximately $123.5 billion, and the average dollar amount outstanding of issues in the 12-17 Year Index was approximately $20 million. Further, the most heavily weighted component represented 0.29% of the weight of the 12-17 Year Index, and the five most heavily weighted components represented 1.11% of the weight of the 12-17 Year Index.
The 12-17 Year Index value, calculated and disseminated at least once daily, as well as the components of the 12-17 Year Index and their percentage weighting, will be available from major market data vendors. In addition, the portfolio of securities held by the Fund will be disclosed on the Fund's Web site.
The Exchange represents that: (1) Except for BZX Rule 14.11(c)(4)(B)(i)(b), the 6-8 Year Index, the 8-12 Year Index, and the 12-17 Year Index currently and will continue to satisfy all of the generic listing standards under BZX Rule 14.11(c)(4); (2) the continued listing standards under BZX Rule 14.11(c) applicable to Index Fund Shares will apply to the Shares of each Fund; and (3) the Trust is required to comply with Rule 10A-3 under the Act
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
The Commission also finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Funds. The Exchange will halt trading in the Shares under the conditions specified in BZX Rule 11.18. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) the extent to which trading is not occurring in the securities and/or the financial instruments composing the daily disclosed portfolio of the Funds; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares also will be subject to BZX Rule 14.11(c)(1)(B)(iv), which sets forth circumstances under which Shares of a Fund may be halted.
In support of this proposal, the Exchange has also made representations, including:
(1) The Shares of each Fund will conform to the initial and continued listing criteria under BZX Rule 14.11(c)(4), except for those set forth in 14.11(c)(4)(B)(i)(b).
(2) Except for BZX Rule 14.11(c)(4)(B)(i)(b), the 6-8 Year Index, the 8-12 Year Index, and the 12-17 Year Index currently and will continue to satisfy all of the generic listing standards under BZX Rule 14.11(c)(4)
(3) The continued listing standards under BZX Rule 14.11(c) applicable to Index Fund Shares will apply to the Shares of each Fund.
(4) The Shares of the Funds will comply with all other requirements applicable to Index Fund Shares including, but not limited to, requirements relating to the dissemination of key information such as the value of the Indices and the Intraday Indicative Value, rules governing the trading of equity securities, trading hours, trading halts, surveillance, and the information circular, as set forth in Exchange rules applicable to Index Fund Shares and the orders approving such rules.
(5) The Exchange represents that trading in the Shares will be subject to the existing Exchange trading surveillances procedures. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal
(6) The Exchange may obtain information regarding trading in the Shares and the underlying shares in exchange traded equity securities via the Intermarket Surveillance Group (“ISG”), from other exchanges that are members or affiliates of the ISG, or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
(7) For initial and continued listing of the Shares, the Trust is required to comply with Rule 10A-3 under the Act.
(8) The Funds generally will invest at least 80% of their respective assets in the securities of the corresponding Indices. The Funds may invest up to 20% of their respective assets in other securities and financial instruments as described above and in the Notice, as modified by Amendment No. 3 thereto.
(9) If the Exchange becomes aware that the NAV is not being disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants.
The Exchange represents that all statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets (including, for example, each Fund's 80% Investment Policy), or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares on the Exchange. In addition, the issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements (or any changes made with respect to a Fund's 80% Investment Policy), and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will surveil for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under Exchange Rule 14.12. This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice, as modified by Amendment No. 3 thereto, and the Exchange's description of the Funds.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 8 thereto, is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 19, 2016, NYSE Arca, Inc. filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt paragraph (c) to Exchange Rule 11.21 to describe changes to System
The text of the proposed rule change is available at 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 parts of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, Bats BYX Exchange, Inc. (“BYX”), Chicago Stock Exchange, Inc., Bats BZX Exchange, Inc. (“BZX”), Bats EDGX Exchange, Inc. (“EDGX”), 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 “Participants”), filed with the Commission, pursuant to Section 11A of the Act
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 Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan.
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 Test Group 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. Accordingly, the Exchange adopted paragraph (a) of Rule 11.21 to require Members
The Exchange proposes to adopt paragraph (c) of Exchange Rule 11.21 to describe changes to System functionality necessary to implement the Plan. Paragraph (c) of Rule 11.21 would set forth the Exchange's specific procedures for handling, executing, re-pricing and displaying of certain order types and order type instructions applicable to Pilot Securities. Unless otherwise indicated, paragraph (c) of Rule 11.21 would apply to order types and order type instructions in Pilot Securities in Test Groups One, Two, and Three and not to orders in Pilot Securities included in the Control Group. The proposed changes include select and discrete amendments to the operation of: (i) Market Orders; (ii) orders with a Market Peg instruction; (iii) MidPoint Peg Orders; (iii) orders with a Discretionary Range; (iv) orders with a Non-Displayed instruction; (v) Market Maker Peg Orders; (vi) Supplemental Peg Orders; and (vii) orders subject to the Display-Price Sliding process.
In determining the scope of these proposed changes to implement the Plan, the Exchange carefully weighed the impact on the Pilot, System complexity, and the usage of such order types in Pilot Securities. These proposed changes are designed to directly comply with the Plan and to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. As discussed below, certain of these changes are also intended to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage of certain order types in Pilot Securities and/or their limited ability to execute under the Trade-at Prohibition. Therefore, the Exchange firmly believes that these changes will have little or no impact on the operation and data collection elements of the Plan. The Exchange further believes that the proposed rule changes are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan.
A Market Order is an order to buy or sell a stated amount of a security that is to be executed at the NBBO when the order reaches the Exchange.
The Exchange proposes to amend the operation of orders with a Market Peg instruction to reduce risk in its System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition in Test Group Three. An order with a Pegged instruction is automatically adjusted by the System in response to changes in the NBBO and will peg to the NBB or NBO or a certain amount away from the NBB or NBO.
In Test Groups One and Two, the Exchange proposes to modify the behavior of an order with a Market Peg instruction when it is locked by an incoming order with a Post Only instruction
The Exchange notes that orders with a Market Peg instruction are aggressive by nature and believes executing the order in such circumstance is appropriate. The Exchange also notes that the proposed behavior for orders with a Market Peg instruction in Test Groups One and Two is identical to the operation of orders with the Super Aggressive Routing instruction under Exchange Rule 11.6(n)(2). When an order with a Super Aggressive instruction is locked by an incoming order with a Post Only instruction that does not remove liquidity pursuant to Rule 11.6(n)(4), the order is converted to an executable order and will remove liquidity against such incoming order. In addition, like as proposed above, in no case would an order with a Super Aggressive instruction execute against an incoming order with a Post Only instruction if an order with higher priority is on the EDGA Book. The Exchange believes this change is reasonable and appropriate due to the limited usage of orders with a Market Peg instruction in Pilot Securities, to avoid unnecessary additional System complexity, and to ensure the order with a Market Peg instruction may execute in such circumstance.
The Exchange also proposes to not accept orders with a Market Peg
A MidPoint Peg Order is an order whose price is automatically adjusted by the System in response to changes in the NBBO to be pegged to the midpoint of the NBBO, or, alternatively, pegged to the less aggressive of the midpoint of the NBBO or one Minimum Price Variation
The Exchange proposes to not accept orders with a Discretionary Range in all Test Groups, including the Control Group, to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities. In sum, an order with a Discretionary Range has a displayed or non-displayed ranked price and size and an additional non-displayed “discretionary price”.
The Exchange proposes to re-price to the midpoint of the NBBO orders with a Non-Displayed instruction in Test Group Three that are priced in a permissible increment better than the midpoint of the NBBO. An order with a Non-Displayed instruction is not displayed on the Exchange.
A Market Maker Peg Order is a Limit Order that is automatically priced by the System at the Designated Percentage (as defined in Exchange Rule 11.20(d)(2)(D)) away from the then current NBB and NBO, or if no NBB or NBO, at the Designated Percentage away from the last reported sale from the responsible single plan processor in order to comply with the quotation requirements for Market Makers set forth in Exchange Rule 11.20(d).
The Exchange proposes to not accept Supplemental Peg Orders in Test Group Three in order to reduce risk in the System by eliminating unnecessary complexity based on infrequent current usage in Pilot Securities and their limited ability to execute under the Trade-at Prohibition. A Supplemental Peg Order is a non-displayed Limit Order that posts to the EDGA Book, and thereafter is eligible for execution at the NBB for buy orders and NBO for sell orders against routable orders that are equal to or less than the aggregate size of the Supplemental Peg Order interest available at that price.
Under the Display-Price Sliding process, an order eligible for display by the Exchange that, at the time of entry, would create a violation of Rule 610(d) of Regulation NMS by locking or crossing a Protected Quotation of an external market, will be ranked at the locking price in the EDGA Book and displayed by the System at one minimum price variation (
As described above, Exchange Rule 11.21(a)(6)(D) sets forth the Trade-at Prohibition, which is the prohibition against executions by a Member 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, unless an exception applies. Orders that are priced to execute at the midpoint of the NBBO are exempt from the Trade-at Prohibition. Therefore, to increase the execution opportunities and qualify for the mid-point exception to the Trade-at Prohibition, the Exchange proposes to rank orders in Test Group Three that are subject to the Display-Price Sliding process at the midpoint of the NBBO in the BZX Book and display such orders one minimum price variation below the current NBO (for bids) or one minimum price variation above the current NBB (for offers).
The Exchange also proposes to cancel orders subject to Display-Price Sliding in Test Group Three that are only to be adjusted once and not multiple times in the event the NBBO widens and a contra-side order with a Non-Displayed instruction is resting on the EDGA Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to the increased minimum quoting increments under the Plan, the Exchange is unable to safely re-price an order subject to single Display-Price Sliding in Test Group Three to the original locking price in such circumstances and doing so would add additional System complexity and risk. As discussed above, the Exchange proposes to rank orders in Test Group Three subject to the Display-Price Sliding process at the midpoint of the NBBO. In the event the NBBO changes such that an order subject to Display-Price Sliding would not lock or cross a Protected Quotation of an external market, the order will receive a new timestamp, and will be displayed at the order's limit price.
Currently, both Interpretation and Policy .03 to Rule 11.21(a) and Interpretation and Policy .11 to Rule 11.21(b) state that Rule 11.21 shall be in effect during a pilot period to coincide with the pilot period for the Plan (including any extensions to the pilot period for the Plan). The Exchange proposes to include this language at the beginning of Rule 11.21 and, therefore, proposes to delete both Interpretation and Policy .03 to Rule 11.21(a) and Interpretation and Policy .11 to Rule 11.21(b) as those provisions would be redundant and unnecessary. The Exchange also proposes to amend the last sentence of Rule 11.21(a)(4) to specify that the current permissible price increments are set forth under Exchange Rule 11.6(i), Minimum Price Variation.
If the Commission approves the proposed rule change, the proposed rule change will be effective upon Commission approval and shall 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 the proposed changes regarding Market Orders, MidPoint Peg Orders, Market Maker Peg Orders, and Display-Price Sliding are consistent with the Act because they are intended to modify the Exchange's System to comply with the provisions of the Plan, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act. To the extent that these proposals are intended to comply with the Plan, the Exchange believes that these proposals are in furtherance of the objectives of the Plan, as identified by the Commission, and is therefore consistent with the Act.
The Exchange also believes that its proposed changes to orders with a Market Peg instruction, orders with a Discretionary Range, orders with a Non-Displayed instruction, Supplemental Peg Orders, and Display-Price Sliding are also consistent with the Act because they are intended to eliminate unnecessary System complexity and risk based on the de minimis current usage of such order types and instructions in Pilot Securities and/or their limited ability to execute under the Plan's minimum trading and quoting increments or Trade-at Prohibition.
The Commission adopted Regulation Systems Compliance and Integrity (“Regulation SCI”) in November 2014 to strengthen the technology infrastructure of the U.S. securities markets.
In addition, each of these proposed changes would have a de minimis to zero impact on the data reported pursuant to the Plan. As evidenced above, orders with a Market Peg instruction, orders with a Discretionary Range, the alternative pegging functionality of MidPoint Peg Orders, and Supplemental Peg Orders are infrequently used in Pilot Securities or the execution of such orders would be scarce due to the Plan's minimum trading and quoting requirement and Trade-at Prohibition. The limited usage and execution scenarios do not justify the additional system complexity which would be created by modifying the System to support such order types in order to comply with the Plan. Therefore, the Exchange believes each proposed change is a reasonable means to ensure that the System's integrity, resiliency, and availability continues to promote the maintenance of fair and orderly markets. Due to the additional complexity, limited usage and execution opportunities, the Exchange believes it is not unfairly discriminatory to apply the changes proposed herein to only Pilot Securities as such changes are necessary to reduce complexity and ensure continued System resiliency in accordance with the requirements of Regulation SCI. The Exchange also believes the proposed changes to orders with a Non-Displayed instruction, and orders subject to the Display-Price
The Exchange also believes it is reasonable and appropriate to cancel an order subject to the single Display-Price Sliding process in Test Group Three in the event that the NBBO widens and a contra-side order with a Non-Displayed instruction is resting on the EDGA Book at the price to which the order subject to Display-Price Sliding would be adjusted. Due to technological limitations and the Plan's increased minimum quoting increments, the Exchange is unable to safely re-program its System to re-price such orders to the original locking price in such circumstances. The Exchange also anticipates that the scenario under which it proposes to cancel the Display-Price Sliding order will be infrequent in Tick Pilot Securities. Users who prefer an execution in such a scenario may elect to use the multiple Display-Price Sliding process. Therefore, the Exchange believes it is consistent with the Act to set forth this scenario in its rules so that Users will understand how the System operates and how their orders would be handled in this discrete scenario.
Lastly, the Exchange believes the ministerial changes to Rule 11.21 are also consistent with the Act as they would: (i) Clarify a provision under paragraph (a)(4); and (ii) remove redundant provisions from the rule.
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 is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan, reduce System complexity and enhance resiliency. The Exchange also notes that the proposed rule change will apply equally to all Members that trade Pilot Securities.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
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. In particular, the Commission seeks comment on the issue described below.
In the Approval Order, the Commission stressed the importance of testing the impact of wider tick sizes on the trading and liquidity of the securities of small capitalization companies, and doing so in a way that produces robust results that inform future policy decisions.
While the Exchange states that the proposed rule change describes the system changes necessary to implement the Pilot, the Commission notes that the scope of the proposed changes extends beyond those required for compliance with the Plan, and would eliminate certain order types for Pilot Securities during the Pilot Period, or modify their operation in ways not required by the Plan. For example, the Exchange proposes not to accept Market Pegged Orders, Discretionary Orders, and Supplemental Peg Orders, and certain types of Mid-Point Peg Orders, in some or all Test Groups of Pilot Securities for the duration of the Pilot Period.
The Commission is concerned that proposed rule changes, other than those necessary for compliance with Plan, that are targeted at Pilot Securities, that have a disparate impact on different Test Groups and the Control Group, and that are to apply temporarily only for the Pilot Period, could bias the results of the Pilot and undermine the value of the data generated in informing future policy decisions. Accordingly, the Commission is concerned that the proposed rule change may not be consistent with Act, including Section 6(b)(5) thereof and Rule 608 of Regulation NMS, or with the Plan.
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
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to update cross-references and make other non-substantive changes within FINRA rules, due in part to the adoption of a new consolidated FINRA rule.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA has been developing a consolidated rulebook (“Consolidated FINRA Rulebook”).
The proposed rule change would make some of those changes, as well as other non-substantive changes unrelated to the adoption of rules in the Consolidated FINRA Rulebook.
First, the proposed rule change would update rule cross-references to reflect the adoption of a consolidated investment company securities rule. On June 9, 2016, FINRA filed with the SEC a proposed rule change, for immediate effectiveness, to adopt NASD Rule 2830 as FINRA Rule 2341 (Investment Company Securities), without any substantive changes. As part of that rule filing, FINRA also deleted in its entirety NASD Rule 2830.
Second, the proposed rule change would make technical changes to FINRA Rules 6191 (Compliance with Regulation NMS Plan to Implement a Tick Size Pilot Program)
Finally, the proposed rule change would also delete from FINRA Funding Portal Rule 100 the reference to FINRA Dispute Resolution, Inc. to reflect the merger of FINRA Dispute Resolution, Inc. into and with FINRA.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, so that FINRA can implement the proposed rule change to coincide with the effective dates of the affected rules. The implementation date for the proposed changes to FINRA Rules 2320 and 6630, Funding Portal Rule 100, and the proposed deletion of the NASD Rule 2800 Series heading and NASD Rule 2870 will be July 9, 2016. The implementation date for the changes to FINRA Rules 6191 and 7440 will be October 3, 2016 and August 1, 2016, respectively, to coincide with the implementation date of the rules.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA 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 proposed rule change brings clarity and consistency to FINRA rules without adding any burden on firms.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
Under Rule 19b-4(f)(6) 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:
Department of State.
Notice.
The Department of State (the Department) is the lead Federal agency for implementation of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention), the Intercountry Adoption Act of 2000 (IAA), and the Intercountry Adoption Universal Accreditation Act of 2012 (UAA). Among other things, the IAA and UAA give the Secretary of State responsibility, by entering into agreements with one or more qualified entities and designating such entities as accrediting entities, for the accreditation of agencies and approval of persons to provide adoption services in intercountry adoptions. This notice is to inform the public that on July 11, 2016, the Department entered into an agreement with the Council on Accreditation (COA) designating COA as an accrediting entity (AE) for an additional five years.
The Memorandum of Agreement between the U.S. Department of State Bureau of Consular Affairs and the Council on Accreditation (2016 MOA) remains largely consistent with the terms of the MOA signed on July 12, 2006 by Maura Harty, Assistant Secretary for Consular Affairs, U.S. Department of State and signed on July 6, 2006 by Richard Klarberg, President and Chief Executive Officer, COA. However, the 2016 MOA has been updated to reflect enactment of the UAA and to remove obsolete references, while further refining the role and responsibilities of the accrediting entity and taking into account subsequent updates to the intercountry adoption accreditation regulations in 22 CFR part 96. The text of the 2016 MOA is included in its entirety at the end of this Notice.
Valerie Barlow at 202-485-6347. Hearing or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1-800-877-8339.
The Department, pursuant to section 202(a) of the IAA, must enter into an agreement with at least one qualified entity and designate it as an accrediting entity. Accrediting entities may be (1) nonprofit private entities with expertise in developing and administering standards for entities providing child welfare services; or (2) state adoption licensing bodies that have expertise in developing and administering standards for entities providing child welfare services and that accredit only agencies located in that state. Both nonprofit accrediting entities and state accrediting entities must meet any other criteria that the Department may by regulation establish. COA is a nonprofit private entity with expertise in developing and administering standards for entities providing child welfare services throughout the United States.
The final rule on accreditation of agencies and approval of persons (22 CFR part 96) was published in the
Through the Department's ongoing monitoring and oversight of COA, which includes an annual performance review, the Department observed that COA's performance of its duties as an accrediting entity is in substantial compliance with the IAA, UAA and regulations set forth in Title 22 of the Code of Federal Regulations, part 96. Therefore, the Department has renewed the designation of COA as an AE.
The Department of State, Bureau of Consular Affairs (Department), and the Council on Accreditation (COA), with its principal office located at 45 Broadway, 29th floor, New York, NY
The Department enters into this agreement pursuant to Sections 202 and 204 of the IAA, 22 CFR part 96, and Delegation of Authority 261. COA has full authority to enter into this MOA pursuant to a resolution passed by its Board of Trustees dated July 6, 2016, which resolution authorizes Richard Klarberg as its President & CEO to execute this agreement on behalf of COA.
For purposes of this memorandum of agreement, terms used here that are defined in 22 CFR 96.2 shall have the same meaning as they have in 22 CFR 96.2.
The Parties AGREE AS FOLLOWS:
The Department hereby designates COA as an accrediting entity and thereby authorizes it to accredit agencies and approve persons to provide adoption services in intercountry adoption cases, in accordance with the procedures and standards set forth in 22 CFR part 96, and to perform all of the accrediting entity functions set forth in 22 CFR 96.7(a).
(1) COA agrees to perform all accrediting entity functions set forth in 22 CFR 96.7(a) and to perform its functions in accordance with the Convention, the IAA, the Intercountry Adoption Universal Accreditation Act of 2012 (UAA), Public Law 112-276, Part 96 of 22 CFR, and any other applicable regulations, and as additionally specified in this agreement. In performing these functions, COA will operate under policy direction from the Department regarding U.S. obligations under the Convention and regarding the functions and responsibilities of an accrediting entity under the IAA, UAA, and any other applicable regulations.
(2) COA will take appropriate staffing, funding, and other measures to allow it to carry out all of its functions and fulfill all of its responsibilities, and will use the adoptions tracking system and the Complaint Registry (ATS/CR) as directed by the Department, including by updating required data fields in a timely fashion.
(3) In carrying out its accrediting entity functions COA will:
(a) Make decisions on accreditation and approval in accordance with the procedures set forth in 22 CFR part 96 and using only the standards in subpart F of 22 CFR part 96 and the substantial compliance weighting system approved by the Department pursuant to para. 5, Article 3 below;
(b) charge applicants for accreditation or approval only fees approved by the Department pursuant to para. 4, Article 3 below;
(c) review complaints, including complaints regarding conduct alleged to have occurred overseas, in accordance with subpart J of 22 CFR part 96 and the additional procedures approved by the Department pursuant to paragraphs 3(c) and 3(d) in Article 3, below. COA will exercise its discretion in determining which methods are most appropriate to review complaints regarding conduct alleged to have occurred overseas. This may, when appropriate, include a referral to the Department and/or other appropriate law enforcement authorities for potential investigation of complaints relating to possible civil or criminal violation of IAA section 404 or other possible criminal activity;
(d) take adverse actions against accredited agencies and approved persons in accordance with subpart K of 22 CFR part 96, and cooperate with the Department in any case in which the Department considers exercising its adverse action authorities because the accrediting entity has failed or refused after consultation with the Department to take what the Department considers to be appropriate enforcement action;
(e) assume full responsibility for defending adverse actions in court proceedings, if challenged by the adoption service provider or the adoption service provider's board or officers;
(f) refer an adoption service provider to the Department for debarment if, but only if, it concludes after review that the adoption service provider's conduct meets the standards for action by the Secretary set out in 22 CFR 96.85;
(g) promptly report any change in the accreditation or approval status of an adoption service provider to the relevant state licensing authority;
(h) maintain and use only the required procedures approved by the Department and those procedures presented to the Department pursuant to Article 3 of this agreement whenever they apply;
(i) COA may consult with the Department, when needed, to solicit greater clarity regarding the meaning of relevant laws and regulations.
(1)
(a) Maintain forms, training materials, and evaluation practices;
(b) assist in conducting or participate in any joint training sessions;
(c) develop and maintain resources to assist applicants for accreditation and approval in achieving substantial compliance with the applicable standards.
(2)
(3)
(a) To evaluate whether a candidate for accreditation meets the applicable eligibility requirements set forth in 22 CFR part 96;
(b) to carry out its annual monitoring duties;
(c) to review complaints or information referred to it through the Complaint Registry or from the Department directly;
(d) to review complaints that it receives about its own actions as an accrediting entity for adoption service providers;
(e) to make the public disclosures required by 22 CFR 96.91; and
(f) to ensure the reasonableness of charges for the travel and maintenance of its site evaluators, such as for travel, meals, and accommodations, which charges shall be in addition to the fees charged under 22 CFR 96.8.
(4)
(a) COA will maintain a fee schedule for accreditation and approval services that meets the requirements of 22 CFR 96, and update these, subject to approval by the Department. Fees will be set based on the principle of recovering no more than the full cost, as defined in OMB Circular A-25 paragraph 6(d)(1), of accreditation and approval services. COA will maintain a fee schedule developed using this methodology together with
(b) The approved fee schedule can be amended with the approval of the Department.
(5)
(a) COA will maintain and update a substantial compliance weighting system as described in 22 CFR 96 and as approved by the Department.
(b) In maintaining the systems described in paragraph (a) of this section, COA will coordinate with any other accrediting entities, and consult with the Department to ensure consistency between the systems used by accrediting entities. These systems can be amended with the approval of the Department.
(1)
(a) COA will maintain and fund a computer and internet connection for use with the ATS/CR that meets system requirements set by the Department;
(b) The Department will provide software or access tokens needed by individuals for secure access to the ATS/CR and facilitate any necessary training for use of the ATS/CR.
(2)
(3)
(4)
(1) To facilitate oversight and monitoring by the Department, COA will:
(a) Provide copies of its forms and other materials to the Department and give Department personnel the opportunity to participate in any training sessions for its evaluators or other personnel;
(b) allow the Department to inspect all records relating to its accreditation functions and responsibilities and provide to the Department copies of such records as requested or required for oversight, including to evaluate renewal or maintenance of the accrediting entity's designation, and for purposes of transferring adoption service providers to another accrediting entity;
(c) submit to the Department by a date agreed upon by the Parties an annual declaration signed by the President and Chief Executive Officer confirming that COA is complying with the IAA, UAA, 22 CFR part 96, any other applicable regulations, and this agreement in carrying out its functions and responsibilities;
(d) make appropriate senior-level officers available to attend a yearly performance review meeting with the Department;
(e) immediately report to the Department events that have a significant impact on its ability to perform its functions and responsibilities as an accrediting entity, including financial difficulties, changes in key personnel or other staffing issues, legal or disciplinary actions against the organization, and conflicts of interest;
(f) notify the Department of any requests for information relating to its role as an accrediting entity under the IAA and UAA or Department functions or responsibilities that it receives from Central Authorities of other countries that are party to the Convention, or any other competent authority (except for routine requests concerning accreditation, temporary accreditation, or approval status or other information publicly available under subpart M of Part 96), and consult with the Department before releasing such information;
(g) consult immediately with the Department about any issue or event that may affect compliance with the IAA, UAA, or U.S. compliance with obligations under the Convention.
(2)
(3)
(a) The Department will notify COA in writing of the identified deficiencies in its performance and the time period in which the Department expects correction of the deficiencies;
(b) COA will respond in writing to either explain the actions that it has taken or plans to take to correct the deficiencies or to demonstrate that the Department's concerns are unfounded within 10 business days;
(c) upon request, the Department also will meet with the accrediting entity by teleconference or in person;
(d) if the Department, in its sole discretion, is not satisfied with the actions or explanation of COA, it will notify COA in writing of its decision to suspend or cancel COA's designation and this agreement;
(e) COA will stop or suspend its actions as an accrediting entity as directed by the Department in the notice of suspension or cancellation, and cooperate with any Departmental instructions in order to transfer adoption service providers it accredits (including temporarily accredits) or approves to another accrediting entity, including by transferring fees collected by COA for services not yet performed.
(4) COA will follow its procedures for reviewing complaints against COA received by the Department or referred to the Department because the complainant was not satisfied with COA's resolution of the complaint. These complaint procedures may be incorporated into the Department's general procedures for handling instances in which the Department is considering whether a deficiency in the accrediting entity's performance may warrant suspension or cancellation of its designation.
(1)
(a) COA shall disclose to the Department the name of any organization of which it is a member that also has as members intercountry adoption service providers. COA shall demonstrate to the Department that it has procedures in place to prevent any such membership from influencing its actions as an accrediting entity and
(b) COA shall identify for the Department all members of its board of directors or other governing body, employees, and site evaluators who also serve as officers, directors, employees, or owners of adoption service providers. COA shall demonstrate it has procedures in place to ensure that any such relationships will not influence any accreditation or approval decisions, and shall maintain and use these procedures.
(c) COA shall disclose to the Department any other situation or circumstance that may create the appearance of a conflict of interest.
(2)
(1) COA's principal point of contact for communications relating to its functions and duties as an accrediting entity will be the Director of Intercountry Adoption Accreditation. The Department's principal point of contact for communication is the Accrediting Entity Liaison officer in the Office of Children's Issues, Office of Overseas Citizens Services, Bureau of Consular Affairs, U.S. Department of State.
(2) The parties will keep each other currently informed in writing of the names and contact information for their principal points of contact. As of the signing of this Agreement, the respective principal points of contact are as set forth in Attachment 1.
(1) COA certifies that it will comply with all requirements of applicable State and Federal law.
(1)
(a) This agreement is not intended to have any effect on any activities of COA that are not related to its functions as an accrediting entity for adoption service providers providing adoption services in intercountry adoptions.
(b) Nothing in this agreement shall be deemed to be a commitment or obligation to provide any Federal funds.
(c) All accrediting entity functions and responsibilities authorized by this agreement are to occur only during the duration of this agreement.
(d) Nothing in this agreement shall release COA from any legal requirements or responsibilities imposed on the accrediting entity by the IAA, UAA, 22 CFR part 96, or any other applicable laws or regulations.
(2)
(3)
(4)
(5)
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. 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 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to September 19, 2016.
You may submit comments by any of 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
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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 Department of State hereby gives notice that, on May 24, 2016, it received an application for a Presidential Permit to expand the Pembina-Emerson Land Port of Entry (LPOE) on the U.S.-Canada Border at Pembina, North Dakota, and Emerson, Manitoba, Canada. The North Dakota Department of Transportation filed this application. The Department of State's jurisdiction over this application is based upon Executive Order 11423 of August 16, 1968, as amended. As provided in E.O. 11423, the Department is circulating this application to relevant federal agencies for review and comment. Under E.O. 11423, the Department has the responsibility to determine, taking into account input from these agencies and other stakeholders, whether issuance of a Presidential Permit for the proposed expansion of this border crossing would serve the national interest. Interested members of the public are invited to submit written comments regarding this application on or before October 31, 2016, to the U.S.-Canada Border Affairs Officer, via email at
Contact the Canada Border Affairs Officer via email at
The application and supporting documents are available for review at
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 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:
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by the California Department of Transportation (Caltrans), pursuant to 23 U.S.C. 326.
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(
For Caltrans: Kevin Hovey, Chief, Environmental Branch D, California Department of Transportation—District 11, 4050 Taylor Street, San Diego, CA 92110, 8 a.m. to 5 p.m., 619-688-0240,
Effective May 21, 2007 and renewed May 31, 2016, FHWA assigned, and Caltrans assumed, all environmental responsibilities for this project pursuant to 23 U.S.C. 326 CE Assignment Memorandum of Understanding. Notice is hereby given that Caltrans has taken final agency actions subject to 23 U.S.C. 139(
1. Council on Environmental Quality regulations;
2. National Environmental Policy Act (NEPA);
3. Moving Ahead for Progress in the 21st Century Act (MAP-21);
4. Department of Transportation Act of 1966;
5. Federal Aid Highway Act of 1970;
6. Clean Air Act Amendments of 1990;
7. Department of Transportation Act of 1966, Section 4(f);
8. Clean Water Act of 1977 and 1987;
9. Endangered Species Act of 1973;
10. Migratory Bird Treaty Act;
11. National Historic Preservation Act of 1966, as amended;
12. Historic Sites Act of 1935;
13. Executive Order 11990, Protection of Wetlands
14. Executive Order 13112, Invasive Species; and,
15. Executive Order 11988, Floodplain Management.
23 U.S.C. § 139(
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Notice of information collections to be submitted to Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act of 1995 (PRA).
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the OCC, the Board, and the FDIC (the agencies) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid OMB control number. On April 14, 2016, the agencies, under the auspices of the Federal Financial Institutions Examination Council (FFIEC), requested public comment for 60 days on a proposal to extend, with revision, the Country Exposure Report (FFIEC 009) and the Country Exposure Information Report (FFIEC 009a), which are currently approved collections of information. The comment period for this notice expired on June 13, 2016. The agencies received one comment letter. The agencies are now submitting a request to OMB for review and approval of the extension, with revision, of the FFIEC 009 and FFIEC 009a. The proposed revisions would take effect September 30, 2016.
Comments must be submitted on or before August 19, 2016.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the OMB control number, will be shared among the agencies.
You may personally inspect and photocopy comments at the OCC, 400 7th Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling 202-649-6700 or for persons who are deaf or hard of hearing, TTY, 202-649-5597. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments.
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comments or supporting materials that you consider confidential or inappropriate for public disclosure.
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All public comments are available from the Board's Web site at
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503; by fax to 202-395-6974; or by email to
For further information about the revisions discussed in this notice, please contact any of the agency clearance officers whose names appear below. In addition, copies of the FFIEC 009 and FFIEC 009a reporting forms can be obtained at the FFIEC's Web site (
Proposal to request approval from OMB of the
These information collections are mandatory under the following statutes: 12 U.S.C. 161 and 1817 (national banks), 12 U.S.C. 1464 (federal savings associations), 12 U.S.C. 248(a)(1) and (2), 1844(c), and 3906 (state member banks and bank holding companies); 12 U.S.C. 1467a(b)(2)(A) (savings and loan holding companies); 12 U.S.C. 5365(a) (intermediate holding companies); and 12 U.S.C. 1817 and 1820 (insured state nonmember commercial and savings banks and insured state savings associations). The FFIEC 009 information collection is given confidential treatment (5 U.S.C. 552(b)(4) and (b)(8)). The FFIEC 009a information collection is not given confidential treatment.
The Country Exposure Report (FFIEC 009) is filed quarterly with the agencies and provides information on international claims of U.S. banks, savings associations, bank holding companies, and savings and loan holding companies that is used for supervisory and analytical purposes. The information is used to monitor the foreign country exposures of reporting institutions to determine the degree of risk in their portfolios and assess the potential risk of loss. The Country Exposure Information Report (FFIEC 009a) is a supplement to the FFIEC 009 and provides publicly available information on material foreign country exposures (all exposures to a country in excess of 1 percent of total assets or 20 percent of capital, whichever is less) of U.S. banks, savings associations, bank holding companies, and savings and loan holding companies that file the FFIEC 009 report. As part of the Country Exposure Information Report, reporting institutions also must furnish a list of countries in which they have lending exposures above 0.75 percent of total assets or 15 percent of total capital, whichever is less.
On April 14, 2016, the agencies published a notice in the
The agencies received one comment letter from a bankers' association indicating that it would submit data on certain divergent reporting practices observed across institutions with respect to the FFIEC 009 and FFIEC 009a in a supplemental submission. The letter did not comment on either of the changes proposed by the agencies. Any forthcoming data and comments on the FFIEC 009 and FFIEC 009a reporting requirements from this association would be considered for possible inclusion in a separate future notice of agency information collection activities. The agencies are now submitting a request to OMB for review and approval of the extension, with revision, of the FFIEC 009 and FFIEC 009a that incorporates the two changes proposed in the April 14 notice.
The agencies invite comment on the following topics related to this collection of information:
(a) Whether the information collections are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
(b) The accuracy of the agencies' estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this joint notice will be shared among the agencies. All comments will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is issuing regulations governing related Letters of Authorization (LOAs) in response to a request from Apache Alaska Corporation (Apache) for authorization to take marine mammals, by harassment, incidental to its oil and gas exploration seismic survey program in Cook Inlet, Alaska. This action will put the applicant into compliance with the Marine Mammal Protection Act (MMPA) and minimize impacts to marine mammals in Cook Inlet.
Effective August 19, 2016 through July 20, 2021.
An electronic copy of the application, containing a list of references used in this document, and the associated Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be obtained by writing to the address specified above, telephoning the contact listed below (see
Sara Young, Office of Protected Resources, NMFS, (301) 427-8484.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), 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 July 11, 2014, NMFS received a complete application from Apache requesting authorization for the take of nine marine mammal species incidental to an oil and gas exploration seismic program in Cook Inlet, AK, over the course of 5 years. On February 23, 2015, NMFS published a notice in the
The activity will occur for approximately 8-9 months annually over the course of a 5-year period between August 2016 and July 2021. In-water airguns will be active for approximately 2-3 hours during each of the slack tide periods. There are approximately four slack tide periods in a 24-hour period; therefore, airgun operations will be active during approximately 8-12 hours per day, if weather conditions allow. The following specific aspects of the activity are likely to result in the take of marine mammals: seismic airgun operations. Take, by Level B Harassment only, of individuals of nine species or stocks of marine mammals is anticipated to result from the specified activity.
Apache has acquired over 850,000 acres of oil and gas leases in Cook Inlet since 2010 with the primary objective to explore for and develop oil and gas resources in Cook Inlet. Apache will conduct oil and gas seismic surveys in Cook Inlet, Alaska, in an area that encompasses approximately 5,684 km
The operation will utilize two source vessels, three cable/nodal deployment and retrieval operations vessels, a mitigation/monitoring vessel, a node re-charging and housing vessel, and two small vessels for personnel transport and node support in the extremely shallow waters in the intertidal area. Water depths for the program will range from 1-128 m (0-420 ft).
Seismic surveys are designed to collect bathymetric and sub-seafloor data that allow the evaluation of potential shallow faults, gas zones, and archeological features at prospective
Apache began seismic onshore acquisition on the west side of Cook Inlet in September 2011 and offshore acquisition in May 2012 under an Incidental Harrassent Authorization (IHA) issued by NMFS for April 30, 2012, through April 30, 2013 (77 FR 27720, May 11, 2012). Apache continued seismic data acquisition for approximately 3 months in spring and summer 2014 in compliance with an IHA issued on March 4, 2014 (79 FR 13626, March 11, 2014). Apache reported a total of 29 level B harassment exposures from the 2014 IHA comprising beluga whales, humpback whales, harbor seals, and harbor porpoises, which was well within the scope of their authorization.
Apache will conduct offshore/transition zone seismic operations for approximately 8 to 9 months in offshore areas in open water periods from March 1 through December 31 annually over the course of 5 years. During each 24-hour period, seismic support activities may be conducted throughout the entire period; however, in-water airguns will only be active for approximately 2-3 hours during each of the slack tide periods. There are approximately four slack tide periods in a 24-hour period; therefore, airgun operations will be active during approximately 8-12 hours per day, if weather conditions allow. Two airgun source vessels will work concurrently on the spread, acquiring source lines approximately 12 km (7.5 mi) in length. Apache anticipates that a crew can acquire approximately eight of these 12km lines per day, assuming a crew can work 8-12 hours per day. Thus, the actual survey duration each year will take approximately 160 days over the course of 8 to 9 months. The vessels will be mobilized out of Homer or Anchorage with resupply runs occurring multiple times per week out of Homer, Anchorage, or Nikiski.
Each phase of the Apache program would cover land, intertidal transition zone, and marine environments in Cook Inlet, Alaska. However, only the portions occurring in the intertidal zone and marine environments have the potential to take marine mammals. The land-based portion of the program would not result in sound levels that would rise to the level of a marine mammal take.
The location of Apache's acquisition plan is depicted in Figure 1 in this document. The total seismic survey data acquisition locations encompass approximately 5,684 km
The Notice of Proposed Rulemaking (80 FR 9510, February 23, 2015) contains a full detailed description of the 3D seismic survey, including the recording system, sensor positioning, and seismic source. That information has not changed and is therefore not repeated here.
A Notice of Proposed Rulemaking was published in the
All of the public comment letters received on the Notice of Proposed Rulemaking (80 FR 9510, February 23, 2015) are available on our Web site at:
Based on the scientific evidence available, NMFS determined that the impacts of the 3D seismic survey program, which are primarily from acoustic exposure, would meet these standards. Moreover, Apache proposed and NMFS has required in the regulations a rigorous mitigation plan to reduce impacts to Cook Inlet beluga whales and other marine mammals to the lowest level practicable, including measures to power down or shutdown airguns if any beluga whale is observed approaching or within the Level B harassment zone and restricting activities within a 10 mi (16 km) radius of the Susitna Delta from April 15 through October 15, which is an important area for beluga feeding and calving in the spring and summer months. This shutdown measure is more restrictive than the standard shutdown measures typically applied, and combined with the Susitna Delta exclusion (minimizing adverse effects to foraging), is expected to reduce both the scope and severity of potential harassment takes, ensuring that there are no energetic impacts from the harassment that would adversely affect reproductive rates or survivorship.
Our analysis indicates that issuance of these regulations will not contribute to or worsen the observed decline of the Cook Inlet beluga whale population. Additionally, the ESA Biological Opinion determined that the issuance of an IHA is not likely to jeopardize the continued existence of the Cook Inlet beluga whales (or the western distinct population segment of Steller sea lions) or destroy or adversely modify Cook Inlet beluga whale critical habitat. The Biological Opinion also outlined Reasonable and Prudent Measures and Terms and Conditions to reduce impacts, which have been incorporated into the IHA. Therefore, based on the analysis of potential effects, the parameters of the seismic survey, and the rigorous mitigation and monitoring program, NMFS determined that the activity would have a negligible impact on the population. The impacts from other past and ongoing anthropogenic activities are incorporated into the negligible impact analysis via their impacts on the environmental baseline (
Moreover, the seismic survey would take only small numbers of marine
NMFS has made the necessary findings to issue the 5-yr regulations for Apache's activities. Nonetheless, NMFS agrees that caution is appropriate in the management of impacts on this small resident beluga population with declining abundance and constricted range. Accordingly, NMFS will issue annual LOAs, as appropriate, instead of a single 5-year LOA option. This will allow the agency to determine annually, in consideration of Apache monitoring reports and any other new information on impacts or Cook Inlet belugas (or other affected species), whether the level of taking will be consistent with the findings made for the total taking allowable under these 5-year regulations before issuing an LOA. Annual LOAs will also allow for, if necessary and appropriate, a public comment period. Additionally, this rule contains an adaptive management provision that allows for the modification of mitigation or monitoring requirements at any time (in response to new information) to ensure the least practicable adverse impact on the affected species and maximize the effectiveness of the monitoring program. We also note the MMPA and NMFS' implementing regulations allow for an LOA to be withdrawn or suspended, as appropriate, if, after notice and opportunity for public comment, we determine that the taking allowed is having, or may have, more than a negligible impact on the species or stock (among other circumstances). 16 U.S.C. 1371(a)(5)(B); 50 CFR 216.106(e).
Moreover, the model (or other numerical methods for estimating take) does not take into consideration the rigorous mitigation protocols that will be implemented by Apache, which will likely reduce the number of actual Level B harassment takes of Cook Inlet beluga whales. As mentioned previously, the rule contains a condition restricting Apache's airgun operations within 10 mi (16 km) of the mean higher high water line of the Susitna Delta from
Survey duration was appropriately considered in the estimations by multiplying density by area of ensonification by number of survey days. NMFS does not calculate takes on an hourly basis, and, additionally, the multiple hours surveyed within a day are reflected in the area of ensonification, which considers the distance Apache can move within a day and is therefore larger than what would be covered in one hour. Additionally, as NMFS has used the density estimate from NMFS aerial surveys, multiplied by the area ensonified per day, multiplied by the number of days, this calculation produces the number of instances of exposure during the seismic survey. This is likely an overestimate of individuals taken by Level B harassment, as a single individual can be exposed on multiple days over the course of the survey, especially when a small seismic patch is shot over a period of multiple days. While protected species observers (PSOs) cannot detect every single animal within the Level B harassment zone, monitoring reports from similar past activities indicate that sightings did not exceed calculated projected take.
The comment that NMFS disregarded the best available evidence on the potential for temporary and permanent threshold shift on mid- and high-frequency cetaceans and on pinnipeds does not contain any specific recommendations. We acknowledge there is more recent information available bearing on the relevant exposure levels for assessing temporary and permanent hearing impacts. (See,
1. Use of quieting technologies, such as vibroseis and gravity gradiometry, to reduce or eliminate the need for airguns, and delaying seismic acquisition in higher density areas until the alternative technology of marine vibroseis becomes available: Apache requested takes of marine mammals incidental to the seismic survey operations described in the rulemaking application, which identified airgun arrays as the technique Apache would employ to acquire seismic data. It would be inappropriate for NMFS to change the specified activity and it is beyond the scope of the request for takes incidental to Apache's operation of airguns and other active acoustic sources.
Apache knows of no alternative available technology scaled for industrial use that is reliable enough to meet the environmental challenges of operating in Cook Inlet. Apache is aware that many prototypes are currently in development, and may ultimately incorporate these new technologies into their evaluation process as the technologies become commercially viable. However, none of these technologies are currently ready for use on a large scale in Cook Inlet. As this technology is developed, Apache will evaluate its utility for operations in the Cook Inlet environment.
2. Required use of the lowest practicable source level in conducting airgun activity: Apache determined that the 2400 in
3. Seasonal exclusions around river mouths, including early spring (pre-April 14) exclusions around the Beluga River and Susitna Delta, and avoidance of other areas that have a higher probability of beluga occurrence: NMFS has required a 10-mile (16 km) exclusion zone around the Susitna Delta (which includes the Beluga River) in this regulation. This mitigation mirrors a measure in the Incidental Take Statement for the 2012 and 2013 Biological Opinions. Seismic survey operations involving the use of airguns will be prohibited in this area between April 15 and October 15. In both the MMPA and ESA analysis, NMFS determined that this date range is sufficient to protect Cook Inlet beluga whales and the critical habitat in the Susitna Delta. While data indicate that belugas may use this part of the inlet year round, peak use occurs from early May to late September. NMFS added a 2-week buffer on both ends of this peak usage period to add extra protection to feeding and calving belugas. NMFS also expanded the exclusion zone to start from the mean higher high water line to the mean lower low water line. (In addition, the Alaska Department of Fish and Game (ADF&G) prohibits the use of airguns within 1 mi (1.6 km) of the mouth of any stream listed by the ADF&G on the Catalogue of Waters Important for the Spawning, Rearing, or Migration of Anadromous Fishes. See additional explanation in “Mitigation Measures Considered but not Required” section, later in this document.)
4. Limitation of the mitigation airgun to the longest shot interval necessary to carry out its intended purpose: This general comment contained no specific recommendations. Apache requires shot intervals of 50m at a speed of 2-4 knots to obtain the information from their survey. However NMFS has added a mitigation measure that Apache reduce the shot interval for the mitigation gun to one shot per minute.
5. Immediate suspension of airgun activity, pending investigation, if any beluga strandings occur within a distance of 19km (two times the 160dB isopleth) the survey area: If NMFS becomes aware of any live beluga strandings, Apache will be notified and required to shutdown if the stranding event is within 19km (two times the 160 dB isopleth) of Apache's operations until the circumstances of the stranding are reviewed. The regulation also requires Apache to immediately cease activities and report unauthorized takes of marine mammals, such as live stranding, injury, serious injury, or mortality. NMFS will review the circumstances of Apache's unauthorized take and determine if additional mitigation measures are needed before activities can resume to minimize the likelihood of further unauthorized take and to ensure MMPA compliance. Apache may not resume activities until notified by NMFS. Separately, the regulation includes measures to be implemented if injured or dead marine mammals are sighted and the cause cannot be easily determined. In those cases, NMFS will review the circumstances of the stranding event while Apache continues with operations.
6. Establishment of a larger exclusion zone for beluga whales that is not predicated on the detection of whale aggregations or cow-calf pairs: Both the proposed rule notice and the issued regulations contain a requirement for Apache to delay the start of airgun use or shutdown the airguns if a beluga whale is visually sighted or detected by passive acoustic monitoring approaching or within the 160-dB disturbance zone until the animal(s) are no longer present within the 160-dB zone. The measure applies to the sighting of any single beluga whale, not just sightings of groups or cow-calf pairs.
7. Identifying compensatory mitigation such as habitat restoration to be undertaken by industry within the Inlet: NMFS is issuing an Authorization for incidental take of marine mammals for Apache's seismic survey program. NMFS is required to consider the practicability of implementation of the measure as well as proven or likely effectiveness of the measure. NMFS is not currently aware of literature demonstrating the effectiveness of habitat restoration on mitigating the effects of airgun noise. Additionally, NMFS considers effects to beluga habitat to be primarily acoustic and temporary in nature, which is difficult to mitigate.
8. Creating quiet zones in highly important habitat: NMFS agrees that reduction of noise in habitat known to be essential for marine mammals is also area that should be targeted for measures to reduce noise. This principle
Additionally, Joint Base Elmendorf-Fort Richardson, the National Marine Mammal Laboratory, and Alaska Department of Fish &Game conducted a 2012 study (Gillespie
In a similar comment, the NRDC expressed concern over the number of activities proposed in the same area for the same season referencing applications for: Furie, Bluecrest, Buccaneer, and Apache.
NMFS is currently aware of one additional proposal for seismic exploration in Cook Inlet for 2016. Additionally, there are applications submitted for one geophysical survey and one test well drilling operation, which is proposed for a site much farther south than any of the above mentioned operations.
For Cook Inlet belugas, NMFS derived a method to ensure that Apache take no more than 30 belugas annually, which is approximately 10 percent of the population. Using the Goetz
For harbor seals, it is likely the daily ensonified area produces an overestimate of individuals taken, as described in more details in the Estimated Take section. NMFS applied the survey method used by Apache, patch shooting, and applied the number of days required to shoot a patch to estimate the number of days an animal at a given haulout could be exposed. This is an average of 3 days, but no more than 5. When this factor is applied to the estimate of instances of exposures by using the ensonified daily area method, the number of exposed individual seals can be more reasonably estimated and is much lower than the number of instances of exposure, at 6,438. This number is appropriately reduced even further as individuals could be exposed at multiple patches. Separately, NMFS then considered the harbor seal densities alongside monitoring reports from Apache's work in 2012. NMFS looked at the monitoring reports from Apache's aerial surveys in June and used correction factors from the literature to determine the number of seals in the water. This number was also multiplied to match the number of Apache's proposed survey days (160) to yield a number of 8,250 instances of take, notably lower than 24,279. Additionally, in their 147 days of surveying, Apache reported sightings of 285 seals. While it is understood that visual observations likely underestimate the actual number of exposures, as all seals in the 160dB range are not visible, it is worth noting that the number of visual estimates is 131 times smaller than the calculated number of exposures using the daily ensonified area method. These methods are discussed in greater detail in the Takes Estimation section of this document, but in summary we concluded that not more than 25% of the population of harbor seals would be taken. The daily ensonified method results in an estimate of 24,279 instances of exposure, but this is likely an over-estimation of the number of instances of exposure and also does not represent the number of unique individuals in the population taken during the course of the survey. As explained in the Negligible Impact Determination and Small Numbers sections below, NMFS is able to make the necessary determinations for all species using the new take estimation methodology.
Response: Given the seasonal nature of beluga concentrations, and their tendency to congregate in areas near Knik Arm and Turnagain Arm in the summer months, NMFS believes that the Susitna River Delta exclusion zone of 10 nmi from the MLLW line between the Susitna and Beluga Rivers is sufficient closure to protect beluga use of that portion of their critical habitat during times of high use.
The marine mammal species under NMFS's jurisdiction that could occur near operations in Cook Inlet include four cetacean species: Beluga whale (
Of the nine marine mammal species likely to occur in the marine survey area, Cook Inlet beluga whales, Central
Pursuant to the ESA, critical habitat has been designated for Cook Inlet beluga whales and Steller sea lions. The action falls within critical habitat designated in Cook Inlet for beluga whales but is not within critical habitat designated for Steller sea lions. On April 11, 2011, NMFS announced the two areas of beluga whale critical habitat (76 FR 20180) comprising 7,800 km
There are several species of mysticetes that have been observed infrequently in lower Cook Inlet, including minke whale (
Cook Inlet beluga whales have not made significant progress towards recovery since they were listed as endangered in 2008. Data indicate that the Cook Inlet population of beluga whales has been decreasing at a rate of 0.6 percent annually between 2002 and 2012 (Allen and Angliss, 2014). One review of the status of the population indicated that there is an 80% chance that the population will decline further (Hobbs and Shelden, 2008).
Cook Inlet beluga whales reside in Cook Inlet year-round, although their distribution and density changes seasonally. Factors that are likely to influence beluga whale distribution within the inlet include prey availability, predation pressure, sea-ice cover and other environmental factors, reproduction, sex and age class, and human activities (Rugh
Beluga whales use several areas of the upper Cook Inlet for repeated summer and fall feeding. The primary hotspots for beluga feeding include the Big and Little Susitna rivers, Eagle Bay to Eklutna River, Ivan Slough, Theodore River, Lewis River, and Chickaloon River and Bay (NMFS, 2008). Availability of prey species appears to be the most influential environmental variable affecting Cook Inlet beluga whale distribution and relative abundance (Moore
Although there is considerable distributional overlap in the humpback whale stocks that use Alaska, the whales seasonally found in lower Cook Inlet are probably of the Central North Pacific stock. Listed as endangered under the ESA, this stock has recently been estimated at 7,469, with the portion of the stock that feeds in the Gulf of Alaska estimated at 2,845 animals (Allen and Angliss 2014). The Central North Pacific stock winters in Hawaii and summers from British Columbia to the Aleutian Islands (Calambokidis
Humpback use of Cook Inlet is largely confined to lower Cook Inlet. They have been regularly seen near Kachemak Bay during the summer months (Rugh
In general, killer whales are rare in upper Cook Inlet. Transient killer whales are known to feed on beluga whales, and resident killer whales are known to feed on anadromous fish (Shelden
Previously estimated density for harbor porpoises in Cook Inlet is 7.2 per 1,000 km
Dall's porpoise are widely distributed throughout the North Pacific Ocean including Alaska, although they are not found in upper Cook Inlet and the shallower waters of the Bering, Chukchi, and Beaufort Seas (Allen and Angliss 2014). Compared to harbor porpoise, Dall's porpoise prefer the deep offshore and shelf slope waters. The Alaskan population has been estimated at 83,400 animals (Allen and Angliss 2014), making it one of the more common cetaceans in the state. Dall's porpoise have been observed in lower Cook Inlet, including Kachemak Bay and near Anchor Point (Owl Ridge 2014), but sightings there are rare. There is a
Minke whales are the smallest of the rorqual group of baleen whales reaching lengths of up to 35 feet. They are also the most common of the baleen whales, although there are no population estimates for the North Pacific, although estimates have been made for some portions of Alaska. Zerbini
During Cook Inlet-wide aerial surveys conducted from 1993 to 2004, minke whales were encountered only twice (1998, 1999), both times off Anchor Point 16 miles northwest of Homer. A minke whale was also reported off Cape Starichkof in 2011 (A. Holmes, pers. comm.) and 2013 (E. Fernandez and C. Hesselbach, pers. comm.), suggesting this location is regularly used by minke whales, including during the winter. Recently, several minke whales were recorded off Cape Starichkof in early summer 2013 during exploratory drilling conducted there (Owl Ridge 2014). There are no records north of Cape Starichkof, and this species is unlikely to be seen in upper Cook Inlet. There is a chance of encountering this whale during seismic operations along the Kenai Peninsula in lower Cook Inlet.
Numbers of gray whales in Cook Inlet are small compared to the overall population (18,017 individuals). However, Apache marine mammal observers recorded nine sightings of nine individuals (including possible resights of the same animals) from May-July 2012. Of those sightings, seven were observed from project vessels, and two were observed from land-based observation stations. The eastern North Pacific gray whales observed in Cook Inlet are likely migrating to summer feeding grounds in the Bering, Chukchi, and Beaufort Seas, though a small number feed along the coast between Kodiak Island and northern California (Matkin, 2009; Carretta
Two species of pinnipeds may be encountered in Cook Inlet: Harbor seal and Steller sea lion.
Harbor seals inhabit the coastal and estuarine waters of Cook Inlet. Historically, harbor seals have been more abundant in lower Cook Inlet than in upper Cook Inlet (Rugh
Important harbor seal life functions, such as breeding and molting may occur within portions of Apache's survey area in June and August, but the co-occurrence is expected to be minimal. From November through January, harbor seals leave Cook Inlet to forage in Shelikof Strait (Boveng
Two separate stocks of Steller sea lions are recognized within U.S. waters: An eastern DPS, which includes animals east of Cape Suckling, Alaska; and a western DPS, which includes animals west of Cape Suckling (NMFS, 2008). Individuals in Cook Inlet are considered part of the western DPS, which is listed as endangered under the ESA.
Regional variation in trends in Steller sea lion pup counts in 2000-2012 is similar to that of non-pup counts (Johnson and Fritz, 2014). Overall, there is strong evidence that pup counts in the western stock in Alaska increased (1.45 percent annually). Between 2004 and 2008, Alaska western non-pup counts increased only 3%: Eastern Gulf of Alaska (Prince William Sound area) counts were higher and Kenai Peninsula through Kiska Island counts were stable, but western Aleutian counts continued to decline. Johnson and Fritz (2014) analyzed western Steller sea lion population trends in Alaska and noted that there was strong evidence that non-pup counts in the western stock in Alaska increased between 2000 and 2012 (average rate of 1.67 percent annually). However, there continues to be considerable regional variability in recent trends across the range in Alaska, with strong evidence of a positive trend east of Samalga Pass and strong evidence of a decreasing trend to the west (Allen and Angliss, 2014).
Steller sea lions primarily occur in lower, rather than upper Cook Inlet and are rarely sighted north of Nikiski on the Kenai Peninsula. NMFS aerial surveys conducted in June 2000-2012, primarily in lower Cook Inlet, indicated presence of 0 to 104 Steller sea lions. Haul-outs and rookeries are located near, but outside of Cook Inlet at Gore Point, Elizabeth Island, Perl Island, and Chugach Island (NMFS, 2008). No Steller sea lion haul-outs or rookeries are located in the vicinity of the seismic survey. Furthermore, no sightings of Steller sea lions were reported by Apache during the 2D test program in March 2011. During the 3D seismic survey, one Steller sea lion was observed from the
Apache's application contains more information on the status, distribution, seasonal distribution, and abundance of each of the species under NMFS jurisdiction mentioned in this document. Please refer to the application for that information (see
This section includes a summary and discussion of the ways that components (
Operating active acoustic sources, such as airgun arrays, has the potential for adverse effects on marine mammals. The majority of anticipated impacts would be from the use of acoustic sources.
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data. Southall
• Low frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 30 kHz;
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): Functional hearing is estimated to occur between approximately 200 Hz and 180 kHz;
• Phocid pinnipeds in Water: Functional hearing is estimated to occur between approximately 75 Hz and 100 kHz; and
• Otariid pinnipeds in Water: Functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.
As mentioned previously in this document, nine marine mammal species (seven cetacean and two pinniped species) are likely to occur in the seismic survey area. Of the four cetacean species likely to occur in Apache's project area, one is classified as a low-frequency cetacean (gray whale), two are classified as mid-frequency cetaceans (
The effects of sounds from airgun pulses might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent hearing threshold shifts, and non-auditory effects (Richardson
The biological significance of many of these behavioral disturbances is difficult to predict. The consequences of behavioral modification to individual fitness can range from none up to potential changes to growth, survival, or reproduction, depending on the context, duration, and degree of behavioral modification. Examples of behavioral modifications that could impact growth, survival or reproduction include: Drastic changes in diving/surfacing/swimming patterns that lead to stranding (such as those associated with beaked whale strandings related to
The likelihood and severity of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography, context of the exposure) and is also difficult to predict (Southall
Toothed whales. Few systematic data are available describing reactions of toothed whales to noise pulses. However, systematic work on sperm whales (Tyack
Seismic operators and marine mammal observers sometimes see dolphins and other small toothed whales near operating airgun arrays, but, in general, there seems to be a tendency for most delphinids to show some avoidance of seismic vessels operating large airgun systems. However, some dolphins seem to be attracted to the seismic vessel and floats, and some ride the bow wave of the seismic vessel even when large arrays of airguns are firing. Nonetheless, there have been indications that small toothed whales sometimes move away or maintain a somewhat greater distance from the vessel when a large array of airguns is operating than when it is silent (
Captive bottlenose dolphins and beluga whales exhibit changes in behavior when exposed to strong pulsed sounds similar in duration to those typically used in seismic surveys (Finneran
Observers stationed on seismic vessels operating off the United Kingdom from 1997-2000 have provided data on the occurrence and behavior of various toothed whales exposed to seismic pulses (Stone, 2003; Gordon
Reactions of toothed whales to large arrays of airguns are variable and, at least for delphinids, seem to be confined to a smaller radius than has been observed for mysticetes. However, based on the limited existing evidence, belugas should not necessarily be grouped with delphinids in the “less responsive” category.
Pinnipeds. Pinnipeds are not likely to show a strong avoidance reaction to the airgun sources used. Visual monitoring from seismic vessels has shown only slight (if any) avoidance of airguns by pinnipeds and only slight (if any) changes in behavior. Monitoring work in the Alaskan Beaufort Sea during 1996-2001 provided considerable information regarding the behavior of Arctic ice seals exposed to seismic pulses (Harris
Masking occurs when anthropogenic sounds and signals (that the animal utilizes) overlap at both spectral and temporal scales. For the airgun sound generated from the seismic surveys, sound will consist of low frequency (under 500 Hz) pulses with extremely short durations (less than one second). Lower frequency man-made sounds are more likely to affect detection of potentially important natural sounds such as surf and prey noise, or communication calls for low frequency specialists. There is little concern regarding masking near the sound source due to the brief duration of these pulses and relatively longer silence between air gun shots (approximately 12 seconds). However, at long distances (over tens of kilometers away), due to multipath propagation and
This could affect communication signals used by low frequency mysticetes when they occur near the noise band and thus reduce the communication space of animals (
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The sound localization abilities of marine mammals suggest that, if signal and noise come from different directions, masking would not be as severe as the usual types of masking studies might suggest (Richardson
These data demonstrating adaptations for reduced masking pertain mainly to the very high frequency echolocation signals of toothed whales. There is less information about the existence of corresponding mechanisms at moderate or low frequencies or in other types of marine mammals. For example, Zaitseva
The following physiological mechanisms are thought to play a role in inducing auditory TS: Effects to sensory hair cells in the inner ear that reduce their sensitivity, modification of the chemical environment within the sensory cells, residual muscular activity in the middle ear, displacement of certain inner ear membranes, increased blood flow, and post-stimulatory reduction in both efferent and sensory neural output (Southall
PTS is considered auditory injury (Southall
Although the published body of scientific literature contains numerous theoretical studies and discussion papers on hearing impairments that can occur with exposure to a loud sound, only a few studies provide empirical information on the levels at which noise-induced loss in hearing sensitivity occurs in nonhuman animals. For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS would occur during the seismic surveys in Cook Inlet. Cetaceans generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns, but their avoidance reactions are generally not as strong or consistent as those of cetaceans, and occasionally they seem to be attracted to operating seismic vessels (NMFS, 2010).
Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg, 2000; Sapolsky
In the case of many stressors, an animal's first and most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response, which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effects on an animal's welfare.
An animal's third line of defense to stressors involves its neuroendocrine or sympathetic nervous systems; the system that has received the most study has been the hypothalmus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987; Rivier, 1995), altered metabolism (Elasser
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic functions, which impair those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (sensu Seyle, 1950) or “allostatic loading” (sensu McEwen and Wingfield, 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response due to exposure to stimuli.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress
For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (
Hearing is one of the primary senses marine mammals use to gather information about their environment and communicate with conspecifics. Although empirical information on the effects of sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, we assume that reducing a marine mammal's ability to gather information about its environment and communicate with other members of its species would induce stress, based on data that terrestrial animals exhibit those responses under similar conditions (NRC, 2003) and because marine mammals use hearing as their primary sensory mechanism. Therefore, we assume that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses. However, marine mammals also might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg, 2000), NMFS also assumes that stress responses could persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS. Resonance effects (Gentry, 2002) and direct noise-induced bubble formations (Crum
In general, very little is known about the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. Such effects, if they occur at all, would presumably be limited to short distances and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
However, in past IHA notices for seismic surveys, commenters have referenced two stranding events allegedly associated with seismic activities, one off Baja California and a second off Brazil. NMFS has addressed this concern several times, including in the
Beluga whale strandings in Cook Inlet are not uncommon; however, these events often coincide with extreme tidal fluctuations (“spring tides”) or killer whale sightings (Shelden
Active acoustic sources other than the airguns will be used for Apache's 5-year oil and gas exploration seismic survey program in Cook Inlet. The specifications for the pingers (source levels and frequency ranges) were provided in the FR notice of the proposed rule (80 FR 9510). In general, pingers are known to cause behavioral disturbance and are commonly used to deter marine mammals from commercial fishing gear or fish farms.
Apache plans to utilize aircraft to conduct aerial surveys near river mouths in order to identify locations or congregations of beluga whales and other marine mammals prior to the commencement of operations. The aircraft will not be used every day but will be used for surveys near river mouths. Survey aircraft will fly at an altitude of about 300 m (1,000 ft) when practicable and when weather conditions allow. In the event of a
Studies on the reactions of cetaceans to aircraft show little negative response (Richardson
The majority of observations of pinnipeds reacting to aircraft noise are associated with animals hauled out on land or ice. There are few data describing the reactions of pinnipeds in water to aircraft (Richardson
Vessel activity and noise associated with vessel activity will temporarily increase in the action area during Apache's seismic survey as a result of the operation of nine vessels. To minimize the effects of vessels and noise associated with vessel activity, Apache will follow NMFS's Marine Mammal Viewing Guidelines and Regulations and will alter heading or speed if a marine mammal gets too close to a vessel. In addition, vessels will be operating at slow speed (2-4 knots) when conducting surveys and in a purposeful manner to and from work sites in as direct a route as possible. Marine mammal monitoring observers and passive acoustic devices will alert vessel captains as animals are detected to ensure safe and effective measures are applied to avoid coming into direct contact with marine mammals. Therefore, NMFS neither anticipates nor authorizes takes of marine mammals from ship strikes.
Odontocetes, such as beluga whales, killer whales, and harbor porpoises, often show tolerance to vessel activity; however, they may react at long distances if they are confined by ice, shallow water, or were previously harassed by vessels (Richardson
There are few data published on pinniped responses to vessel activity, and most of the information is anecdotal (Richardson
Although some of Apache's equipment contains cables or lines, the risk of entanglement is extremely remote. The material used by Apache and the amount of slack in lines is not anticipated to allow for marine mammal entanglements. No incidents of entanglement have been reported from any seismic operators in Cook Inlet, and therefore injury or mortality from entanglement is not anticipated.
This section describes the potential impacts to marine mammal habitat from the specified activity. Because the marine mammals in the area feed on fish and/or invertebrates there is also information on the species typically preyed upon by the marine mammals in the area. As noted earlier, upper Cook Inlet is an important feeding and calving area for the Cook Inlet beluga whale, and critical habitat has been designated for this species in the seismic survey area.
Fish are the primary prey species for marine mammals in upper Cook Inlet. Beluga whales feed on a variety of fish, shrimp, squid, and octopus (Burns and Seaman, 1986). Common prey species in Cook Inlet include salmon, eulachon and cod. Harbor seals feed on fish such as pollock, cod, capelin, eulachon, Pacific herring, and salmon, as well as a variety of benthic species, including crabs, shrimp, and cephalopods. Harbor seals are also opportunistic feeders with their diet varying with season and location. The preferred diet of the harbor seal in the Gulf of Alaska consists of pollock, octopus, capelin, eulachon, and Pacific herring (Calkins, 1989). Other prey species include cod, flat fishes, shrimp, salmon, and squid (Hoover, 1988). Harbor porpoises feed primarily on Pacific herring, cod, whiting (hake), pollock, squid, and octopus (Leatherwood
With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga
Fishes have evolved a diversity of sound generating organs and acoustic signals of various temporal and spectral contents. Fish sounds vary in structure, depending on the mechanism used to produce them (Hawkins, 1993). Generally, fish sounds are predominantly composed of low frequencies (less than 3 kHz). Fishes produce sounds that are associated with behaviors that include territoriality, mate search, courtship, and aggression. It has also been speculated that sound production may provide the means for long distance communication and communication under poor underwater visibility conditions (Zelick
Since objects in the water scatter sound, fish are able to detect these objects through monitoring the ambient noise. Therefore, fish are probably able to detect prey, predators, conspecifics, and physical features by listening to environmental sounds (Hawkins, 1981). There are two sensory systems that enable fish to monitor the vibration-based information of their surroundings. The two sensory systems, the inner ear and the lateral line, constitute the acoustico-lateralis system.
Although the hearing sensitivities of very few fish species have been studied to date, it is becoming obvious that the intra- and inter-specific variability is considerable (Coombs, 1981). Nedwell
Fish are sensitive to underwater impulsive sounds due to swim bladder resonance. As the pressure wave passes through a fish, the swim bladder is rapidly squeezed as the high pressure wave, and then the under pressure component of the wave, passes through the fish. The swim bladder may repeatedly expand and contract at the high sound pressure levels, creating pressure on the internal organs surrounding the swim bladder.
Literature relating to the impacts of sound on marine fish species can be divided into the following categories: (1) Pathological effects; (2) physiological effects; and (3) behavioral effects. Pathological effects include lethal and sub-lethal physical damage to fish; physiological effects include primary and secondary stress responses; and behavioral effects include changes in exhibited behaviors of fish. Behavioral changes might be a direct reaction to a detected sound or a result of the anthropogenic sound masking natural sounds that the fish normally detect and to which they respond. The three types of effects are often interrelated in complex ways. For example, some physiological and behavioral effects could potentially lead to the ultimate pathological effect of mortality. Hastings and Popper (2005) reviewed what is known about the effects of sound on fishes and identified studies needed to address areas of uncertainty relative to measurement of sound and the responses of fishes. Popper
The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona, 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas
Investigations of fish behavior in relation to vessel noise (Olsen
Carlson (1994), in a review of 40 years of studies concerning the use of underwater sound to deter salmonids from hazardous areas at hydroelectric dams and other facilities, concluded that salmonids were able to respond to low-frequency sound and to react to sound sources within a few feet of the source. He speculated that the reason that underwater sound had no effect on salmonids at distances greater than a few feet is because they react to water particle motion/acceleration, not sound pressures. Detectable particle motion is produced within very short distances of a sound source, although sound pressure waves travel farther.
Apache's seismic survey requires the deployment of a submersible recording system in the inter-tidal and marine zones. An autonomous “nodal” (
No studies have demonstrated that seismic noise affects the life stages, condition, or amount of food resources (fish, invertebrates, eggs) used by marine mammals, except when exposed to sound levels within a few meters of the seismic source or in a few very isolated cases. Where fish or invertebrates did respond to seismic noise, the effects were temporary and of short duration. The effects are also largely behavioral, rather than physiological. Consequently, disturbance to fish species due to the activities associated with the seismic survey (
Based on the preceding discussion, the activity is not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations. Behavioral effects may be exhibited by fish species but as discussed above, these are also expected to be short term behavioral effects.
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable 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).
For the mitigation measures, Apache listed the following protocols to be implemented during its seismic survey program in Cook Inlet, which were incorporated into NMFS' proposed rule.
Apache will conduct both daytime and nighttime operations. Nighttime operations would be initiated only if a “mitigation airgun” (typically the 10 in
Apache will establish exclusion zones to avoid Level A harassment (“injury exclusion zone”) of all marine mammals and to minimize Level B harassment (“disturbance exclusion zone”) for any number of belugas and for groups of five or more killer whales or harbor porpoises detected within the designated zones. The injury exclusion zone will correspond to the area around the source within which received levels equal or exceed 180 dB re 1 µPa [rms] for cetaceans and 190 dB re 1 µPa [rms] for pinnipeds and Apache will shut down or power down operations if any marine mammals are seen approaching or entering this zone (more detail below). The disturbance exclusion zone will correspond to the area around the source within which received levels equal or exceed 160 dB re 1 µPa [rms] and Apache will implement power down and/or shutdown measures, as appropriate, if any beluga whales or group of five or more killer whales or harbor porpoises are seen entering or approaching the disturbance exclusion zone.
A power down is the immediate reduction in the number of operating energy sources from a full array firing to a mitigation airgun. A shutdown is the immediate cessation of firing of all energy sources. The arrays will be immediately powered down whenever a marine mammal is sighted approaching close to or within the applicable exclusion zone of the full arrays but is outside the applicable exclusion zone of the single source. If a marine mammal is sighted within the applicable exclusion zone of the single energy source, the entire array will be shutdown (
A ramp-up of an airgun array provides a gradual increase in sound levels, and involves a step-wise increase in the number and total volume of air guns firing until the full volume is achieved. The purpose of a ramp-up (or “soft start”) is to “warn” cetaceans and pinnipeds in the vicinity of the airguns and to provide the time for them to leave the area and thus avoid any potential injury or impairment of their hearing abilities.
During the seismic survey, the seismic operator will ramp up the airgun array slowly. NMFS requires that the rate of ramp-up to be no more than 6 dB per 5-minute period. Ramp-up is used at the start of airgun operations, after a power- or shut-down, and after any period of greater than 10 minutes in duration without airgun operations (
A full ramp-up after a shutdown will not begin until there has been a minimum of 30 minutes of observation of the applicable exclusion zone by PSOs to assure that no marine mammals are present. The entire exclusion zone must be visible during the 30-minute lead-in to a full ramp up. If the entire exclusion zone is not visible, then ramp-up from a cold start cannot begin. If a marine mammal(s) is sighted within the injury exclusion zone during the 30-minute watch prior to ramp-up, ramp-up will be delayed until the marine mammal(s) is sighted outside of the zone or the animal(s) is not sighted for at least 15-30 minutes: 15 minutes for small odontocetes and pinnipeds (
If a marine mammal is detected outside the Level A injury exclusion zone and, based on its position and the relative motion, is likely to enter that zone, the vessel's speed and/or direct course may, when practical and safe, be changed to also minimize the effect on the seismic program. This can be used in coordination with a power down procedure. The marine mammal activities and movements relative to the seismic and support vessels will be closely monitored to ensure that the marine mammal does not approach within the applicable exclusion radius. If the mammal appears likely to enter the exclusion radius, further mitigative actions will be taken,
The following additional protective measures for beluga whales and groups of five or more killer whales and harbor porpoises are required. Specifically, a 160-dB vessel monitoring zone would be established and monitored in Cook Inlet during all seismic surveys. If a beluga whale or groups of five or more killer whales and/or harbor porpoises are visually sighted approaching or within the 160-dB disturbance zone, survey activity would not commence until the animals are no longer present within the 160-dB disturbance zone. Whenever beluga whales or groups of five or more killer whales and/or harbor porpoises are detected approaching or within the 160-dB disturbance zone, the airguns may be powered down before the animal is within the 160-dB disturbance zone, as an alternative to a complete shutdown. If a power down is not sufficient, the sound source(s) shall be shut-down until the animals are no longer present within the 160-dB zone.
In addition to the mitigation measures proposed by Apache, NMFS requires implementation of the following mitigation measures.
Apache must not operate airguns within 10 miles (16 km) of the mean lower low water (MLLW) line of the Susitna Delta (Beluga River to the Little Susitna River) between April 15 and October 15. The purpose of this mitigation measure is to protect beluga whales in this portion of designated critical habitat that is particularly important for beluga whale feeding and calving between mid-April and mid-October. This is a change from the proposed rule, which proposed an exclusion from the mean higher high water line (MHHW). The range of the setback required by NMFS is intended to protect this important habitat area during high beluga use and also to create an effective buffer where sound does not encroach on this habitat. This seasonal exclusion will be in effect from April 15-October 15. Seismic exploration and associated activities may occur within this area from October 16-April 14.
The mitigation airgun will be operated at approximately one shot per minute, only during daylight and when there is good visibility, and will not be operated for longer than 3 hours in duration. In cases when the next start-up after the turn is expected to be during low light or low visibility, use of the mitigation airgun may be initiated 30 minutes before local sunset or low visibility conditions occur and may be operated until the start of the next seismic acquisition line but not longer than three hours continuously. The mitigation gun must still be operated at approximately one shot per minute.
NMFS also requires that Apache use passive acoustic monitoring (PAM) during non-daylight hours for marine mammal detections as well as use PAM to confirm the lack of marine mammals in the potential ensonified area to ramp up airguns after a power down or shutdown in non-daylight hours, with the success and potential continuation of this method to be reviewed at the annual LOA stage. Following a power down or shutdown a trained PSO must use detection equipment and listen for 30 minutes. When 30 minutes have passed without detection of beluga, humpback whale, or Steller sea lion detection, the ramp-up can begin. NMFS will work with Apache before issuance of an LOA to design an appropriate system for this detection and will evaluate the effectiveness when considering subsequent LOAs.
NMFS requires that Apache suspend seismic operations if a live marine mammal stranding is reported in Cook Inlet coincident to, or within 72 hours of, seismic survey activities involving the use of airguns (regardless of any suspected cause of the stranding). The shutdown must occur if the stranding location is within a radius two times that of the 160 dB isopleth of the largest airgun array configuration in use. This distance was chosen to create an additional buffer beyond the distance at which animals would typically be considered harassed, as animals involved in a live stranding event are likely compromised, with potentially increased susceptibility to stressors, and the goal is to decrease the likelihood that they are further disturbed or impacted by the seismic survey, regardless of what the original cause of the stranding event was. Shutdown procedures will remain in effect until NMFS determines and advises Apache that all live animals involved in the stranding have left the area (either of their own volition or following herding by responders).
Finally, NMFS requires that if during the seismic activities any marine mammal species are encountered for which take is not authorized, and that are likely to be exposed to sound pressure levels (SPLs) greater than or equal to 160 dB re 1 µPa (rms), then Apache must alter speed or course or power down or shut-down the sound source to avoid take of those species.
NMFS has carefully evaluated Apache's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measures are 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 below:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of seismic airguns, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of seismic airguns or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of seismic airguns or other activities expected to
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the applicant's measures, as well as other measures considered by NMFS, NMFS has determined that the required mitigation measures provide the means of effecting the least practicable adverse 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 ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Apache submitted information regarding marine mammal monitoring to be conducted during seismic operations as part of the proposed rule application. That information can be found in Sections 12 and 14 of the application.
Monitoring measures proposed by the applicant or prescribed by NMFS should contribute to or accomplish one or more of the following top-level 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.
As noted earlier in this document, NMFS has issued three IHAs to Apache for this same type of activity. No seismic surveys were conducted under the IHA issued in February 2013 (became effective March 1, 2013). Apache conducted seismic operations under the first IHA issued in April 2012. Below is a summary of the results from the monitoring conducted in accordance with the 2012 and 2014 IHAs.
Marine mammal monitoring was conducted in central Cook Inlet between May 6 and September 30, 2012, which resulted in a total of 6,912 hours of observations. There was also monitoring from April 2, 2014, through June 27, 2014, which resulted in a total of 3,029 hours of observations. Monitoring was conducted from the two seismic survey vessels, a mitigation/monitoring vessel, four land platforms, and an aerial platform (either a helicopter or small fixed wing aircraft). PSOs monitored from the seismic vessels, mitigation/monitoring vessel, and land platforms during all daytime seismic operations. Aerial overflights were conducted 1-2 times daily over the survey area and surrounding coastline, including the major river mouths, to monitor for larger concentrations of marine mammals in and around the survey site. PAM took place from the mitigation/monitoring vessel during all nighttime seismic survey operations and most daytime seismic survey operations in 2012. During the entire 2012 survey season, Apache's PAM equipment yielded only six confirmed marine mammal detections, one of which was a Cook Inlet beluga whale.
Six identified species and three unidentified species of marine mammals were observed from the vessel, land, and aerial platforms between May 6 and September 30, 2012. Eight identified species and three unidentified species were observed in 2014. The species observed included Cook Inlet beluga whales, harbor seals, harbor porpoises, Dall's porpoises, humpback whale, minke whale, Steller sea lions, gray whales, and California sea lions. PSOs also observed unidentified species, including a large cetacean, pinniped, and marine mammal. There were a total of 882 sightings and an estimated 5,232 individuals (the number of individuals is typically higher than the number of sightings because a single sighting may consist of multiple individuals) in 2012. There were a total of 645 sightings and an estimated 922 individuals in 2014. Harbor seals were the most frequently observed marine mammal at 563 sightings of approximately 3,471 individuals in 2012 and 492 sightings of approximately 613 individuals in 2014. In 2012 there were 151 sightings of approximately 1,463 individual belugas, and 57 sightings of approximately 170 individual belugas in 2014. In 2012, there were 137 sightings of approximately 190 individual harbor porpoises, with 77 sightings of approximately 113 individuals in 2014.
A total of 88 exclusion zone clearing delays, 154 shutdowns, 7 power downs, 23 shutdowns following a power down, and one speed and course alteration were implemented under the 2012 IHA. In 2014 there were 7 ramp-up delays, and 13 shutdowns.
Based on the information from the 2012 and 2014 monitoring reports, NMFS has determined that Apache complied with the conditions of their IHAs, and we conclude that these results support our original findings that the mitigation measures set forth in the Authorizations effected the least practicable impact on the species or stocks. The monitoring efforts support the take estimation calculations found later in this document for all species, but suggest that the calculation for harbor seals is an overestimate.
Although Apache did not conduct any seismic survey operations under the 2013 IHA, they still conducted marine mammal monitoring surveys between May and August 2013. During those aerial surveys, Apache detected a total of three marine mammal species: Beluga whale; harbor porpoise; and harbor seal. A total of 718 individual belugas, three harbor porpoises, and 919 harbor seals were sighted. Of the 718 observed belugas, 61 were calves. All of the calf sightings occurred in the Susitna Delta area, with the exception of a couple south of the Beluga River and a couple in Turnagain Arm. More than 60 percent of the beluga calf sightings occurred in June (n=39).
Vessel-based monitoring for marine mammals will be done by experienced PSOs throughout the period of marine survey activities. PSOs would monitor the occurrence and behavior of marine mammals near the survey vessel during all daylight periods (nautical dawn to nautical dusk) during operation and during most daylight periods when airgun operations are not occurring. PSO duties would include watching for and identifying marine mammals, recording their numbers, distances, and reactions to the survey operations, and documenting “take by harassment” as defined by NMFS,
A minimum number of six PSOs (two per source vessel and two per support vessel) is required onboard the survey vessel to meet the following criteria: (1) 100 percent monitoring coverage during all periods of survey operations in daylight (nautical twilight-dawn to nautical twilight-dusk; (2) maximum of 4 consecutive hours on watch per PSO with at least one hour break between shifts; and (3) maximum of 12 hours of watch time per day per PSO.
PSO teams would consist of NMFS-approved field biologists. An experienced field crew leader would supervise the PSO team onboard the survey vessel. Apache currently plans to have PSOs aboard three vessels: The two source vessels (
Crew leaders and most other biologists serving as observers would be individuals with experience as observers during seismic surveys in Alaska or other areas in recent years.
The observer(s) would watch for marine mammals from the best available vantage point on the source and support vessels, typically the flying bridge. The observer(s) would scan systematically with the unaided eye and 7×50 reticle binoculars. Laser range finders would be available to assist with estimating distance on the two source vessels. Personnel on the bridge would assist the observer(s) in watching for marine mammals.
All observations would be recorded in a standardized format. Data would be entered into a custom database using a notebook computer. The accuracy of the data would be verified by computerized validity data checks as the data are entered and by subsequent manual checks of the database. These procedures would allow for initial summaries of the data to be prepared during and shortly after the completion of the field program, and would facilitate transfer of the data to statistical, geographical, or other programs for future processing and archiving. When a mammal sighting is made, the following information about the sighting would be recorded:
• Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from the PSO, apparent reaction to activities (
• Time, location, speed, activity of the vessel (
• The positions of other vessel(s) in the vicinity of the PSO location.
The ship's position, speed of support vessels, and water temperature, water depth, sea state, ice cover, visibility, and sun glare would also be recorded at the start and end of each observation watch, every 30 minutes during a watch, and whenever there is a change in any of those variables.
Apache will also monitor for at least 30 minutes following the cessation of seismic surveying. This post-activity monitoring period will provide data for comparisons to marine mammal presence and behavior during seismic activity.
In addition to the vessel-based PSOs, Apache will utilize a shore-based station daily, to visually monitor for marine mammals. The location of the shore-based station would need to be sufficiently high to observe marine mammals; the PSOs would be equipped with pedestal mounted “big eye” (20x110) binoculars. The shore-based PSOs would scan the area prior to, during, and after the airgun operations and would be in contact with the vessel-based PSOs via radio to communicate
Weather and safety permitting, Apache will utilize helicopter or fixed-wing aircraft to conduct aerial surveys of the project area prior to the commencement of operations in order to identify locations of congregations of beluga whales. Apache will conduct daily aerial surveys. Daily surveys to assess the area intended to be surveyed on each day will be scheduled to occur at least 30 minutes and no more than 120 minutes prior to any seismic-related activities (including but not limited to node laying/retrieval or airgun operations). Aerial surveys will occur along and parallel to the shoreline throughout the project area as well as the eastern and western shores of central and northern Cook Inlet on a weekly basis.
Survey aircraft would fly at an altitude of 305 m (1,000 ft). In the event of a marine mammal sighting, aircraft would attempt to maintain a radial distance of 457 m (1,500 ft) from the marine mammal(s). Aircraft would avoid approaching marine mammals from head-on, flying over or passing the shadow of the aircraft over the marine mammal(s). By following these operational requirements, aerial surveys are not expected to harass marine mammals (Richardson
Based on data collected from Apache during its survey operations conducted under the April 2012 and March 2014 IHAs, NMFS determined that the foregoing monitoring measures will allow Apache to identify animals nearing or entering the Level B disturbance exclusion zone with a reasonably high degree of accuracy.
NMFS will work with Apache to execute a viable attempt at using PAM to acoustically clear the area during low-light conditions, when visually clearing an area is not possible. The exact technologies required for PAM will be determined during review of the LOA applications to ensure effectiveness of the required measure. This will primarily be for ramping up airguns after a power down or shutdown in non-daylight hours. In addition, Apache must conduct PAM throughout all seismic airgun array operations occurring between local sunset and local sunrise when the zone of influence extends to Cook Inlet waters north of 60° 43′N at any time of year, and south of 60° 43′ from October 15 to April 15. NMFS will require Apache to use a fixed, nearshore PAM system, with at least one protected species observer trained in PAM to listen to the hydrophone. The continued use of this system will depend on its effectiveness and practicability and will be addressed through the adaptive management process and in annual LOAs issued under this rulemaking.
Apache will immediately contact NMFS if the total number of belugas detected in the Level B disturbance exclusion zone over the course of the survey exceeds 25 to allow NMFS to evaluate and make any necessary adjustments to monitoring and mitigation to ensure continuing compliance. Apache will also report when the take calculation using the methodology described in the Estimating Take section below reaches 25 belugas. If the number of detected takes for any marine mammal species meets or exceeds the number of takes authorized, Apache will immediately cease survey operations involving the use of active sound sources (
Apache will submit a weekly field report to NMFS Headquarters as well as the Alaska Regional Office, no later than close of business each Thursday during the weeks when in-water seismic survey activities take place. The weekly field reports will summarize species detected (number, location, distance from seismic vessel, behavior), in-water activity occurring at the time of the sighting (discharge volume of array at time of sighting, seismic activity at time of sighting, visual plots of sightings, and number of power downs and shutdowns), behavioral reactions to in-water activities, and the number of marine mammals exposed. Additionally, due to the adaptive management component of this rule, Apache must include which km
Monthly reports will be submitted to NMFS for all months during which in-water seismic activities take place. The monthly report will contain and summarize the following information:
• Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort sea state and wind force), and associated activities during all seismic operations and marine mammal sightings.
• Species, number, location, distance from the vessel, and behavior of any sighted marine mammals, as well as associated seismic activity (number of power-downs and shutdowns), observed throughout all monitoring activities.
• An estimate of the number (by species) of: (i) Pinnipeds that have been exposed to the seismic activity (based on visual observation) at received levels greater than or equal to 160 dB re 1 µPa (rms) and/or 190 dB re 1 µPa (rms) with a discussion of any specific behaviors those individuals exhibited; and (ii) cetaceans that have been exposed to the seismic activity (based on visual observation) at received levels greater than or equal to 160 dB re 1 µPa (rms) and/or 180 dB re 1 µPa (rms) with a discussion of any specific behaviors those individuals exhibited.
• A description of the implementation and effectiveness of the: (i) Terms and conditions of the Biological Opinion's Incidental Take Statement (ITS); and (ii) mitigation measures of the LOA. For the Biological Opinion, the report shall confirm the implementation of each Term and Condition, as well as any conservation recommendations, and describe their effectiveness for minimizing the adverse effects of the action on ESA-listed marine mammals.
Apache will submit an annual report to NMFS's Permits and Conservation Division within 90 days after the end of every operating season but no later than 60 days before the expiration of each annual LOA during the five-year period. The annual report will include:
• Summaries of monitoring effort (
• Descriptions of various factors influencing detectability of marine mammals (
• Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover.
• Analyses of the effects of survey operations.
• Sighting rates of marine mammals during periods with and without seismic survey activities (and other variables that could affect detectability), such as: (i) Initial sighting distances versus survey activity state; (ii) closest point of approach versus survey activity state; (iii) observed behaviors and types of movements versus survey activity state; (iv) numbers of sightings/individuals seen versus survey activity state; (v) distribution around the source vessels versus survey activity state; (vi) numbers of animals detected in the 160 dB harassment (disturbance exclusion) zone; and (vii) number and type of mitigation measures implemented including shutdowns and powerdowns.
NMFS will review the draft annual reports. Apache must then submit a final annual report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, within 30 days after receiving comments from NMFS on the draft annual report. If NMFS determines it has no comments, the draft report shall be considered to be the final report.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A harassment), serious injury or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Apache to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Apache may not resume their activities until notified by NMFS that it may do so, via letter or email, or telephone.
In the event that Apache discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that Apache discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the authorized activities (
NMFS requires that Apache must suspend seismic operations if a live marine mammal stranding is reported in Cook Inlet coincident to, or within 72 hours of, seismic survey activities involving the use of airguns (regardless of any suspected cause of the stranding). The shutdown must occur if the animal is within a distance two times that of the 160 dB isopleth of the largest airgun array configuration in use. This distance was chosen to create an additional buffer beyond the distance at which animals would typically be considered harassed, as animals involved in a live stranding event are likely compromised, with potentially increased susceptibility to stressors, and the goal is to decrease the likelihood that they are further disturbed or impacted by the seismic survey, regardless of what the original cause of the stranding event was. Shutdown procedures will remain in effect until NMFS determines and advises Apache that all live animals involved in the stranding have left the area (either of their own volition or following herding by responders).
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]. Only take by Level B behavioral harassment is anticipated as a result of the seismic survey program with required mitigation and monitoring. Anticipated impacts to marine mammals are associated with noise propagation from the sound sources (
Apache requested authorization to take six marine mammal species by Level B harassment: Cook Inlet beluga whale; killer whale; harbor porpoise; gray whale; harbor seal; and Steller sea lion. Due to the reported sightings in Cook Inlet as well as public comment, NMFS has also included take of humpback whales, minke whales, and Dall's porpoise in this final rule.
For impulse sounds, such as those produced by airgun(s) used in the seismic survey, NMFS used the 160 dB re 1 μPa (rms) isopleth to indicate the onset of Level B harassment. The current Level A (injury) harassment threshold is 180 dB (rms) for cetaceans and 190 dB (rms) for pinnipeds. The NMFS annual aerial survey data provided in Table 5 of Apache's application was used to derive density estimates for each species other than belugas (number of individuals/km
To estimate takes by Level B harassment for this rule, as well as for mitigation radii to be monitored by PSOs, ranges to the 160 dB (rms) isopleths were estimated at three different water depths (5 m, 25 m, and 45 m) for nearshore surveys and at 80 m for channel surveys. The distances to this threshold for the nearshore survey locations are provided in Table 2 below.
To estimate take by Level B harassment, Apache used the largest value from each category. The distances to the thresholds for the channel survey locations are provided in Table 3 below and correspond to the broadside and endfire directions.
The areas ensonified to the 160 dB isopleth for the nearshore survey are also provided in Table 3 in Apache's application. The estimated daily acoustic footprint (ensonified to the 160 dB threshold) for each survey day is 517 km
Compared to the airguns, the relevant isopleths for the positioning pinger are quite small. The distances to the 190, 180, and 160 dB (rms) isopleths are 1 m, 3 m, and 25 m (3.3, 10, and 82 ft), respectively. Due to the small isopleths and the existing mitigation for the airgun isopleths, which are much larger, pingers are not considered in the take estimation section.
Based on the available data, Apache used one method to estimate densities for Cook Inlet beluga whales and another method for the other marine mammals in the area expected to be taken by harassment. Both methods are described in this document.
In consultation with staff from NMFS's National Marine Mammal Laboratory (NMML) during development of the second IHA in early 2013, Apache used a habitat-based model developed by Goetz
As a result of discussions with NMFS, Apache used the NMML model (Goetz
Densities of other marine mammals in the project area were estimated from the annual aerial surveys conducted by NMFS for Cook Inlet beluga whale between 2000 and 2012 in June (Rugh
Table 5 in Apache's application provides a summary of the results of each annual NMFS aerial survey conducted in June from 2000 to 2012. The total number of individuals sighted for each survey by year is reported, as well as total hours for the entire survey and total area surveyed. To estimate density of marine mammals, total number of individuals (other species) observed for the entire survey area by year (surveys usually last several days) was divided by the approximate total area surveyed for each year (density = individuals/km
In particular, the total number of harbor seals observed on several surveys is very high due to several large haul outs in lower and middle Cook Inlet. The focus of these NMML aerial surveys is on coastal environments, where beluga occurrence is high, which likely inflates the densities derived for harbor seals, as they also exhibit coastal habitat preference. Additionally, large haulouts for harbor seals are included in the NMML survey tracklines. These inclusions make it difficult to extrapolate the density derived as a uniform distribution across the entire portion of Apache's survey, 100 days of which are in deep water and removed from the harbor seal's preferred coastal habitat.
The table below (Table 4) provides average density estimates for gray whales, harbor seals, harbor porpoises, killer whales, and Steller sea lions over the 2000-2012 period.
Apache will limit surveying in the seismic survey area to ensure takes do no exceed a maximum of 30 beluga takes during each open water season. The following equation allows Apache to ensure that the beluga takes do not exceed 30 when contemplating the amount of seismic effort that will be conducted in different areas with different densities across days:
This formula also allows Apache flexibility to prioritize survey locations in response to local weather, ice, and operational constraints. Apache may choose to survey portions of a zone or a zone in its entirety, and the analysis in this rule takes this into account. For the 2016 season, Apache will survey the same area that was authorized in 2014. Using the above formula, if Apache surveys the entire area of Zone 1 (1,319 km
Apache will initially limit actual survey areas, including 160-dB buffer zones, to satisfy the formula denoted here. Operations are required to cease for the year once Apache has conducted seismic data acquisition in an area where multiplying the applicable density by the total ensonified area out to the 160-dB isopleth equals 30 beluga whales, using the equation provided above. Apache's annual seismic operational area would be determined as weather, ice, and priorities dictate. Apache has requested a maximum allowed take for Cook Inlet beluga whales of 30 individuals. During each annual LOA, Apache would operate in a portion of the total seismic operation area of 5,684 km
The estimated number of other Cook Inlet marine mammals that may be harassed during the seismic surveys was calculated by multiplying the average density estimates (presented in Table 2 in this document) by the area ensonified per day by levels ≥160 dB re µPa rms by the number of days of surveying (see Appendix C and Appendix D in Apache's application for more information).
Apache anticipates that a crew will collect seismic data for 8-12 hours per day over approximately 160 days over the course of 8 to 9 months each year. It is assumed that over the course of these 160 days, 100 days would be working in the offshore region and 60 days in the shallow, intermediate, and deep nearshore region. Of those 60 days in the nearshore region, 20 days would be in each depth. It is important to note that environmental conditions (such as ice, wind, fog) will play a significant role in the actual operating days.
NMFS calculated the number of potential exposure instances for each non-beluga species using the density information derived from NMFS aerial surveys conducted from 2000-2012. These animal densities were multiplied by the number of days in each water depth (shallow, intermediate, deep, or offshore) as well as the estimated ensonified area per day for each water depth. This method is likely an overestimation of the number of individuals taken as it represents the likely number of instances of take, without accounting for repeated take of individuals, which is especially likely to occur with resident species such as harbor seals as detailed below.
Table 6 below outlines the calculation of annual exposures for non-beluga species.
NMFS has further refined the annual estimates of Level B take. In consultation with the Alaska Regional Office and their access to sightings data for listed species, NMFS was able to derive estimates of the number of individuals likely to be taken by these activities for certain species. The NMFS aerial surveys from which density is derived include large portions of the lower Inlet that are not part of Apache's action area and coincide with some of the highest densities of Steller sea lions in Cook Inlet. Particularly in the Upper Inlet, Steller sea lions are sighted as singles or in pairs. Additionally, Apache's activity will not occur near any haulouts where Steller sea lions have been reported in large numbers. Due to their infrequency of occurrence in the northern parts of Cook Inlet, NMFS will authorize annual take of Steller sea lions equal to the maximum number of animals sighted in a single occurrence, 20 individuals.
Humpback whales are also sighted infrequently in Cook Inlet, with several sighted each summer, largely in the lower Inlet. Due to the well documented and seasonal nature of their occurrence in Cook Inlet, NMFS determined it appropriate to authorize an annual take of two humpback whales, which is expected to be the maximum number encountered in the action area during a season.
As noted above, using the (daily ensonified area × number of survey days × density) method results in a reasonable estimate of the instances of take, but likely significantly overestimates the number of individual animals expected to be taken. With most species, even this overestimated number is still very small, and additional analysis is not really necessary to ensure minor impacts. However, because of the number and density of harbor seals in the area, a more accurate understanding of the number of individuals likely taken is necessary to fully analyze the impacts and ensure that the total number of harbor seals taken is small.
As described below, we believe that the modeled number of estimated instances of take may actually be high, based on monitoring results from the area. The density estimate from NMFS aerial surveys includes harbor seal haulouts far south of the action area that may never move to an ensonified area. Further, we believe that we can reasonably estimate the comparative number of individual harbor seals that will likely be taken, based both on monitoring data, operational information, and on a general understanding of harbor seal habitat use within Cook Inlet.
Using the (daily ensonified area × number of survey days × density) formula, the number of instances of exposure above the 160 dB threshold estimated for Apache's activity in Cook Inlet is 24,279. However, based on monitoring data from previous activities, it is clear this number is an overestimate—compared to both aerial and vessel based observation efforts. Apache's monitoring report from 2014 details that they saw 652 harbor seals from 76 aerial flights in the vicinity of the survey primarily during the months of May and June, which are the peak months for harbor seal haulout. In surveying the literature, correction factors to account for harbor seals in water based on land counts from aerial surveys vary from 1.2 to 1.65 (Harvey & Goley, 2011). Using the most conservative factor of 1.65 (allowing us to consider that some of the individuals on land may have entered the water at other points in day), if Apache saw 652 seals hauled out then there were an estimated 1076 seals in the water during those 76 days. If, because there were only 76 survey days, we conservatively multiply by 2.1 to estimate the number of seals that might have been seen if the aerial surveys were conducted for 160 days, this yields an estimate of 2,260 instances of seal exposure in the water, which is far less than the estimated 24,279. That the number of potential instances of exposure is likely less than 24,279 is also supported by the visual observations from PSOs on board other seismic vessels. PSOs for SAE's 2015 work sighted 1,680 seals in water over 135 days of activity which is a similar operational period to Apache's annual requested window of operation. Given the size of the disturbance zone for these activities, it is likely that not all harbor seals that were exposed were seen by PSOs, however 1,680 is still far less than the estimate of 24,279 given by the density calculations.
Further, based on the residential nature of harbor seals and the number of patches Apache plans to shoot, it is possible to reasonably estimate the number of individual harbor seals exposed, given the instances of exposures. Based on provided estimates, Apache will shoot one patch in 5 days. If seals are generally returning to haulouts in the survey area over the 5 days of any given patch shoot, than any given seal in the area could be exposed a minimum of one day and a maximum of all five days, with an average of 3 days. If the original exposure estimate using density is 22,279 exposures, then when divided by three (the average number of times an animal could be exposed during the shooting of one patch), the expected number of individuals exposed is 7,426, which is approximately 32% of the population. This number is also likely an overestimate given that adjoining patches may be shot, meaning the same seals could be exposed over multiple patches. Given these multiple methods, as well as the behavioral preferences of harbor seals for haulouts in certain parts of the Inlet (Montgomery
Table 5 outlines the density estimates used in abundance and Level B harassment take calculations, the abundance of each species in Cook Inlet, the percentage of each species or stock estimated to be taken if each take were equivalent to an individual, and current population trends. Note that for harbor seals, however, that the authorized number of takes specifically does not represent the number of individuals, but rather the number of instances of take. The number of individual harbor seals taken is anticipated to be significantly smaller as described below in the Negligible Impact section. While the estimated number of individuals cannot be calculated as easily, it is semi-quantitatively assessed and that assessment has been used to estimate the percentage of the population that will be taken.
The following Table 8 applies the authorized Level B harassment take levels from Table 7 and expands them to a 5 year timeline, spanning the entire duration of the rule.
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 (
Given the required mitigation and related monitoring, no injuries or mortalities are anticipated to occur as a result of Apache's seismic survey in Cook Inlet, and none are authorized. Animals in the area are not expected to incur hearing impairment (
Taking into account the mitigation measures that are planned, effects on marine mammals are generally expected to be restricted to avoidance of a limited area around the survey operation and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” Animals are not expected to permanently abandon any area that is surveyed, and any behaviors that are interrupted during the activity are expected to resume once the activity ceases or moves away. Only a relatively small portion of marine mammal habitat will be affected at any time, and other adjacent areas of Cook Inlet of equivalent value will be available for necessary biological functions.
The addition of nine vessels, and noise due to vessel operations associated with the seismic survey, would not be outside the present experience of marine mammals in Cook Inlet, although levels may increase locally to the seismic survey. Given the large number of vessels in Cook Inlet and the observed apparent habituation to vessels by some individual Cook Inlet beluga whales and other marine mammals that may occur in the area (NMFS, 2008a), as well as the fact that the increased noise from the seismic survey will not be focused in one concentrated area in which individual animals are known to concentrate for longer times, vessel activity and noise is not expected to have effects that could cause significant or long-term consequences for individual marine mammals or their populations (Lerczak
Mitigation measures such as controlled vessel speed, dedicated marine mammal observers, non-pursuit, and shutdowns or power downs when marine mammals are seen within defined ranges designed both to avoid injury and disturbance will further reduce short-term reactions and minimize any effects on hearing sensitivity. In all cases, the effects of the seismic survey are expected to be short-term, with no lasting biological consequence.
Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” section). Although some disturbance is possible to food sources of marine mammals, the impacts are anticipated to be minor enough as to not affect an individual's ability to forage. Based on the size of Cook Inlet where feeding by marine mammals occurs versus the localized area of the marine survey activities, any missed feeding opportunities in the direct project area would be minor based on the fact that other feeding areas exist elsewhere.
Of the three mysticete species for which take is authorized, one species (humpback whale) is listed under the ESA. The Central North Pacific stock of humpback whales winters in Hawaii but travels to the Gulf of Alaska for summer feeding. There is no critical habitat designated for humpback whales in Cook Inlet. Gray whales and minke whales are also seen in Cook Inlet infrequently, with no known biologically important areas of these species in Cook Inlet. While low frequency specialists (
Odontocete (including Cook Inlet beluga whales, killer whales, Dall's porpoise, and harbor porpoises) reactions to seismic energy pulses are usually assumed to be limited to shorter distances from the airgun(s) than are those of mysticetes, in part because
Endangered Cook Inlet beluga whales are resident species in Cook Inlet with two areas of critical habitat designated under the ESA: Critical Habitat Area 1 in the Upper Inlet, and Critical Habitat Area 2 farther south in the Inlet. The estimated annual rate of decline for Cook Inlet beluga whales was 0.6 percent between 2002 and 2012. Despite a moratorium on the subsistence hunting of belugas, the population has been slow to increase, with the most recent abundance estimate calculating a population of 340 individuals (Shelden
Due to the dispersed distribution of beluga whales in Cook Inlet during winter and the concentration of beluga whales in upper Cook Inlet from late April through early fall, belugas will likely occur in the majority of Apache's survey area during the majority of Apache's annual operational timeframe of March through December. Due to extensive mitigation measures including a shutdown requirement if belugas are sighted within the Level B harassment zone, it is likely that only few animals would be exposed to received sound levels associated with behavioral disturbance, and highly unlikely that any would be exposed to received sound levels equal to or greater than those that may cause injury.
Additionally, NMFS will seasonally restrict seismic survey operations in the Susitna Delta region of upper Cook Inlet, a location known to be important for beluga whale feeding, calving, and nursing. NMFS will implement a 16 km (10 mi) seasonal exclusion from seismic survey operations in this region from April 15-October 15. NMFS is implementing this exclusion zone from the mean lower low water line (MLLW), which excludes a large portion of the Inlet north of the Forelands from seismic surveying activity during periods of high use and biological importance to belugas. The highest concentrations of belugas are typically found in this area from early May through September each year. NMFS has incorporated a 2-week buffer on each end of this seasonal use timeframe to account for any anomalies in distribution and marine mammal usage. To further minimize impacts, Apache will be required to power down or shutdown when any beluga is seen approaching or within the 160dB behavioral disturbance zone. This mitigation measure is expected to further lower the number of belugas taken, but more importantly, to reduce the anticipated consequences of any behavioral disturbance by ensuring that it does not occur at this important area in a time when animals need to specifically focus on, and expend energy towards, feeding, calving, or nursing.
There is little available literature regarding behavioral response of Cook Inlet belugas to seismic surveys. When in the Canadian Beaufort Sea in summer, belugas appear responsive to seismic energy, with few being sighted within 10-20 km (6-12 mi) of seismic vessels during aerial surveys (Miller
Steller sea lion trends for the western stock are variable throughout the region with some decreasing and others remaining stable or even indicating slight increases. While Steller sea lions are sighted regularly in Cook Inlet, these sightings occur much farther south than Apache's proposed action area. They are rarely sighted north of the Forelands, and when they are sighted it is largely as pairs or individuals.
Some individual pinnipeds may be exposed to sound from the seismic surveys more than once during the timeframe of the project. Taking into account the mitigation measures that are planned, effects on pinnipeds are generally expected to be restricted to avoidance of a limited area around the survey operation and short-term changes in behavior, falling within the MMPA definition of “Level B harassment”. Animals are not expected to permanently abandon any area that is surveyed, and any behaviors that are interrupted during the activity are expected to resume once the activity ceases or moves to another location. Only a small portion of pinniped habitat will be affected at any time, and other areas within Cook Inlet will be available for necessary biological functions. In addition, the area where the survey will take place is not known to be an important location where pinnipeds haul out. The closest known haul-out site is located on Kalgin Island, which is about 22 km from the McArther River. More recently, some large congregations of harbor seals have been observed hauling out in upper Cook Inlet. However, it is still rare to encounter large numbers of harbor seals during in-water activity. Additionally, most known large harbor seal haulouts are in the southern portion of Cook Inlet, well south of the area Apache plans to survey. Therefore, the exposure of pinnipeds to sounds produced by this phase of Apache's seismic survey is not anticipated to have an effect on annual rates of recruitment or survival on those species or stocks.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total per-species or per-stock annual marine mammal take from Apache's seismic survey over the course of the 5-year period of this rule will have a negligible impact on the affected marine mammal species or stocks. NMFS has made the necessary findings to issue the 5-year regulations for Apache's activities but believes a cautious approach is appropriate in the management of impacts on this small resident beluga population with declining abundance and constricted range. Accordingly, NMFS will issue annual Letters of Authorization (LOAs), as appropriate, instead of a single 5-year LOA. Apache will be required to submit a draft monitoring report from their season of work by October 31st of each year so that NMFS can review the report and provide any comments so that Apache can submit a final report by November 30th. This will allow the agency to take into account annually Apache monitoring reports and any other new information on anticipated impacts or Cook Inlet belugas, to inform our evaluation of subsequent LOA applications and ensure that we are able to confirm the necessary findings. LOA applications must be submitted by
The requested and authorized takes represent 9.6 percent of the Cook Inlet beluga whale population of approximately 312 animals (Allen and Angliss, 2014), 6.26 percent of the Alaska resident stock and 12.74 percent of the Gulf of Alaska, Aleutian Island and Bering Sea stock of 345 transient killer whales, 0.91 percent of the Gulf of Alaska stock of approximately 31,046 harbor porpoises, 0.27 percent of the Central North Pacific stock of approximately 7,469 humpback whales, 0.016 percent of the Alaska stock of 106,000 Dall's porpoise, 0.08 percent of the Alaska stock of 1,233 minke whales, and 0.042 percent of the eastern North Pacific stock of approximately 19,126 gray whales. The requested takes for Steller sea lions represent 0.025 percent of the western stock of approximately 79,300 animals.
The take estimates for beluga whales, humpback whales, and Steller sea lions represent the number of individuals of each species or stock that could be taken by Level B behavioral harassment. For the remaining species (killer whales, harbor porpoise, Dall's porpoise, minke whales, and gray whales), the Level B take estimates represent the instances of exposure that may occur as a result of Apache's activity, meaning that the number of unique individuals taken will likely be lower.
The take request presented for harbor seals would represent 106 percent of the Cook Inlet/Shelikof stock of approximately 22,900 animals if each instance of exposure represented a unique individual, however, that is not the case. The mathematical calculation that resulted in 22,900 does not account for other factors that, when considered appropriately, suggest that far fewer individuals will be taken. The species' coastal nature, affinity for haulout sites in the southern Inlet, and absence during previous seismic surveys suggests that the number of individuals seals exposed to noise at or above the Level B harassment threshold, which likely represent repeated exposures of the same individual, is at a low enough level for NMFS to consider small.
When calculating take using the method used by NMFS in previous Apache IHAs to estimate the number of individuals taken (total area multiplied by density) the number of harbor seals taken is 1,769. This previous method calculated take by multiplying density times the total ensonified area (over the whole survey) and represents a good way to gauge the minimum number of individuals exposed, but tends to underestimate take over the course of a survey that extends multiple days and repeated exposures of the same areas across multiple days. This method is useful to more closely gauge the actual number of individuals in situations with resident populations or where the same individuals are expected to remain around the action area for extended periods of time. The true number of individual seals likely to be taken in this situation may be greater than 1,769 but is expected to be considerably lower than the 24,279 instances of take analyzed for authorization here (as described previously). Moreover, the Cook Inlet/Shelikof stock of harbor seals extends well south and west of Cook Inlet, with Apache's activity overlapping only a small portion of the stock's habitat. Harbor seals are known to haul out in large numbers in Kachemak Bay and at the mouth of several rivers, including Fox River, with both of these locations well south of Apache's survey area.
Previous monitoring reports also help to provide context for the number of individual harbor seals likely to be taken. In 2012, SAExploration Inc. observers detected fewer than 300 seals during 116 days of operations, with 100 seals the most seen at once, at a river mouth, hauled out, not in the water or exposed to seismic activity. In 2014, Apache observers saw an estimated 613 individuals in 82 days of operation, mostly during non-seismic periods. Most harbor seals were recorded from the land station, not source vessels. Of the 492 groups of harbor seals seen, 441 were seen during non-seismic operations. The number of harbor seals observed and reported within the take zone in previous surveys suggests that the predicted instances of take of harbor seals for Apache's surveys may be overestimates. Further, the known distribution of this harbor seal stock, including the known preference for haulouts at river mouths as well as the southern portion of Cook Inlet, suggest that the number of exposures calculated through the daily ensonified method is a notable overestimate of the number of individual seals likely to be taken. We have estimated for authorization the calculated number of instances of take, however, when these factors regarding the spatiotemporal distribution of this harbor seal stock throughout its range are considered, we believe that it is a reasonable prediction that not more than 25% of the individuals in the population will be taken.
NMFS finds that the numbers of animals estimated for take authorization here are small on a per-species or per-stock basis when considered relative to the relevant stock abundances. In addition to the quantitative methods used to estimate take, NMFS also considered qualitative factors that further support the “small numbers” determination, including: (1) The seasonal distribution and habitat use patterns of Cook Inlet beluga whales, which suggest that for much of the time only a small portion of the population would be accessible to impacts from Apache's activity, as most animals are found in the Susitna Delta region of Upper Cook Inlet from early May through September, during which seismic activity in the Susitna Delta area is restricted; (2) other cetacean species and Steller sea lions are not common in the seismic survey area. Therefore, NMFS determined that the numbers of animals likely to be taken is small.
The subsistence harvest of marine mammals is an integral part of the cultural identity of the region's Alaska Native communities. Inedible parts of the whale provide Native artisans with materials for cultural handicrafts, and the hunting itself perpetuates Native traditions by transmitting traditional skills and knowledge to younger generations (NOAA, 2007).
The Cook Inlet beluga whale has traditionally been hunted by Alaska Natives for subsistence purposes. For several decades prior to the 1980s, the Native Village of Tyonek residents were the primary subsistence hunters of Cook Inlet beluga whales. During the 1980s and 1990s, Alaska Natives from villages in the western, northwestern, and North Slope regions of Alaska either moved to or visited the south central region and participated in the yearly subsistence harvest (Stanek, 1994). From 1994 to 1998, NMFS estimated 65 whales per year (range 21-123) were taken in this harvest, including those successfully taken for food and those struck and lost.
On October 15, 2008, NMFS published a final rule that established long-term harvest limits on the Cook Inlet beluga whales that may be taken by Alaska Natives for subsistence purposes (73 FR 60976). That rule prohibits harvest for a 5-year period (2008-2012), if the average abundance for the Cook Inlet beluga whales from the prior five years (2003-2007) is below 350 whales. The next 5-year period that could allow for a harvest (2013-2017), would require the previous five-year average (2008-2012) to be above 350 whales. The 2008 Cook Inlet Beluga Whale Subsistence Harvest Final Supplemental Environmental Impact Statement (NMFS, 2008a) authorizes how many beluga whales can be taken during a 5-year interval based on the 5-year population estimates and 10-year measure of the population growth rate. Based on the 2008-2012 5-year abundance estimates, no hunt occurred between 2008 and 2012 (NMFS, 2008a). The Cook Inlet Marine Mammal Council, which managed the Alaska Native Subsistence fishery with NMFS, was disbanded by a unanimous vote of the Tribes' representatives on June 20, 2012. No harvest occurred in 2015 or is likely in 2016. Residents of the Native Village of Tyonek are the primary subsistence users in the Knik Arm area.
Data on the harvest of other marine mammals in Cook Inlet are lacking. There is a low level of subsistence hunting for harbor seals in Cook Inlet. Seal hunting occurs opportunistically among Alaska Natives who may be fishing or travelling in the upper Inlet near the mouths of the Susitna River, Beluga River, and Little Susitna River. Some data are available on the subsistence harvest of harbor seals, harbor porpoises, and killer whales in Alaska in the marine mammal stock assessments. However, these numbers are for the Gulf of Alaska including Cook Inlet, and they are not indicative of the harvest in Cook Inlet. Some detailed information on the subsistence harvest of harbor seals is available from past studies conducted by the Alaska Department of Fish & Game (Wolfe
Section 101(a)(5)(A) also requires NMFS to determine that the taking will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The primary concern is the disturbance of marine mammals through the introduction of anthropogenic sound into the marine environment during the seismic survey. Marine mammals could be behaviorally harassed and either become more difficult to hunt or temporarily abandon traditional hunting grounds. However, the seismic survey will not have any impacts to beluga harvests as none currently occur in Cook Inlet. Additionally, subsistence harvests of other marine mammal species are limited in Cook Inlet.
Regulations at 50 CFR 216.104(a)(12) require LOA applicants for activities that take place in Arctic waters to provide a Plan of Cooperation or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes. NMFS regulations define Arctic waters as waters above 60° N. latitude. Much of Cook Inlet is north of 60° latitude.
Since November 2010, Apache has met and continues to meet with many of the villages and traditional councils throughout the Cook Inlet region. During these meetings, no concerns have been raised regarding potential conflict with subsistence harvest. Past meetings have been held with Alexander Creek, Knikatnu, Native Village of Tyonek, Salamatof, Tyonek Native Corporation, Ninilchik Traditional Council, Ninilchik Native Association, Village of Eklutna, Kenaitze Indian Tribe, and Cook Inlet Region, Inc.
Additionally, Apache met with the Cook Inlet Marine Mammal Council (CIMMC) to describe the project activities and discuss subsistence concerns. The meeting provided information on the time, location, and features of the program, opportunities for involvement by local people, potential impacts to marine mammals, and mitigation measures to avoid impacts. Discussions regarding marine seismic operations continued with the CIMMC until its disbandment.
In 2014, Apache held meetings or discussions regarding project activities associated with this rule with the following entities: Native Village of Tyonek, Tyonek Native Corporation, Cook Inlet Region, Inc., Ninilchik Native Association, Ninilchik Tribal Council, Salamatof Native Association, Cook Inlet Keeper, Alaska Salmon Alliance, Upper Cook Inlet Drift Association, and the Kenai Peninsula Fisherman's Association. Further, Apache has placed posters in local businesses, offices, and stores in nearby communities and published newspaper ads in the Peninsula Clarion.
Apache has identified the following features that are intended to reduce impacts to subsistence users:
• In-water seismic activities will follow mitigation procedures to minimize effects on the behavior of marine mammals and, therefore, opportunities for harvest by Alaska Native communities; and
• Regional subsistence representatives may support or join PSO efforts recording marine mammal observations along with marine mammal biologists during the monitoring programs and will be provided with annual reports.
Apache and NMFS recognize the importance of ensuring that ANOs and federally recognized tribes are informed,
The project will not have any effect on beluga whale harvests because no beluga harvest will take place in 2016, nor is one likely to occur in the other years that would be covered by the 5-year regulations and associated LOAs. Additionally, the seismic survey area is not an important site for the subsistence harvest of other species of marine mammals. Also, because of the relatively small proportion of marine mammals utilizing upper Cook Inlet, the number harvested is expected to be extremely low. Therefore, because the program would result in only temporary disturbances, the seismic program would not impact the availability of these other marine mammal species for subsistence uses.
The timing and location of subsistence harvest of Cook Inlet harbor seals may coincide with Apache's project, but because this subsistence hunt is conducted opportunistically and at such a low level (NMFS, 2013c), Apache's program is not expected to have an impact on the subsistence use of harbor seals.
NMFS anticipates that any effects from Apache's seismic survey on marine mammals, especially harbor seals and Cook Inlet beluga whales, which are or have been taken for subsistence uses, would be short-term, site specific, and limited to inconsequential changes in behavior and mild stress responses. NMFS does not anticipate that the authorized taking of affected species or stocks will reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (1) Causing the marine mammals to abandon or avoid hunting areas; (2) directly displacing subsistence users; or (3) placing physical barriers between the marine mammals and the subsistence hunters; and that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the mitigation and monitoring measures, NMFS has determined that there will not be an unmitigable adverse impact on subsistence uses from Apache's activities. Additionally, the adaptive management component of this rulemaking allows NMFS to adjust mitigation and monitoring requirements as appropriate to minimize severity and level of take of marine mammals due to Apache's activity.
There are three marine mammal species listed as endangered under the ESA with confirmed or possible occurrence in the project area: The Cook Inlet beluga whale, the western DPS of Steller sea lion, and the Central North Pacific humpback whale. In addition, the action will occur within designated critical habitat for the Cook Inlet beluga whale. NMFS's Permits and Conservation Division consulted with NMFS' Alaska Region Protected Resources Division under section 7 of the ESA. This consultation concluded on February 3, 2016, when a Biological Opinion was issued. The Biological Opinion determined that the issuance of an IHA is not likely to jeopardize the continued existence of the Cook Inlet beluga whales, Central North Pacific humpback whales, or western distinct population segment of Steller sea lions or destroy or adversely modify Cook Inlet beluga whale critical habitat. Finally, the Alaska region issued an ITS for Cook Inlet beluga whales, humpback whales, and Steller sea lions. The ITS contains reasonable and prudent measures implemented by the terms and conditions to minimize the effects of take.
NMFS prepared an EA that includes an analysis of potential environmental effects associated with NMFS' issuance of five-year regulations to Apache to take marine mammals incidental to conducting a 3D seismic survey program in Cook Inlet, Alaska. NMFS has finalized the EA and prepared a FONSI for this action. Therefore, preparation of an Environmental Impact Statement is not necessary.
The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. Apache Alaska Corporation is the only entity that would be subject to the requirements in these regulations. Apache Alaska Corporation is a part of Apache Corporation, which has operations and locations in the United State, Canada, Australia, Egypt, and the United Kingdom (North Sea), employs thousands of people worldwide, and has a market value in the billions of dollars. Therefore, Apache is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports. Send comments regarding any aspect of this data collection, including suggestions for reducing the burden, to NMFS and the OMB Desk Officer (see
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, 50 CFR part 217 is amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to Apache Alaska Corporation (Apache), and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section incidental to Apache's oil and gas exploration seismic survey program operations.
(b) The taking of marine mammals by Apache may be authorized in a Letter of Authorization (LOA) only if it occurs in Cook Inlet, Alaska.
Regulations in this subpart are effective from August 19, 2016 through July 20, 2021.
(a) Under LOAs issued pursuant to § 216.106 of this chapter and § 217.136, the Holder of the LOA (hereinafter “Apache”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.130(b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities identified in § 217.130(a) is limited to the indicated number of takes of individuals of the following species and is limited to Level B harassment:
(1) Cetaceans:
(i) Beluga whale (
(ii) Harbor porpoise (
(iii) Killer whale (
(iv) Gray whale (
(v) Humpback whale (
(vi) Minke whale (
(vii) Dall's porpoise (
(2) Pinnipeds:
(i) Harbor seal (
(ii) Steller sea lion (
Notwithstanding takings contemplated in § 217.130 and authorized by a LOA issued under § 216.106 of this chapter and § 217.136, no person in connection with the activities described in § 217.130 may:
(a) Take any marine mammal not specified in § 217.132(b);
(b) Take any marine mammal specified in § 217.132(b) other than by incidental Level B harassment;
(c) Take any marine mammal in excedance of the numbers specified in 217.132(b)(1);
(d) Take a marine mammal specified in § 217.132(b) if the National Marine Fisheries Service (NMFS) determines such taking is resulting or will result in more than a negligible impact on the species or stocks of such marine mammal;
(e) Take a marine mammal specified in § 217.132(b) if NMFS determines such taking is resulting in or will result in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or
(f) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under § 216.106 and § 217.136 of this chapter.
When conducting the activities identified in § 217.130(a), the mitigation measures contained in any LOA issued under § 216.106 and § 217.136 of this chapter must be implemented. These mitigation measures include but are not limited to:
(a) General conditions:
(1) If any marine mammal species not listed in § 217.132(b) are observed during conduct of the activities identified in § 217.130(a) and are likely to be exposed to sound pressure levels (SPLs) greater than or equal to 160 dB re 1 µPa (rms), Apache must avoid such exposure (
(2) If the allowable number of takes on an annual basis listed for any marine mammal species in § 217.132(b) is exceeded, or if any marine mammal species not listed in § 217.132(b) is exposed to SPLs greater than or equal to 160 dB re 1 µPa (rms), Apache shall immediately cease survey operations involving the use of active sound sources (
(3) Apache must notify the Office of Protected Resources, NMFS, at least 48 hours prior to the start of seismic survey activities each year.
(4) Apache shall conduct briefings as necessary between vessel crews, marine mammal monitoring team, and other relevant personnel prior to the start of all survey activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and reporting requirements.
(b)
(2) Vessel-based monitoring for marine mammals must be conducted before, during, and after all activity identified in § 217.130(a) that is conducted during daylight hours (defined as nautical twilight-dawn to
(i) A qualified PSO is a third-party trained biologist, with prior experience as a PSO during seismic surveys and the following minimum qualifications:
(A) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
(B) Advanced education in biological science or related field (undergraduate degree or higher required);
(C) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);
(D) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(E) Sufficient training, orientation, or experience with the survey operation to provide for personal safety during observations;
(F) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when survey activities were conducted; dates and times when survey activities were suspended to avoid exposure of marine mammals to sound within defined exclusion zones; and marine mammal behavior; and
(G) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(ii) PSOs must have access to binoculars (7 x 50 with reticle rangefinder; Fujinon or equivalent quality), and optical rangefinders, and shall scan the surrounding waters from the best available suitable vantage point with the naked eye and binoculars. At least one PSO shall scan the surrounding waters during all daylight hours using bigeye binoculars.
(iii) PSOs shall also conduct visual monitoring:
(A) While the airgun array and nodes are being deployed or recovered from the water; and
(B) During periods of good visibility when the sound sources are not operating for comparison of animal abundance and behavior.
(iv) PSOs shall be on watch at all times during daylight hours when survey operations are being conducted, unless conditions (
(3) Survey activity must begin during periods of good visibility, which is defined as daylight hours when weather (
(c)
(2) Apache must shut down or power down the source, as appropriate, immediately upon detection of any marine mammal approaching or within the relevant Level A exclusion zone or upon detection of any beluga whale or aggregation of five or more harbor porpoises or killer whales approaching or within the relevant Level B exclusion zone. Power down is defined as reduction of total airgun array volume from either the full-power airgun array (2,400 in
(i) When a requirement for power down or shutdown is triggered, the call for implementation shall be made by the lead PSO on duty and Apache shall comply. Any disagreement with a determination made by the lead PSO on duty shall be discussed after implementation of power down or shutdown, as appropriate.
(ii) Following a power down or shutdown not exceeding ten minutes, Apache shall follow the ramp-up procedure described in paragraph (c)(1) of this section to return to full-power operation.
(iii) Following a shutdown exceeding ten minutes, Apache shall follow the exclusion zone clearance, described in paragraph (b)(3) of this section, and ramp-up procedures, described in paragraph (c)(1) of this section, before returning to full-power operation.
(3) Survey operations may be conducted during low-visibility conditions (
(d)
(2) Apache shall alter speed or course during seismic operations if a marine mammal, based on its position and relative motion, appears likely to enter the relevant exclusion zone and such alteration may result in the animal not entering the zone. If speed or course alteration is not safe or practicable, or if after alteration the marine mammal still appears likely to enter the zone, power down or shutdown must be implemented.
(3) Apache shall not operate airguns within 16 km of the Mean Lower low water (MLLW) line of the Susitna Delta (Beluga River to the Little Susitna River) between April 15 and October 15.
(4) Apache must suspend survey operations if a live marine mammal stranding is reported within a distance of two times the 160dB isopleth of the seismic source vessel coincident to or within 72 hours of survey activities involving the use of airguns, regardless of any suspected cause of the stranding. A live stranding event is defined as a marine mammal found on a beach or shore and unable to return to the water; on a beach or shore and able to return to the water but in apparent need of medical attention; or in the water but unable to return to its natural habitat under its own power or without assistance.
(i) Apache must immediately implement a shutdown of the airgun array upon becoming aware of the live stranding event within 19 km of the seismic array.
(ii) Shutdown procedures shall remain in effect until NMFS determines that all live animals involved in the stranding have left the area (either of their own volition or following responder assistance).
(iii) Within 48 hours of the notification of the live stranding event, Apache must inform NMFS where and when they were operating airguns, beginning 72 hours before the stranding was first observed, and at what discharge volumes.
(iv) Apache must appoint a contact who can be reached at any time for notification of live stranding events. Immediately upon notification of the live stranding event, this person must order the immediate shutdown of the survey operations.
(a)
(2) Apache shall utilize a shore-based station to visually monitor for marine mammals. The shore-based station must be staffed by PSOs under the same minimum requirements described in § 217.134(b)(2), must be located at an appropriate height to monitor the area ensonified by that day's survey operations, must be of sufficient height to observe marine mammals within the ensonified area; and must be equipped with pedestal-mounted bigeye (25 x 150) binoculars. The shore-based PSOs shall scan the defined exclusion and disturbance zones prior to, during, and after survey operations, and shall be in contact with vessel-based PSOs via radio to communicate sightings of marine mammals approaching or within the defined zones.
(3) When weather conditions allow for safety, Apache shall utilize helicopter or fixed-wing aircraft to conduct daily aerial surveys of the area that they expect to survey prior to the commencement of operations in order to identify locations of beluga whale aggregations (five or more whales) or cow-calf pairs. Daily surveys that cover all the area potentially surveyed by vessel in that particular day shall be scheduled to occur at least thirty but no more than 120 minutes prior to any seismic survey-related activities (including but not limited to node laying/retrieval or airgun operations) and surveys of similar size shall also occur on days when there may be no seismic activities. Additionally, weekly comprehensive aerial surveys shall occur along and parallel to the shoreline throughout the project area as well as the eastern and western shores of central and northern Cook Inlet in the vicinity of the survey area.
(i) When weather conditions allow for safety, aerial surveys shall fly at an altitude of 305 m (1,000 ft). In the event of a marine mammal sighting, aircraft shall attempt to maintain a lateral distance of 457 m (1,500 ft) from the animal(s). Aircraft shall avoid approaching marine mammals head-on, flying over or passing the shadow of the aircraft over the animal(s).
(ii) [Reserved]
(4) PSOs must use NMFS-approved data forms and shall record the following information:
(i) Effort information, including vessel name; PSO name; survey type; date; time when survey (observing and activities) began and ended; vessel location (latitude/longitude) when survey (observing and activities) began and ended; vessel heading and speed (knots).
(ii) Environmental conditions while on visual survey, including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, ice cover (percent of surface, ice type, and distance to ice if applicable), cloud cover, sun glare, and overall visibility to the horizon (in distance).
(iii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
(iv) Activity information, such as the number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
(v) When a marine mammal is observed, the following information shall be recorded:
(A) Information related to the PSO including: Watch status (sighting made by PSO on/off effort, opportunistic,
(B) Vessel information including: Vessel location at time of sighting; water depth; direction of vessel's travel (compass direction);
(C) Mammal-specific physical observations including: Direction of animal's travel relative to the vessel (drawing is preferred); pace of the animal; estimated distance to the animal and its heading relative to vessel at initial sighting; identification of the animal (genus/species/sub-species, lowest possible taxonomic level, or unidentified; also note the composition of the group if there is a mix of species); estimated number of animals (high/low/best); estimated number of animals by cohort (when possible; adults, yearlings, juveniles, calves, group composition, etc.); description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
(D) Mammal-specific behavioral observations including: Detailed behavioral observations (
(vi) Description of any actions implemented in response to the sighting (
(vii) If mitigation action was not implemented when required, description of circumstances.
(viii) Description of all use of mitigation gun including running time, start and stop time, and reason for implementation.
(5) The data listed in § 217.135(a)(4)(i) and (ii) shall also be recorded at the start and end of each watch and during a watch whenever there is a change in one or more of the variables.
(b)
(2) [Reserved]
(c)
(2) Apache must submit a weekly field report to NMFS Office of Protected Resources each Thursday during the weeks when in-water seismic survey activities take place. The weekly field reports shall summarize species detected (number, location, distance from seismic vessel, behavior), in-water activity occurring at the time of the sighting (discharge volume of array at time of sighting, seismic activity at time of sighting, visual plots of sightings, and number of power downs and shutdowns), behavioral reactions to in-water activities, and the number of marine mammals exposed to sound at or exceeding relevant thresholds. Additionally, Apache must include which km
(3) Apache must submit a monthly report, no later than the fifteenth of each month, to NMFS Office of Protected Resources for all months during which in-water seismic survey activities occur. These reports must summarize the information described in paragraph (a)(4) of this section and shall also include:
(i) An estimate of the number (by species) of:
(A) Pinnipeds that have been exposed to sound (based on visual observation) at received levels greater than or equal to 160 dB re 1 µPa (rms) and/or 190 dB re 1 µPa (rms) with a discussion of any specific behaviors those individuals exhibited; and
(B) Cetaceans that have been exposed to sound (based on visual observation) at received levels greater than or equal to 160 dB re 1 µPa (rms) and/or 180 dB re 1 µPa (rms) with a discussion of any specific behaviors those individuals exhibited.
(ii) A description of the implementation and effectiveness of the terms and conditions of the Biological Opinion's Incidental Take Statement and mitigation measures of the LOA. For the Biological Opinion, the report shall confirm the implementation of each Term and Condition, as well as any conservation recommendations, and describe their effectiveness in minimizing the adverse effects of the action on Endangered Species Act-listed marine mammals.
(4) Apache shall submit an annual report to NMFS Office of Protected Resources covering a given calendar year by October 31st annually. The annual report shall include summaries of the information described in paragraph (a)(4) of this section and shall also include:
(i) Summaries of monitoring effort (
(ii) Analyses of the effects of various factors influencing detectability of marine mammals (
(iii) Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;
(iv) Analyses of the effects of survey operations; and
(v) Sighting rates of marine mammals during periods with and without seismic survey activities (and other variables that could affect detectability), such as:
(A) Initial sighting distances versus survey activity state;
(B) Closest point of approach versus survey activity state;
(C) Observed behaviors and types of movements versus survey activity state;
(D) Numbers of sightings/individuals seen versus survey activity state;
(E) Distribution around the source vessels versus survey activity state; and
(F) Numbers of marine mammals (by species) detected in the 160, 180, and 190 dB re 1 µPa (rms) zones.
(5) Apache shall submit a final annual report to the Office of Protected Resources, NMFS, within thirty days after receiving comments from NMFS on the draft report, by November 30th annually.
(d)
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (
(iv) Description of marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s).
(2) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Apache to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Apache may not resume their activities until notified by NMFS that they may do so.
(3) In the event that Apache discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
(4) In the event that Apache discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the LOA (
(a) To incidentally take marine mammals pursuant to this subpart, Apache must apply for and obtain an LOA, as required by § 216.106 of this chapter.
(b) LOAs issued to Apache, unless suspended or revoked, may be effective for a period of time not to exceed one year or the period of validity of this subpart.
(c) An LOA application must be submitted to the Director, Office of Protected Resources, NMFS, by December 31st of the year preceding the desired start date.
(d) An LOA application must include the following information:
(1) The date(s), duration, and the area(s) where the activity will occur;
(2) The species and/or stock(s) of marine mammals likely to be found within each area;
(3) The estimated percentage and numbers of marine mammal species/stocks potentially affected in each area for the period of effectiveness of the Letter of Authorization.
(4) If an application is for an LOA renewal, it must meet the requirements set forth in § 217.137.
(e) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Apache must apply for and obtain a modification of the Letter of Authorization as described in § 217.137.
(f) An LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(g) Issuance of an LOA (including renewals and modifications) will be based on a determination by NMFS that the level of taking will be consistent with the findings made for the total taking allowable under this subpart.
(h) If NMFS determines that the level of taking is resulting or may result in more than a negligible impact on the species or stocks of such marine mammal, the LOA may be modified or suspended after notice and a public comment period.
(i) Notice of issuance or denial of a LOA shall be published in the
(a) An LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be renewed or modified upon request by the applicant, provided the following are met (in addition to the determination in § 216.136(e)):
(1) Notification to NMFS that the activity described in the application submitted under § 217.130(a) will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming or remaining LOA period;
(2) Timely receipt (by the dates indicated) of monitoring reports, as required under § 217.135(c)(3).
(3) A determination by the NMFS that the mitigation, monitoring and reporting measures required under § 217.135(c) and the LOA issued under § 216.106 and § 217.136, were undertaken and are expected to be undertaken during the period of validity of the LOA.
(b) If a request for a renewal of a Letter of Authorization indicates that a substantial modification, as determined by NMFS, to the described work, mitigation or monitoring undertaken during the upcoming season will occur, the NMFS will provide the public a period of 30 days for review and comment on the request as well as the proposed modification to the LOA. Review and comment on renewals of Letters of Authorization are restricted to:
(1) New cited information and data indicating that the original determinations made for the regulations are in need of reconsideration, and
(2) Proposed changes to the mitigation and monitoring requirements contained in this subpart or in the current Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(d) An LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130 may be modified by NMFS under the following circumstances:
(1)
(i) Possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures include:
(A) Results from Apache's monitoring from the previous year(s).
(B) Results from marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the
(2) NMFS will withdraw or suspend an LOA if, after notice and opportunity for public comment, NMFS determines this subpart is not being substantially complied with or that the taking allowed is or may be having more than a negligible impact on an affected species or stock specified in § 217.132(b) or an unmitigable adverse impact on the availability of the species or stock for subsistence uses. The requirement for notice and comment will not apply if NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals. Notice would be published in the
Category | Regulatory Information | |
Collection | Federal Register | |
sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
Publisher | Office of the Federal Register, National Archives and Records Administration |