Page Range | 50283-50604 | |
FR Document |
Page and Subject | |
---|---|
81 FR 50462 - Initiation of Five-Year (“Sunset”) Review | |
81 FR 50588 - Sunshine Act Meeting | |
81 FR 50543 - Receipt of Incidental Take Permit Applications for Participation in the Amended Oil and Gas Industry Conservation Plan for the American Burying Beetle in Oklahoma | |
81 FR 50500 - Notice to all Interested Parties of the Termination of the Receivership of 10123, Southern Colorado National Bank Pueblo, Colorado | |
81 FR 50542 - Receipt of Applications for Endangered Species Permits | |
81 FR 50321 - Adjustment of Civil Monetary Penalties for Inflation | |
81 FR 50532 - Opportunity to Co-sponsor an Office on Women's Health Awards Ceremony and Event for its 25th Anniversary | |
81 FR 50521 - Proposed Information Collection Activity; Comment Request; State Developmental Disabilities Council 5-Year State Plan | |
81 FR 50599 - Multiemployer Pension Plan Application To Reduce Benefits. | |
81 FR 50571 - Mail Classification Schedule Changes Concerning Assignment of Country Groups | |
81 FR 50342 - Air Plan Approval; VT; Prevention of Significant Deterioration, Nonattainment and Minor New Source Review | |
81 FR 50415 - Air Plan Approval; VT; Prevention of Significant Deterioration, Nonattainment and Minor New Source Review | |
81 FR 50358 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Measurement and Reporting of Condensable Particulate Matter Emissions | |
81 FR 50430 - Approval and Promulgation of Air Quality Implementation Plans; Interstate Transport for Utah | |
81 FR 50409 - Air Plan Approval; Alabama and North Carolina; Interstate Transport-2010 NO2 | |
81 FR 50569 - Advisory Committee on Reactor Safeguards (ACRS), Meeting of the ACRS Subcommittee on Reliability and PRA | |
81 FR 50570 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on NUSCALE; Notice of Meeting | |
81 FR 50568 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Plant Operations and Fire Protection; Notice of Meeting | |
81 FR 50568 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on AP1000 | |
81 FR 50566 - Pennsylvania State University Breazeale Nuclear Reactor | |
81 FR 50566 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978 | |
81 FR 50569 - U.S. Department of Veterans Affairs; Alan J. Blotcky Reactor Facility | |
81 FR 50565 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978 | |
81 FR 50303 - Food Labeling; Calorie Labeling of Articles of Food in Vending Machines; Extension of Compliance Date | |
81 FR 50596 - Qualification of Drivers; Exemption Applications; Vision | |
81 FR 50593 - Qualification of Drivers; Exemption Applications; Hearing | |
81 FR 50494 - Privacy Act; System of Records: Establishment of New Passport Expiration Notification System (PENS) | |
81 FR 50564 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 50434 - Public Notification for Combined Sewer Overflows in the Great Lakes; Public Listening Session; Request for Stakeholder Input | |
81 FR 50594 - Qualification of Drivers; Application for Exemptions; Hearing | |
81 FR 50592 - Commercial Driver's License (CDL) Testing; Application for Exemption: State of Minnesota | |
81 FR 50602 - Submission for OMB Review; Comment Request | |
81 FR 50500 - Notice of Termination; 10447 The Farmers Bank of Lynchburg, Lynchburg, Tennessee | |
81 FR 50484 - Agency Information Collection Activities: Comment Request | |
81 FR 50319 - Special Local Regulation; Seattle Seafair Unlimited Hydroplane Race, Lake Washington, WA | |
81 FR 50405 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the West Yakutat District of the Gulf of Alaska | |
81 FR 50591 - U.S. Department of State Advisory Committee on Private International Law (ACPIL): Public Meeting on Conciliated Settlement Agreements | |
81 FR 50560 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers Under Prohibited Transaction Exemption 1984-14 | |
81 FR 50559 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Plan Asset Transactions Determined by In-House Asset Managers Under Prohibited Transaction Class Exemption 1996-23 | |
81 FR 50404 - Fisheries of the Exclusive Economic Zone Off Alaska; Dusky Rockfish in the West Yakutat District of the Gulf of Alaska | |
81 FR 50461 - National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule | |
81 FR 50492 - Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery | |
81 FR 50492 - Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use Act | |
81 FR 50599 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee; Correction | |
81 FR 50283 - Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States; Change to the Quality and Handling Requirements | |
81 FR 50406 - Irish Potatoes Grown in Colorado; Modification of the Handling Regulation for Area No. 2 | |
81 FR 50533 - Merchant Marine Personnel Advisory Committee; Vacancies | |
81 FR 50564 - Notice of Intent To Grant Partially Exclusive License | |
81 FR 50436 - Fisheries of the Exclusive Economic Zone off Alaska; Modifications to Recordkeeping and Reporting Requirements | |
81 FR 50460 - Notice of Meeting of the National Organic Standards Board | |
81 FR 50552 - Office of the Attorney General; Supplemental Guidelines for Juvenile Registration Under the Sex Offender Registration and Notification Act | |
81 FR 50598 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SERENITE; Invitation for Public Comments | |
81 FR 50599 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MERLOT; Invitation for Public Comments | |
81 FR 50463 - Endangered and Threatened Wildlife and Plants; Notice of 12-Month Finding on Petitions To List Porbeagle Shark as Threatened or Endangered Under the Endangered Species Act (ESA) | |
81 FR 50501 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
81 FR 50603 - Agency Information Collection (Statement of Disappearance, VA Form 21P-1775) Activity Under OMB Review | |
81 FR 50603 - Agency Information Collection (Application of Refund of Educational Contributions) Activity Under OMB Review | |
81 FR 50541 - Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Review of Orangutan | |
81 FR 50499 - Information Collections Being Reviewed by the Federal Communications Commission | |
81 FR 50498 - Information Collections Being Submitted for Review and Approval to the Office of Management and Budget | |
81 FR 50528 - Outsourcing Facility Fee Rates for Fiscal Year 2017 | |
81 FR 50522 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Tobacco Retailers on Tobacco Retailer Training Programs | |
81 FR 50561 - Nemko North America, Inc.: Application for Expansion of Recognition | |
81 FR 50563 - Formaldehyde Standard; Extension of the Office of Management and Budget's (OMB) Approval of Collections of Information | |
81 FR 50525 - Food Safety Modernization Act Domestic and Foreign Facility Reinspection, Recall, and Importer Reinspection Fee Rates for Fiscal Year 2017 | |
81 FR 50531 - Request for Nominations on the Tobacco Products Scientific Advisory Committee | |
81 FR 50558 - Agency Information Collection Activities; Proposed eCollection; eComments Requested Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery | |
81 FR 50401 - International Fisheries; Tuna and Tuna-Like Species in the Eastern Pacific Ocean; Fishing Restrictions Regarding Mobulid Rays | |
81 FR 50520 - Proposed Information Collection Activity; Comment Request | |
81 FR 50460 - Submission for OMB Review; Comment Request | |
81 FR 50320 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA | |
81 FR 50495 - Information Collection Being Reviewed by the Federal Communications Commission | |
81 FR 50497 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
81 FR 50496 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
81 FR 50463 - Submission for OMB Review; Comment Request | |
81 FR 50444 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113 | |
81 FR 50549 - Certain Hand Dryers and Housings for Hand Dryers: Institution of Investigation | |
81 FR 50485 - Charter Amendment of Department of Defense Federal Advisory Committees | |
81 FR 50394 - Endangered and Threatened Wildlife and Plants; Listing Three Angelshark Species as Endangered Under the Endangered Species Act | |
81 FR 50491 - Applications for New Awards; Promise Neighborhoods Program-Implementation Grant Competition; Correction Catalog of Federal Domestic Assistance (CFDA) Number: 84.215N. | |
81 FR 50550 - Agency Information Collection Activities; Proposed Collection Comments Requested; USMS Medical Forms | |
81 FR 50501 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities | |
81 FR 50501 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
81 FR 50483 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
81 FR 50584 - New York Life Insurance and Annuity Corporation, et al; Notice of Application | |
81 FR 50580 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule to Amend the Fees Schedule | |
81 FR 50572 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing of Proposed Rule Change To Amend Rule 11.230 To Rename the “Router Plus” Routing Option to “Router” | |
81 FR 50582 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Phlx Rule 754 (Employees' Discretion as to Customers' Accounts) | |
81 FR 50573 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Collection of Exchange Fees and Other Claims and Billing Policy | |
81 FR 50588 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the Pointbreak Agriculture Commodity Strategy Fund of the Pointbreak ETF Trust Under BZX Rule 14.11(i), Managed Fund Shares | |
81 FR 50576 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Change, as Modified by Amendment No. 1, Relating to the Listing and Trading of Shares of the Virtus Japan Alpha ETF Under NYSE Arca Equities Rule 8.600 | |
81 FR 50600 - Proposed Collection; Comment Request | |
81 FR 50523 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry on Electronic Drug Product Reporting of Human Drug Compounding Outsourcing Facilities Under Section 503B of the Federal Food, Drug, and Cosmetic Act | |
81 FR 50601 - Submission for OMB Review; Comment Request | |
81 FR 50597 - Fiscal Year 2015 Low or No Emission Vehicle Deployment (LoNo) Program | |
81 FR 50324 - Final Priorities, Requirements, and Definition-Disability Innovation Fund-Transition Work-Based Learning Model Demonstrations | |
81 FR 50485 - Applications for New Awards; Rehabilitation Services Administration-Disability Innovation Fund-Transition Work-Based Learning Model Demonstrations | |
81 FR 50416 - Air Quality Plans; Florida; Infrastructure Requirements for the 2012 PM2.5 | |
81 FR 50428 - Air Plan Approval; Kentucky; Revisions to Louisville Definitions and Ambient Air Quality Standards | |
81 FR 50427 - Approval of California Air Plan Revisions, Modoc County Air Pollution Control District, Permit Programs | |
81 FR 50362 - Approval of California Air Plan Revisions, Modoc County Air Pollution Control District, Permit Programs | |
81 FR 50502 - Medicare Program; FY 2017 Inpatient Psychiatric Facilities Prospective Payment System-Rate Update | |
81 FR 50533 - Extension and Redesignation of Syria for Temporary Protected Status | |
81 FR 50482 - Availability of Seats for National Marine Sanctuary Advisory Councils | |
81 FR 50348 - Approval of California Air Plan Revisions, Placer County Air Pollution Control District and Ventura County Air Pollution Control District | |
81 FR 50416 - Approval of California Air Plan Revisions, Placer County Air Pollution Control District and Ventura County Air Pollution Control District | |
81 FR 50339 - Revisions to California State Implementation Plan; Bay Area Air Quality Management District; Stationary Source Permits | |
81 FR 50367 - Bus Testing: Establishment of Performance Standards, a Bus Model Scoring System, a Pass/Fail Standard and Other Program Updates | |
81 FR 50365 - NASA Federal Acquisition Regulation Supplement: Clarification of Award Fee Evaluations and Payments (NFS Case 2016-N008) | |
81 FR 50290 - Requirements for Frequency and Voltage Ride Through Capability of Small Generating Facilities | |
81 FR 50353 - Air Plan Approval; Maine: Prevention of Significant Deterioration; PM2.5 | |
81 FR 50426 - Air Plan Approval; Maine: Prevention of Significant Deterioration; PM2.5 | |
81 FR 50336 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing Materials | |
81 FR 50427 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing Materials | |
81 FR 50408 - Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds-Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) Ethane (HFE-347pcf2) | |
81 FR 50330 - Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds-Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) Ethane (HFE-347pcf2) | |
81 FR 50351 - Approval of Missouri's Air Quality Implementation Plans; Regional Haze State Implementation Plan Revision and 2013 Five-Year Progress Report | |
81 FR 50360 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Reasonable Further Progress Plan, Contingency Measures, Motor Vehicle Emissions Budgets for the Baltimore 1997 8-Hour Ozone Serious Nonattainment Area | |
81 FR 50298 - Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants | |
81 FR 50547 - Glycine From China; Institution of a Five-Year Review | |
81 FR 50544 - Certain Polyester Staple Fiber From Korea and Taiwan: Institution of Five-Year Reviews | |
81 FR 50306 - Amendments to Civil Penalty Regulations |
Agricultural Marketing Service
Food Safety and Inspection Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Energy Information Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Community Living Administration
Food and Drug Administration
Coast Guard
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Office of Natural Resources Revenue
Employment and Training Administration
Occupational Safety and Health Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Maritime Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Agricultural Marketing Service, USDA.
Final rule.
This rule implements a recommendation from the Peanut Standards Board (Board) to revise the minimum quality and handling standards for domestic and imported peanuts marketed in the United States (Standards). The Board advises the Secretary of Agriculture regarding potential changes to the Standards and is comprised of producers and industry representatives. This rule revises the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards. It also makes numerous other changes to better reflect current industry practices and revises outdated language. The Board believes these changes will make additional peanuts available for sale, help increase efficiencies, and reduce costs to the industry.
Effective August 31, 2016.
Steven W. Kauffman, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email:
Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This final rule is issued under the Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States (Standards), as amended (7 CFR part 996), as established pursuant to Public Law 107-171, the Farm Security and Rural Investment Act of 2002 (Act). The Standards regulate the quality and handling of domestic and imported peanuts marketed in the United States.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process.
This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect and shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects as this Act; but is intended that all such statutes shall remain in full force and effect except in so far as they are inconsistent herewith or repugnant hereto (7 U.S.C. 587).
There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.
The Act requires that USDA take several actions with regard to peanuts marketed in the United States. These include ensuring mandatory inspection on all peanuts marketed in the United States; developing and implementing peanut quality and handling requirements; establishing the Board comprised of producers and industry representatives to advise USDA regarding the quality and handling requirements under the Standards; and modifying those quality and handling requirements when needed. USDA is required by the Act to consult with the Board prior to making any changes to the Standards.
Pursuant to the Act, USDA has consulted with Board members in its review of the changes to the Standards included in this final rule. This final rule implements the revisions to the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards. This final rule also makes numerous other changes to the Standards to better reflect current industry practices and to revise outdated language. The Board believes these changes will make additional peanuts available for sale, increase efficiencies, and reduce industry costs. These changes were recommended by the Board at its meetings on June 24, 2015, and November 18, 2015.
The Standards establish minimum incoming and outgoing quality requirements for domestic and imported peanuts marketed in the United States. Mandatory inspection is required to ensure that the quality regulations are met. The Standards also require an identification process so peanuts can be identified and tracked during processing and disposition. Finally, the Standards specify reporting and recordkeeping requirements for handlers and importers.
Sections 996.30 and 996.31 of the Standards outline the incoming and outgoing quality standards, respectively, for peanuts. The incoming standards
Section 996.15 establishes a definition for positive lot identification (PLI). Section 996.31 requires PLI on all peanuts designated for human consumption as part of the outgoing standards. Section 996.40 establishes handling standards for peanuts and includes specifics on how PLI will be used throughout the handling process, from initial identification through the sampling and testing process. Section 996.50 outlines the process for reconditioning failing lots and establishes PLI requirements to track and identify the peanuts throughout the reconditioning process. Section 996.74 outlines the compliance requirements for the Standards and includes penalties for failing to maintain proper PLI.
Sections 996.71 and 996.73 establish the reporting and recordkeeping requirements under the Standards. These sections specify, in part, the reports required and establish what records need to be maintained and for how long.
The Standards were last revised in 2005. In 2014, the American Peanut Shellers Association (APSA) started a review of the current Standards and developed a proposal to revise the Standards to reflect changes in the industry and to make other changes to bring the Standards up to date. These recommended revisions were shared with USDA and industry representatives and were then presented to the Board at its meeting on June 24, 2015. The Board voted to approve the recommendations from APSA in their entirety. In addition, a subcommittee was created to work with USDA to review and recommend any additional conforming changes to the Standards necessary to facilitate the revisions requested by the industry. At a meeting on November 18, 2015, the Board reviewed the modifications and conforming changes from the subcommittee and USDA, and approved them unanimously. Consequently, this final rule makes the following recommended changes.
This final rule revises the minimum quality requirements under both the incoming and outgoing standards. The industry originally thought the presence of foreign material in incoming peanuts could promote the growth of aflatoxin. Therefore, a limit on the amount of foreign material in incoming peanuts was established. However, the industry no longer believes there to be a correlation between foreign material and aflatoxin. In addition, due to advances in technology, foreign material is easily removed from incoming peanuts, and handlers are able to remove foreign material from incoming peanuts to a level that is lower than the limit currently specified in the incoming standards. Further, most handlers are setting their own tolerances for the presence of foreign material. Eliminating the maximum amount of foreign material that incoming farmers stock peanuts may contain from the Standards provides additional flexibility by allowing individual handlers to determine the amount of foreign material they are willing to accept. As such, this action removes the current limit of 10.49 percent on the amount of foreign material that incoming farmers stock peanuts may contain.
The outgoing quality standards currently include a table that outlines, in part, requirements for damage, minor defects, foreign material, and moisture. Two of the columns of the table deal with damage and defects. The first of these columns provides the allowance for damage to unshelled peanuts and kernels, and the second column provides the allowance for minor defects. Currently the allowance for major damage is 1.5 percent for lots excluding splits and 2 percent for lots of splits. The current allowance for minor defects is 2.5 percent, except for No. 2 Virginia peanuts, for which the allowance for minor defects is 3 percent.
Under the proposal from APSA, the two columns on damage will be merged into one column and will set one overall allowance for damage on unshelled peanuts, cleaned-inshell peanuts, and kernels at 3.5 percent. Over the years, the industry has found that growing practices such as no till farming and modern harvesting practices have increased the amount of damage to individual kernels. In addition, the shift to new peanut varieties that produce larger kernels has impacted the sampling of peanuts for damage. The larger kernels reduce the number of peanuts in the sample such that damaged kernels have a larger impact on the percentage of damage in the sample size. Increasing the allowable damage will allow additional peanuts to meet the Standards and be shipped for human consumption. In addition, relaxing the damage allowance will allow more lots of peanuts to move without being remilled, helping to reduce handling costs.
Peanuts are also used for many different products, including outlets where cosmetic damage is not as important, such as peanut butter, where the manufacturers are willing to purchase lots with a higher percentage of damage. Most manufacturers are setting their own tolerance levels for damage based on the products they manufacture. By increasing the amount of allowable damage, more peanuts will be available to be manufactured for human consumption, helping to maximize shipments and improving returns. Therefore, this final rule relaxes the allowance for damage and defects to 3.5 percent for all unshelled peanuts, kernels, and for cleaned-inshell peanuts.
This rule will also make changes to the PLI requirements and the recordkeeping and reporting requirements under the Standards. In the Standards, the PLI requirements are used to help maintain the identity of peanuts throughout the handling process, thus maintaining the integrity of lots being shipped to human consumption outlets, lots that are subject to the reconditioning process, and lots that are disposed of in non-human consumption outlets. PLI also helps ensure that peanuts certified for human consumption meet the outgoing standards for grade and aflatoxin. In addition, the PLI requirements are a useful tool in product traceability and helping to ensure compliance with the Standards.
The reporting and recordkeeping requirements also play a role in ensuring compliance. Handlers and importers are required to maintain all relevant documentation on the disposition of inedible peanuts. The documentation maintained must be sufficient to document and substantiate the proper disposition of all peanut lots that do not meet grade or aflatoxin quality standards. Reports and records are used to track and document the disposition of peanuts and to substantiate handler and importer compliance with the Standards.
In 2009, the peanut industry began the process of completely restructuring its tracking and reporting systems under an industry-wide food safety system, utilizing industry experts as well as guidance from the Food and Drug Administration, the Grocery Manufacturers Association, and finished product manufacturers. The industry also decided to work toward meeting the Global Food Safety Initiative (GFSI) standards that were being mandated by many major food manufacturers. GFSI
The purpose of this effort was to reduce the need for multiple audits while providing ongoing assurance of compliance within the industry with food safety initiatives. Under these new industry procedures, all raw peanuts are lot coded, and there is a traceability system in place to track them throughout the handling process. Handlers currently trace all peanuts from the warehouse to final disposition, including edible, blanched, and oil stock. Further, lots are segregated throughout the handling process in order to maintain identity should there be a recall notice issued.
In reviewing the Standards, the APSA thought it is important to maintain PLI on all lots meeting outgoing requirements. This preserves the integrity of these lots and provides assurance to buyers that the peanuts have met all requirements, have not been commingled with lower grade peanuts, and are ready to be utilized for human consumption. In addition, all peanut manufacturers require the official grade and aflatoxin certificate before taking possession of the peanuts to confirm that the analytical and physical tests required by law have been conducted.
However, given the industry's new requirements for tracking and traceability, the APSA found the remaining PLI requirements in the Standards to be redundant and no longer necessary. When the Standards were implemented in 2002, the current industry traceability systems had not yet been developed, and PLI was an important tool in maintaining compliance. The new traceability systems are used by the industry to help maintain the identity of peanuts throughout the handling process, the same way PLI is used. These systems are also used to track peanuts that are to be reconditioned or disposed of in non-human consumption outlets, such as for seed or animal feed. The industry reports that each peanut handler has designed a traceability system that is specifically integrated into their operations, and the industry believes that these systems largely perform all the same functions as PLI. Further, these systems were also designed to meet the new demands under food safety requirements, such as the Food Safety and Modernization Act, and the food safety and handling requirements set by the manufacturers. The industry believes having to utilize PLI in addition to its own tracking systems requires additional time and recordkeeping to follow peanuts that already have documented traceability.
The APSA proposal, as approved by the Board, recommends revision to the Standards to reflect current industry traceability programs. The industry believes that these changes will reduce handling and inspection costs and help improve the efficiency of handling operations. Consequently, this final rule will add language to § 996.73 of the Standards to define the necessary requirements for an industry-based traceability system and will provide allowances for systems meeting these requirements to be used in place of PLI prior to inspection and certification. The existing PLI system will also remain in place as a requirement for any handler who does not have a system in place that meets the requirements for an industry-based traceability system and for any handler who uses PLI in conjunction with their own traceability system. However, PLI will still continue to be required for all peanuts meeting the outgoing standards.
This final rule will also revise the reporting and recordkeeping requirements under the Standards. All handlers and importers are currently required to submit to USDA a monthly report documenting their monthly farmers stock acquisitions. Under these changes, the requirement to submit this monthly report will be eliminated. The industry stated that the information contained within the form was already being submitted to USDA on a daily basis as part of the farmers stock inspection process. Further, industry representatives stated that this data is maintained as part of the traceability systems now in place. Therefore, the industry supported the removal of this requirement.
Additional changes were recommended to recognize the reporting and recordkeeping done by the industry to meet the tracking and traceability requirements now required of the industry for food safety initiatives. In addition to records relating to peanuts meeting the outgoing standards, handlers and importers are required to maintain all relevant documentation on the disposition of inedible peanuts as part of their food safety traceability requirements. Given the traceability and recordkeeping requirements recommended to be added to the Standards and the recordkeeping requirements demanded under food safety requirements, the industry questioned the continued need for USDA to have access to all such records under the Standards. Industry representatives stated that they no longer see the need for USDA to require regular access to records other than those pertaining to peanuts meeting the outgoing requirements. Consequently, pursuant to the Board-approved recommendation, this final rule will modify the reporting requirements to specify that USDA will be permitted to inspect any peanuts meeting outgoing standards and any and all records pertaining to peanuts meeting outgoing quality regulations. However, pursuant to the Act, the Secretary shall work to provide adequate safeguards regarding all quality concerns related to peanuts. Therefore, this change will not preclude USDA from having access to all materials and records necessary should there be a situation necessitating an investigation or review to ensure compliance. The documentation maintained must still be sufficient to document and substantiate the proper disposition of all peanuts failing grade or aflatoxin quality standards.
Additionally, USDA would like to clarify that under this modified reporting requirement, USDA will continue to have access to all materials and records regarding any and all peanuts originally intended for human consumption. This applies whether the peanuts meet outgoing quality requirements or not.
The APSA proposal as approved by the Board also recommended revising the Standards to clarify that handlers and importers are not producing a finished product and that the peanuts require further processing prior to human consumption. This includes amending the definition for peanuts in the Standards to indicate that the peanuts covered under the Standards are raw peanuts and intended for further processing by manufacturers prior to human consumption. The definitions for inshell and shelled peanuts will also be revised to reflect that the peanuts covered by the Standards are in their raw, natural state. The definition of peanuts will continue to provide that green peanuts, which are raw, for consumption as boiled peanuts are not subject to regulation under the Standards. However, these green peanuts are sold mostly by producers, not by handlers and importers, and make up a small share of the peanut market. The change to the definition for peanuts will also state that peanuts intended for wildlife are not subject to regulation under the Standards.
This change will also eliminate all references to roasting in the Standards to further clarify that handlers and importers are not producing a finished product. At one time, roasting was used to reduce levels of aflatoxin and was included in the Standards for that purpose. However, roasting is no longer used to treat aflatoxin. The Board supported these changes to reduce any confusion that handlers and importers under the Standards are delivering a finished product ready for human consumption.
Finally, this final rule will also make numerous other changes throughout the Standards to update language and to reflect current industry practices and changes. Such changes include a change to the crop year, eliminating language relating to the old quota system, and updating outdated information, such as incorrect addresses, titles, and other contact information. It will also remove the requirement that peanuts testing at or above 301 ppb of aflatoxin can only be disposed of through crushing or export, as cleaning technology has improved to the point that peanuts testing at or above this level may possibly be cleaned to meet the outgoing standards.
The proposed changes approved by the Board also included a recommendation to remove the lot size limit of 200,000 pounds on peanuts presented for outgoing inspection. However, the 200,000 pound limit is required by USDA and the inspection service to ensure an accurate sampling protocol. Therefore, the 200,000 pound lot limit will be maintained.
USDA is also adding an additional change under this final rule that will revise the requirements for imported peanuts under § 996.60(a). This change modifies how importers submit their entry information to USDA. This section currently references the “stamp and fax” entry process, which is being replaced by the International Trade Data System, a system that will automate the filing of import and export information. This change will revise this section to reflect the new electronic entry process.
The Board believes these changes will bring the Standards closer in line with current industry practices, make additional peanuts available for sale, help reduce costs, and make operations more efficient. These changes are consistent with the Standards and the Act.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened.
Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms, including handlers and importers, are defined as those having annual receipts of less than $7,500,000 (13 CFR 121.201).
There are approximately 7,500 peanut producers; 65 peanut handlers, operating approximately 70 shelling plants; and 25 importers subject to regulation under this peanut program.
An approximation of the number of peanut farms that could be considered small agricultural businesses under the SBA definition can be obtained from the 2012 Agricultural Census, which is the most recent information on the number of farms categorized by size. There were 3,066 peanut farms with annual agricultural sales valued at less than $500,000 in 2012, representing 47 percent of the total number of peanut farms in the U.S. (6,561). According to the National Agricultural Statistics Service (NASS), peanut production for the 2014 and 2015 crop years averaged 5.756 billion pounds. The average value of production for the two-year period was $1.088 billion. The average grower price over the two-year period was $0.25 per pound. Dividing the two-year average production value of $1.088 billion by the approximate number of peanut producers (7,500) results in an average revenue per producer of approximately $145,000, which is well below the SBA threshold for small producers. Based on information and reports received by USDA, more than 50 percent of handlers may be considered small entities. Further, the estimated value of peanuts imported into the United States in 2014 was approximately $64 million. Based on that number, the majority of importers would meet the SBA definition for small agricultural service firms. Consequently, a majority of handlers, importers and producers may be classified as small entities.
The current 10 custom blanchers, 4 custom remillers, 3 oil mill operators, and 1 USDA and 17 USDA-approved private chemical (aflatoxin) laboratories are subject to this rule to the extent that they must comply with reconditioning provisions under § 996.50 and reporting and recordkeeping requirements under § 996.71. These requirements are applied uniformly to these entities, whether large or small.
This final rule will revise the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards. This action will also make numerous other changes to the Standards to better reflect current industry practices and to revise outdated language. The Board believes these changes will make additional peanuts available for sale, help increase efficiencies, and reduce costs to the industry.
This final rule is issued under the Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States, as amended (7 CFR part 996), as established pursuant to Public Law 107-171, the Farm Security and Rural Investment Act of 2002.
It is not anticipated that this action will impose additional costs on handlers, producers, or importers, regardless of size. Rather, these changes should help the industry reduce costs by helping to increase efficiencies. The industry believes the requirement that they continue to use PLI in addition to its own internal traceability systems creates redundancy and additional costs. By recognizing its internal traceability programs as an alternative to PLI, this should improve efficiencies and reduce costs. In addition, this action should also make additional peanuts available for sale, helping to maximize shipments and improving industry returns.
This final rule is expected to benefit the industry. The effects of this rule are not expected to be disproportionately greater or less for small handlers, producers or importers than for larger entities.
USDA has considered alternatives to these changes. The Act requires USDA to consult with the Board on changes to the Standards. An alternative considered was to continue the Standards in their current form. However, the industry believes these changes will increase efficiencies, make additional peanuts available for sale, and help update the Standards. Therefore, because of the anticipated benefits of these changes, this alternative was rejected. USDA has met with the Board, which is representative of the industry, and has included nearly all of its recommendations in this final rule.
The Act specifies in § 1601(c)(2)(A) that the Standards established pursuant to it may be implemented without
AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
The Board's meetings were widely publicized throughout the peanut industry, and all interested persons were invited to attend and participate in Board deliberations on all issues. Like all Board meetings, the June 26, 2015, and the November 18, 2015, meetings were public meetings, and all entities, both large and small, were able to express views on these issues.
Section 1601 of the Act also provides that amendments to the Standards may be implemented without extending interested parties an opportunity to comment. However, due to the nature of the proposed changes, interested parties were provided with a 60-day comment period.
A proposed rule concerning this action was published in the
Fifteen comments were received during the comment period in response to the proposal. The commenters included growers, shellers, manufacturers, congressional representatives, and an interested consumer. Fourteen of the comments were in support of the proposed rule. One comment was in opposition to the proposed changes to the outgoing quality requirements. Most of the points made by the commenter in opposition were discussed at the public meetings on June 26, 2015, and November 18, 2015, prior to the Board's vote.
All 14 of the positive comments expressed support for finalizing the proposed rule as issued. Five of these comments referenced support of the proposal's recognition of modern business management, food safety progress and technological change. Two commenters noted the changes will better reflect current industry practices while revising outdated language and reducing regulatory burden on the industry. One comment asserted that the changes will eliminate waste and costs to the industry. Another expressed that under the change to the outgoing requirements, users of peanuts can still request the desired level of damage by specification in their contracts. One commenter stated that food safety will not be affected by these changes since the outgoing standards for aflatoxin are unchanged.
The one negative comment received was from a manufacturer and opposed the proposed changes to the outgoing quality requirements. Specifically, the comment opposed the changes that will merge the previously separate categories for damage and minor defects for unshelled peanuts and kernels into one overall allowance for damage and increases that allowance to 3.5 percent, stating that the current requirements for damage and defects aligned with their requirements.
The commenter expressed concerns that the changes to the outgoing quality standards may hinder their ability to control the type of peanut being supplied from shellers and could result in additional inspections and added costs. However, the modification to the outgoing standards will not alter the customer's ability to specify conformity regarding damage or defect. The manufacturer's contract with the supplier can still specify the types of damage and defect, thereby maintaining the desired transparency and ensuring the visual and sensory product quality required by the manufacturer. The Federal-State Inspection Service can certify peanuts at the damage level requested, so this change should not result in the need for additional inspections.
Further, peanut customer requirements can vary depending on the end use of the peanuts. This is why the Board recommended increasing the allowable damage under the Standards. Some segments of the peanut industry do not require the same threshold for damage and defect. The proposed changes will allow for additional peanuts to be utilized for manufacturing in segments of the industry where cosmetic damage to the peanut is not as important.
The proposed changes to the outgoing quality requirement are designed to help improve the efficiency of handling operations and make additional peanuts available for all customers within the peanut industry. This was discussed during the public Board meetings on June 26, 2015, and November 18, 2015, prior to the Board's vote. During the meetings, Board members discussed the implication of adjusting the damage level to 3.5 percent and noted that the customer can still request a more stringent level than the Standards require. In fact, some manufacturers may already require tighter specifications for damage than currently allowed.
The commenter was also concerned with how these changes may affect aflatoxin levels and that the changes may result in more lots failing as to aflatoxin. All peanuts for human consumption will still be chemically analyzed by a USDA laboratory or a USDA-approved laboratory and certified “negative” as to aflatoxin. The criteria for the outgoing standard regarding aflatoxin was not modified as part of the proposed changes and still requires a certificate of analysis indicating that the level of aflatoxin does not exceed 15 parts per billion.
Accordingly, no changes will be made to the rule as proposed, based on the comments received.
After consideration of all relevant matter presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Food grades and standards, Marketing agreements, Peanuts, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 996 is amended as follows:
7 U.S.C. 7958.
(a) * * *
(b) * * *
(2) Not more than 3.50 percent peanuts with damaged or defective kernels;
(a)
(b) * * *
(2) * * * Both Subsamples 1-AB and 1-CD shall be accompanied by a notice of sampling or grade certificate, signed by the inspector, containing, at least, identifying information as to the handler or importer, and the positive lot identification of the shelled peanuts.
(5) Handlers and importers may make arrangements for required inspection and certification by contacting the Inspection Service office closest to where the peanuts will be made available for sampling. For questions regarding inspection services, a list of Federal or Federal-State Inspection Service offices, or for further assistance, handlers and importers may contact: Specialty Crops Inspection Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Room 1536-S, (STOP 0240), Washington, DC, 20250-0240; Telephone: (202) 720-5870; Fax: (202) 720-0393.
(6) Handlers and importers may make arrangements for required chemical analysis for aflatoxin content at the nearest USDA or USDA-approved laboratory. For further information concerning chemical analysis and a list of laboratories authorized to conduct such analysis contact: Science and Technology Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0270, Washington, DC 20250-0270; Telephone (202) 690-0621; Fax (202) 720-4631.
The revisions read as follows:
(a) Lots of peanuts which have not been certified as meeting the requirements for disposition to human consumption outlets may be disposed for non-human consumption uses:
(b)(1) Sheller oil stock residuals shall be positive lot identified using red tags, identified using a traceability system as defined in § 996.73, or other methods acceptable to the Inspection Service, and may be disposed of domestically or to the export market in bulk or bags or other suitable containers. Disposition to crushing may be to approved crushers. However, sheller oil stock residuals may be moved from a handler's facility to another facility owned by the same handler or another handler without PLI so long as such handler maintains a satisfactory records system for traceability purposes as defined in § 996.73.
(e) Lots of shelled peanuts moved for remilling or blanching shall be positive lot identified and accompanied by valid grade inspection certificate,
(f) Residual peanuts resulting from remilling or blanching of peanuts shall be red tagged, identified using a traceability system as defined in § 996.73, or identified by other means acceptable to the Inspection Service, and returned directly to the handler for further disposition or, in the alternative, such residual peanuts shall be positive lot identified by the Inspection Service and shall be disposed of to handlers who are crushers, or to approved crushers,
The revision reads as follows:
(a) Prior to arrival of a foreign-produced peanut lot at a port-of-entry, the importer, or customs broker acting on behalf of the importer, shall submit information electronically to the United States Customs and Border Protection, which includes the following: The Customs Service entry number; the container number(s) or other identification of the lot(s); the volume of the peanuts in each lot being entered; the inland shipment destination where the lot will be made available for inspection; and a contact name or telephone number at the destination.
The revisions read as follows:
(a) Each handler and importer shall maintain a satisfactory records system for traceability purposes as defined in § 996.73.
(b) * * * USDA and USDA-approved laboratories shall file copies of all aflatoxin certificates completed by such laboratories with the Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1124 1st Street South, Winter Haven, Florida 33880; Telephone (863) 324-3375, Fax: (863) 291-8614, or other address as determined by USDA.
(a) For the purpose of checking and verifying reports kept by handlers and importers and the operation of handlers and importers under the provisions of this Part, the officers, employees or duly authorized agents of USDA shall have access to any premises where peanuts may be held at any time during reasonable business hours and shall be permitted to inspect any peanuts that meet outgoing quality regulations, so held by such handler or importer and any and all records of such handler with respect to the acquisition, holding, or disposition of all peanuts meeting outgoing quality regulations, which may be held or which may have been disposed by handler.
(b) Reports shall be maintained by the handler for nonconforming products to assure traceability throughout the supply chain. The traceability system must include documented records, which enable a full product history to be produced in a timely manner and must ensure product can be traced forward (raw material to distribution) and backwards from distribution to the warehouse feeding the shelling plant, and ensure that all associated tests and all relevant records have been completed. The traceability system shall include identification of all raw materials, process parameters (for specific lot), packaging and final disposition. The handler shall be able to identify the warehouse in which the peanuts were stored immediately prior to shelling. Traceability must be maintained throughout production runs with specific lot codes, and there shall be complete linkage from raw material receipt through final disposition.
The revisions read as follows:
(a) * * *
(3) Commingles failing quality peanuts with certified edible quality peanuts and ships the commingled lot for human consumption use without meeting outgoing quality regulations;
(5) Fails to maintain and provide access to records, pursuant to § 996.71, and the standards for traceability and nonconforming product disposition pursuant to § 996.73, on the reconditioning or disposition of peanuts acquired by such handler or importer; and on lots that meet outgoing quality standards; or
(b) Any peanut lot shipped which fails to meet the outgoing quality standards specified in § 996.31, and is not reconditioned to meet such standards, or is not disposed to non-human consumption outlets as specified in § 996.50, shall be reported by USDA to the Food and Drug Administration and listed on an Agricultural Marketing Service Web site.
The provisions of this part, as well as any amendments, shall apply to current crop year peanuts, subsequent crop year peanuts, and prior crop year peanuts not yet inspected, or failing peanut lots that have not met disposition standards, and shall continue in force and effect until modified, suspended, or terminated.
Federal Energy Regulatory Commission, Department of Energy.
Final rule.
The Federal Energy Regulatory Commission (Commission) is modifying the
This final rule will become effective October 5, 2016.
1. In this Final Rule, the Commission modifies the
2. As a result of this Final Rule, small generating facilities are required to not disconnect automatically or instantaneously from the system or equipment of the transmission provider and any affected systems for an under-frequency or over-frequency condition, or an under-voltage or over-voltage condition. Furthermore, the transmission provider must coordinate the small generating facility's protective equipment settings with any automatic load shedding program (
3. The
4. In Order No. 2006, the Commission explored whether voltage ride through requirements proposed for large wind generating facilities should apply to small generating facilities.
5. More recently, the Commission again addressed these requirements with regard to small generating facilities in Order No. 792.
6. The Commission declined to adopt this proposed revision in Order No. 792.
7. Since the Commission issued Order No. 792, IEEE has completed a partial revision of IEEE Standard 1547, which is IEEE Standard 1547a. IEEE is now in the process of fully revising IEEE Standard 1547. The partially revised standard, IEEE Standard 1547a, permits generating facilities to have wider trip settings compared with IEEE Standard 1547. These wider trip settings allow generating facilities to stay connected to the grid for greater frequency or voltage excursions facilitating their ability to ride through such excursions. IEEE Standard 1547a also permits—but does
8. Following the Commission's evaluation of the need for ride through requirements for small generating facilities in the Order Nos. 2006 and 792 rulemaking proceedings, the impact of small generating facilities on the grid has changed, and the amount has increased. For example, as the North American Electric Reliability Corporation (NERC) has noted in multiple reports, the mix of generation resources is changing and the high penetration of distributed energy resources will impact the reliability of the electric grid if sufficient care is not taken to mitigate potential adverse impacts.
9. On March 23, 2016, the Commission issued a Notice of Proposed Rulemaking that proposed to add new section 1.5.7 to the
10. In response to the NOPR, eleven entities submitted substantive comments, which generally support the Commission's proposal.
11. For the reasons discussed below, we adopt the NOPR proposal and require small generating facilities to ride through abnormal frequency and voltage events comparable to large generating facilities. We find that, given the changes to conditions since the Commission last evaluated whether to impose ride through requirements on small generating facilities, the revisions to the
12. The Commission acknowledges that some areas have a greater penetration of distributed resources than others at this time. Nevertheless, the Commission believes that the proposed reforms to the
13. In the NOPR, the Commission proposed to revise the
14. The substantive comments filed in response to the NOPR generally support the proposal to modify the
15. Idaho Power claims that if more small generation facilities connect to its system, without the proposed changes to the
16. The ISO/RTO Council recommends that the proposed required characteristics for small generating facilities should be demonstrated “as tested,” and that this should be specified in the
17. Some commenters request that the Commission delay implementation of the Final Rule. While EPRI does not believe that additional action is required for other existing interconnected small generating facilities, EPRI comments that additional reliability studies may be required if aggregate penetration levels increase sufficiently before the modifications to the
18. Trade Associations claim that the new ride through capability requirements are only possible through smart inverter technology, but point out that key associated specifications contained in the reference standards remain unapproved. Trade Associations explain that distribution feeders are often designed as radial feeders that depend on remote generation to quickly disconnect when the utility source is disconnected. According to Trade Associations, failure to do so may result in unintentional islands which create safety hazards for personnel and customers, as well as liability concerns. Trade Associations caution that directing small generation facilities to ride through disturbances may create islanding conditions and relaxed response to fault conditions.
19. Further, Trade Associations claim that more industry discussion is needed to ensure that small generators' interconnections meet the unique regional utility safety and reliability concerns before the proposed revisions to section 1.5.7 of the
20. Trade Associations also suggest that the Commission explore how changes made to the
21. As discussed above, we find the revisions to the
22. We recognize the work of the IEEE 1547 Working Group, but we determine that there is a pressing need to establish ride through capability requirements at this time because we expect a continuing increase in penetration of small generating facilities. The revisions to the
23. While Trade Associations point out that IEEE is revising IEEE Standard 1547, the standard does not currently require ride through capability. We are acting now to ensure that all affected jurisdictional small generating facilities will have the ride through capability, as allowed by IEEE Standard 1547a.
24. We are persuaded by the ISO/RTO Council's recommendation to add the “as tested” language to section 1.5.7 of the
25. We hereby adopt new section 1.5.7 of the
1.5.7 The Interconnection Customer shall ensure “frequency ride through” capability and “voltage ride through” capability of its Small Generating Facility. The Interconnection Customer shall enable these capabilities such that its Small Generating Facility shall not disconnect automatically or instantaneously from the system or equipment of the Transmission Provider and any Affected Systems for a defined under-frequency or over-frequency condition, or an under-voltage or over-voltage condition
26. We recognize the Trade Associations' concern about potential tension between ride through requirements and anti-islanding protection. Ensuring the safety of utility lineworkers is critically important, and an issue the Commission takes seriously. Based on our consideration of the record, we believe that the ride through requirements adopted herein are technically and safely achievable. In particular, we note that this Final Rule provides significant flexibility for transmission providers to account for potential safety and islanding concerns. For example, the transmission provider can determine specific ride through settings needed to address those concerns so long as those settings are consistent with Good Utility Practice and any standards and guidelines applied to other generating facilities on a comparable basis.
27. Furthermore, we note that islanding and personnel safety are not new issues resulting from this Final Rule; to the contrary, they will continue to be important concerns regardless of the reforms adopted in this Final Rule. Accordingly, we emphasize the importance of implementing ride through requirements through careful coordination between the interconnection customer and the transmission provider, as well as the utilization of appropriate safety procedures for utility personnel, particularly effective and thorough communication for lineworkers in the field, when performing remedial actions following a system disturbance. We support the continued efforts by industry to explore innovative ways to detect island conditions in order to mitigate the risk of unintentional islands.
28. In light of our goal to prevent undue discrimination, we seek to provide guidelines that will be applied to generating facilities on a comparable basis, while allowing for justified differences on a case by case basis. For example, if a transmission provider believes a particular facility has a higher risk of unintentional islanding due to specific conditions on that facility, the revisions to the
29. In the NOPR, the Commission proposed to avoid prescriptive frequency and voltage ride through requirements to allow for the development of appropriate system- specific standards, noting that the standards can be based on work developed by recognized standards settings bodies, such as IEEE.
30. Commenters request that the proposed rule contain explicit references to standards such as the Reliability Standards and IEEE and UL standards.
31. Commenters assert that specifying certain technical standards would be beneficial for consistent enforceability; specifically, some commenters suggest that the
32. SoCal Edison observes that the California Public Utilities Commission (CPUC) has established, through its retail Rule 21 tariff, smart inverter requirements for small generators interconnecting to the distribution systems of California's investor owned utilities, and low/high voltage ride through and low/high frequency ride through are part of the new required capabilities for small generators.
33. We are not persuaded by commenters' arguments for the need to reference specific technical standards and decline to incorporate by reference any specific standard into the
34. To accommodate the differences in voltage and frequency ride through capabilities inherent in the different generation technologies, we believe that requiring basic performance expectations without explicitly specifying the duration or voltage and frequency levels allows the flexibility to apply appropriate ride through settings with coordination and approval of the transmission operator. As EPRI and IEEE note, the ride through requirement framework in the draft IEEE Standard 1547 is being structured along “performance categories” that take into account the technological differences of various types of small generating facilities. Once finalized, IEEE Standard 1547 may be used as a technical guide to meet the requirements adopted herein. Until revisions to IEEE Standard 1547 are finalized, however, transmission providers and affected interconnection customers must coordinate appropriate alternative frequency and voltage ride through settings.
35. Furthermore, as a pragmatic matter, by setting minimum ride through capability requirements that are not tied to a specific standard, the requirements in section 1.5.7 of the
36. In response to PNM's clarification request, we clarify that the point of interconnection is the appropriate place to measure frequency and voltage to comply with the ride through requirements.
37. The Commission proposed to permit RTOs and ISOs to seek “independent entity variations” from the proposed revisions to the
38. Multiple commenters support the Commission's proposal to permit RTOs and ISOs to seek “independent entity variations” from the proposed revisions to the
39. Trade Associations request that the Commission also affirm the ability of transmission providers that are not members of RTOs or ISOs to seek variations from the
40. We adopt the NOPR proposal and permit ISOs and RTOs to seek “independent entity variations” from revisions to the
41. In addition, we clarify that we will also consider requests for “regional reliability variations,” provided that such requests are supported by references to regional Reliability Standards, explain why these regional Reliability Standards support the requested variation, and include the text of the referenced Reliability Standards.
42. Section 35.28(f)(1) of the Commission's regulations requires every public utility with a non-discriminatory open access transmission tariff OATT on file to also have an SGIA on file with the Commission.
43. We reiterate that the requirements of this Final Rule apply to all newly interconnecting small generating facilities that execute or request the unexecuted filing of an SGIA on or after the effective date of this Final Rule as well as existing interconnection customers that, pursuant to a new interconnection request, execute or request the unexecuted filing of a new or modified SGIA on or after the effective date.
44. We require each public utility transmission provider that has an SGIA within its OATT to submit a compliance filing within 65 days following publication in the
45. The Commission recently issued Order No. 827, a final rule in Docket No. RM16-1-000, directing transmission providers to submit SGIA revisions
46. As discussed above, we are not requiring changes to interconnection agreements that were executed prior to the effective date of this Final Rule. Instead, the requirements of this Final Rule apply to newly interconnecting small generating facilities that execute or request the unexecuted filing of an interconnection agreement on or after the effective date. The requirements of this Final Rule also apply to existing small generating facilities that, pursuant to a new interconnection request, require new or modified interconnection agreements that are executed or requested to be filed unexecuted on or after the effective date.
47. Some public utility transmission providers may have provisions in their existing SGIAs or other document(s) subject to the Commission's jurisdiction that the Commission has deemed to be consistent with or superior to the
48. We find that transmission providers that are not public utilities must adopt the requirements of this Final Rule as a condition of maintaining the status of their safe harbor tariff or otherwise satisfying the reciprocity requirement of Order No. 888.
49. The following collection of information contained in this Final Rule is subject to review by the Office of Management and Budget (OMB) regulations under section 3507(d) of the Paperwork Reduction Act of 1995.
50. The reforms adopted in this Final Rule revise the Commission's
51. While the Commission expects the revisions adopted in this Final Rule will provide significant benefits, the Commission understands that implementation would entail some costs. The Commission solicited comments on the accuracy of provided burden and cost estimates and any suggested methods for minimizing the respondents' burdens. The Commission did not receive any comments concerning its burden or cost estimates. As explained above, we will require the compliance filings for this Final Rule and Order No. 827 to be filed in one combined filing. We expect that this will reduce the burden on public utility transmission providers at the time the Commission gives notice of the extension of the compliance date and requirement to combine compliance filings.
52. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], email:
53. Comments on the collection of information and the associated burden estimate in the Final Rule should be sent to the Commission in this docket and may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission], at the following email address:
54. The Regulatory Flexibility Act of 1980 (RFA)
55. The Small Business Administration (SBA) revised its size standards (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees, including affiliates. Under SBA's standards, some transmission owners will fall under the following category and associated size threshold: Electric bulk power transmission and control, at 500 employees.
56. The Commission estimates that the total number of public utility transmission providers that would have to modify the SGIAs within their currently effective OATTs is 118. Of these, the Commission estimates that approximately 43% are small entities. The Commission estimates the average cost to each of these entities will be minimal, requiring on average 7.5 hours or $558.75. According to SBA guidance, the determination of significance of impact “should be seen as relative to the size of the business, the size of the competitor's business, and the impact the regulation has on larger competitors.”
57. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
58. Therefore, this Final Rule falls within the categorical exemptions provided in the Commission's regulations, and as a result neither an Environmental Impact Statement nor an Environmental Assessment is required.
59. In addition to publishing the full text of this document in the
60. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field.
61. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
62. The Final Rule is effective October 5, 2016. However, as noted above, the requirements of this Final Rule will apply only to all newly interconnecting small generating facilities that execute or request the unexecuted filing of an SGIA on or after the effective date of this Final Rule as well as existing interconnection customers that, pursuant to a new interconnection request, execute or request the unexecuted filing of a new or modified SGIA on or after the effective date. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this Final Rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Final Rule is being submitted to the Senate, House, Government Accountability Office, and Small Business Administration.
By the Commission.
The following Attachment will not appear in the Code of Federal Regulations.
In addition, Entergy Services, Inc. submitted non-substantive comments.
Employment and Training Administration, Labor.
Final rule.
The Employment and Training Administration (ETA) of the U.S. Department of Labor (Department) is issuing this final rule to establish, for State Unemployment Compensation (UC) program purposes, occupations that regularly conduct drug testing. These regulations implement the Middle Class Tax Relief and Job Creation Act of 2012 (the Act) amendments to the Social Security Act (SSA), permitting States to enact legislation that would allow State UC agencies to conduct drug testing on UC applicants for whom suitable work (as defined under the State law) is available only in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor (Secretary)). States may deny UC to an applicant who tests positive for drug use under these circumstances. The Secretary is required under the SSA to issue regulations determining those occupations that regularly conduct drug testing.
Suzanne Simonetta, Office of Unemployment Insurance, ETA, U.S. Department of Labor, 200 Constitution Avenue NW., Room S-4524, Washington, DC 20210; telephone: (202) 693-3225 (this is not a toll-free number); email:
On October 9, 2014, The Department published a Notice of Proposed Rulemaking (NPRM) concerning occupations that regularly conduct drug testing at 79 FR 61013. The Department invited comments through December 8, 2014.
On February 22, 2012, President Obama signed the Act, Public Law 112-96. Title II of the Act amended section 303, SSA, to add a new subsection (l) permitting States to drug test UC applicants as a condition of UC eligibility under two circumstances. The first circumstance is if the applicant was terminated from employment with the applicant's most recent employer because of the unlawful use of a controlled substance. (Section 303(l)(1)(A)(i), SSA.) The second circumstance is if the only available suitable work (as defined in the law of the State conducting the drug testing) for an individual is in an occupation that regularly conducts drug testing (as determined in regulations by the Secretary). If an applicant who is tested for drug use under either circumstance tests positive, the State may deny UC to
• An “applicant” means an individual who files an initial claim for UC.
• “Controlled substance” is defined by reference to the definition of the term in Section 102 of the Controlled Substances Act. (This definition is in the Act.)
• “Suitable work” means suitable work as defined under the UC law of the State against which the claim is filed. It must be the same definition that the State otherwise uses for determining UC eligibility based on seeking work or refusal of work for an initial applicant for UC.
• Occupation means a position or class of positions.
• “Unemployment compensation” is defined as “cash benefits payable to an individual with respect to their unemployment under the State law.” This definition derives from the definition found in Federal UC law at Section 3306(h), FUTA.
The Department invited comments through December 8, 2014. This final rule defines those occupations that regularly conduct drug testing as required by section 303(l)(1)(A)(ii), SSA. The Department, separately from this rulemaking, issued guidance (Unemployment Insurance Program Letter (UIPL) No. 1-15) to States to address other issues related to the implementation of drug testing under 303(l), SSA.
The Department received sixteen (16) comments (by letter or through the Federal e-Rulemaking Portal) by the close of the comment period. Ten (10) of the comments were from individuals; one was from an employer advocacy group; one was from an industry association; one was from a worker advocacy group; and three (3) were from governmental officials or committees. The Department considered all timely comments and included them in the rulemaking record. There were no late comments.
These comments are discussed below in the Discussion of Comments. We address only those comments addressing the scope and purpose of the rule, the identification of occupations that regularly conduct drug testing. Therefore, comments received concerning the Department's previously issued guidance about drug testing in UIPL No. 1-15; comments supporting or opposing drug testing in general; and comments about drug testing procedures, the efficacy of drug tests, and the cost of drug tests, are not addressed as these issues fall outside the scope of the statutory requirement that is the basis for this regulation. We made one change, discussed below, in response to the comments.
A number of commenters opposed the limitation on the list of occupations requiring drug testing. Three commenters wrote that limiting the list of occupations requiring drug testing to those identified in Federal or State laws that were in effect on the date of publication of the NPRM (October 9, 2014) was not appropriate. Of those, one wrote it was uncertain if future amendments to the Federal regulations would incorporate future State law enactments mandating testing. One wrote that States would not be given sufficient time to enact legislation to add any occupations to the list already established by Federal or State law, and the public interest would be served by a broader interpretation of “regularly conducting drug testing.” One wrote it was an unnecessary obstacle to States using drug screening and testing to improve the chances that unemployed workers are ready to return to work.
One commenter wrote that the limitation was appropriate in order to provide the ability to assess the cost effectiveness of implementing drug testing in the UC program and that to do otherwise would circumvent the intent of Congress to limit authority to drug test to a small pool of workers for whom, because of their job requirements, drug testing is directly related to continued employment. The commenter asserted it was not the intent of Congress to cover a more expansive segment of the workforce, such as those subject to pre-employment screening.
The Department agrees with the commenters that the rule should not limit the list of occupations requiring drug testing, set forth in the NPRM, to those identified in specified Federal laws or those State laws that were in effect on the date of publication of the NPRM; thus, this provision is revised in the final rule to broaden its applicability as requested by commenters. In a dynamic economy, occupations change over time, sometimes rapidly, and new occupations are created, and it is important that this rule contain the flexibility necessary to allow States and the Federal government to adapt to those changes. Thus, the regulation has been expanded to encompass any Federal or State law requiring drug testing regardless of when enacted. Specifically, section 620.3(h) has been revised to specify that occupations that regularly conduct drug testing include any “occupation specifically identified in a State or Federal law as requiring an employee to be tested for controlled substances.” In recognition of the fact that new federal laws may be enacted that may require drug testing for other occupations, and that those occupations may not necessarily be included in § 620.3(a)-(g), the Department added “Federal law” to § 620.3(h). This additional change ensures the final rule is consistent with the policy change being made in response to the comments. Additionally, the final rule eliminates the reference to dates where the proposed rule referenced State law and the specified Federal regulations in § 620.3(a)-(g). The Department will monitor changes in Federal law that affect the definition of “occupations” for which drug testing is required and inform States of any changes through guidance.
There is no evidence of Congressional intent for the legislation to permit testing on any basis other than the plain language of the statute,
One commenter wrote that the proposed rule in Section 620.4(a), that drug testing is permitted only of an applicant, and not of an individual filing a continued claim for unemployment compensation after initially being determined eligible, would unduly limit drug testing to only the period after an applicant files an initial claim and before the applicant files a continued claim for unemployment compensation.
The plain language of Section 303(l), SSA, limits permissible drug testing to applicants for UC. “Applicants” are individuals who have submitted an initial application for UC. Once individuals have been determined eligible to receive UC, they are no longer applicants for UC. The act of certifying that certain conditions are met to maintain eligibility is different than making an application for UC benefits. This is illustrated throughout Title III, SSA. Section 303(h)(3)(B), SSA,
Two commenters wrote that the rule arbitrarily narrows the definition of “occupations that regularly test for drugs” so that the potential number of applicants affected is negligible. They also noted that businesses regularly conduct drug testing in occupations without Federal or State mandate. For this reason, they believe the definition “occupations that regularly conduct drug testing” should include occupations for which employers already conduct drug testing outside those mandated by State or Federal law.
Section 303(l)(1)(A)(ii), SSA, requires the Secretary to identify those “occupations,” not employers, that regularly conduct drug testing. As explained in the NPRM, whether an occupation is subject to “regular” drug testing in private employment was not chosen as the standard here because it would be very difficult to implement in a consistent manner. Drug testing in occupations where it is not required by law is not consistent across employers, across industries, across the States, or over time; thus, we are unable to reliably and consistently determine which occupations require “regular” drug testing where not required by law. Even if certain employers do conduct drug testing for certain occupations when permitted to do so, that is not sufficient to show that those occupations are subject to regular drug testing because a significant number of employers may not drug test individuals working in those occupations. In addition, those employers who conduct drug testing when they are not required by law to do so do not necessarily limit the testing to applicants or employees working in a specific occupation. The determination by an employer to drug-test all of its employees is not a determination that all of the occupations in which its employees fall are occupations for which drug testing is appropriate, under the requirements of this rule, but rather a determination in keeping with that employer's beliefs about its business needs that drug testing is appropriate for all of its employees.
The final rule will permit States to require drug testing for UC eligibility for occupations that are subjected under State law to drug testing after the date of the NPRM publication, which ensures that there is flexibility for States to require drug testing for other occupations, while still providing predictability and consistency in identifying in this final rule what occupations are “regularly” drug tested. Thus, the Department has not changed the rule to address this concern.
One commenter wrote that the proposed rules would impose an unnecessary burden on the State agency to determine whether “suitable work” in a specific occupation is available in the local labor market.
The comment appears to misunderstand the proposed rule, which requires only that a State use the same definition of “suitable work” for UC drug testing as otherwise used in State UC law. The rule does not use the term “local labor market” when addressing suitable work. State UC agencies routinely make eligibility determinations about availability for work, search for work, and refusal of offers of suitable work. Whether work is available in the local labor market for UC claimants is one criterion for determining what constitutes “suitable” work under State UC law in some States, but this rule does not require it. For drug testing, section 303(l)(1)(A)(ii), SSA, provides, as one of the two permissible reasons for drug testing as a condition for the receipt of UC, that the applicant “is an individual for whom suitable work (as defined under the State law) is only available in an occupation that regularly conducts drug testing . . . ” [Emphasis added.] Thus, the NPRM required that drug testing is permitted only if the applicant's only suitable work requires it as a condition of employment. Because the rule's definition of “suitable work” allows the States to apply their own current laws, the definition of suitable work in the proposed rule would not impose any burden on States, and the Department has not changed the definition in the final rule.
One commenter wrote that the proposed rule, by limiting the scope of permissible drug testing, contradicts Congressional intent and the practices of many American businesses and the best interests of American workers.
The Department drafted the NPRM to be consistent with the language of the statute. The scope of drug testing contemplated in the NPRM is consistent with the statutory language; there is no evidence of Congressional intent in the legislative history which would require it to be interpreted more broadly than the Department interprets it in this regulation. Therefore, the Department declines to expand the scope of drug testing in this rule.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. For a “significant regulatory action,” E.O. 12866 asks agencies to describe the need for the regulatory action and explain how the regulatory action will meet that need, as well as assess the costs and benefits of the regulation.
However, the Department has determined that this final rule is not an economically significant rulemaking within the definition of E.O. 12866 because it is not an action that is likely to result in the following: An annual
There are limited data on which to base estimates of the cost associated with establishing a testing program. Only one of the two States that have enacted a conforming drug testing law issued a fiscal note. That State is Texas, which estimated that the 5-year cost of administering the program would be $1,175,954. This includes both one-time technology personnel services for the first year to program the State UI computer system and ongoing administrative costs for personnel. The Texas analysis estimated a potential savings to the Unemployment Trust Fund of $13,700,580 over the 5-year period, resulting in a net savings of approximately $12.5 million. The Department believes it would be inappropriate to extrapolate the Texas analysis to all States in part because of differences in the Texas law and the requirements in this final rule. The Department has included this information about Texas for illustrative purposes only and emphasizes that by doing so, it is not validating the methodology or assumptions in the Texas analysis. Under the rule, States are prohibited from testing applicants for unemployment compensation who do not meet the narrow criteria established in the law. The Department requested that interested stakeholders with data on the costs of establishing a state-wide testing program; the number of applicants for unemployment compensation that fit the narrow criteria established in the law; and estimates of the number of individuals that would subsequently be denied unemployment compensation due to a failed drug test submit it during the comment period. We received no comments that provided the requested information.
In the absence of data, the Department is unable to quantify the administrative costs States will incur if they choose to implement drug testing under this rule. States may need to find funding to implement a conforming drug testing program for unemployment compensation applicants. No additional funding has been appropriated for this purpose and current Federal funding for the administration of State unemployment compensation programs may be insufficient to support the additional costs of establishing and operating a drug testing program. States will need to fund the cost of the drug tests, staff costs for administration of the drug testing function, and technology costs to track drug testing outcomes. States will incur ramp up costs that will include implementing business processes necessary to determine whether an applicant is one for whom drug testing is permissible under the law; developing a process to refer and track applicants referred for drug testing; and the costs of testing that meets the standards required by the Secretary of Labor. States will also have to factor in increased costs of adjudication and appeals of both the determination of applicability of the drug testing to the individual and of the resulting determinations of benefit eligibility based on the test results.
The benefits of the rule are equally hard to determine. As discussed above, because permissible drug testing is limited under the statute and this rule, the Department of Labor believes that the provisions will impact a very limited number of applicants for unemployment compensation benefits. Only one State has estimated savings from a drug testing program in a fiscal note and the Department cannot and should not extrapolate results from those estimates.
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
A Federal agency may not conduct or sponsor a collection of information unless it is approved by OMB under the PRA, and displays a currently valid OMB control number, and the public is not required to respond to a collection of information unless it displays a currently valid OMB control number. Also, notwithstanding any other provisions of law, no person shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number (44 U.S.C. 3512).
The Department has determined that this final rule does not contain a “collection of information,” as the term is defined.
Section 6 of Executive Order 13132 requires Federal agencies to consult with State entities when a regulation or policy may have a substantial direct effect on the States or the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government, within the meaning of the Executive Order. Section 3(b) of the Executive Order further provides that Federal agencies must implement regulations that have a substantial direct effect only if statutory authority permits the regulation and it is of national significance.
This final rule does not have a substantial direct effect on the States or the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of Government, within the meaning of the Executive Order. This is because drug testing authorized by the regulation is voluntary on the part of the State, not required.
This regulatory action has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995 (the Reform Act). Under the Reform Act, a Federal agency must determine whether a regulation proposes a Federal mandate that would result in the increased expenditures by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any single year. The Department has determined that since States have an option of drug testing UC applicants and can elect not to do so, this final rule does not include any Federal mandate that could result in increased expenditure by State, local, and Tribal governments. Drug testing under this rule is purely voluntary, so that any increased cost to the States is not the result of a Federal mandate. Accordingly, it is unnecessary for the
The Department drafted this final rule in plain language.
The Department certifies that this final rule has been assessed according to section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681) for its effect on family well-being. The Department certifies that this final rule does not adversely impact family well-being as discussed under section 654 of the Treasury and General Government Appropriations Act of 1999.
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603(a) requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis which will describe the impact of the final rule on small entities. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed or final rulemaking is not expected to have a significant economic impact on a substantial number of small entities. This final rule does not affect small entities as defined in the RFA. Therefore, the rule will not have a significant economic impact on a substantial number of these small entities. The Department has certified this to the Chief Counsel for Advocacy, Small Business Administration, pursuant to the Regulatory Flexibility Act.
Unemployment compensation.
For the reasons stated in the preamble, the Department amends 20 CFR chapter V by adding part 620 to read as follows:
42 U.S.C. 1302(a); 42 U.S.C. 503(l)(1)(ii)
The regulations in this part implement section 303(l) of the Social Security Act (SSA) (42 U.S.C. 503(l)). Section 303(l), SSA, permits States to enact legislation to provide for the State-conducted testing of an unemployment compensation applicant for the unlawful use of controlled substances, as a condition of unemployment compensation eligibility, if the applicant was discharged for unlawful use of controlled substances by his or her most recent employer, or if suitable work (as defined under the State unemployment compensation law) is only available in an occupation for which drug testing is regularly conducted (as determined under this part 620). Section 303(l)(1)(A)(ii), SSA, requires the Secretary of Labor to issue regulations determining the occupations that regularly conduct drug testing. These regulations are limited to that requirement.
As used in this part—
Occupations that regularly conduct drug testing, for purposes of § 620.4, are:
(a) An occupation that requires the employee to carry a firearm;
(b) An occupation identified in 14 CFR 120.105 by the Federal Aviation Administration, in which the employee must be tested (Aviation flight crew members and air traffic controllers);
(c) An occupation identified in 49 CFR 382.103 by the Federal Motor Carrier Safety Administration, in which the employee must be tested (Commercial drivers);
(d) An occupation identified in 49 CFR 219.3 by the Federal Railroad Administration, in which the employee must be tested (Railroad operating crew members);
(e) An occupation identified in 49 CFR 655.3 by the Federal Transit Administration, in which the employee must be tested (Public transportation operators);
(f) An occupation identified in 49 CFR 199.2 by the Pipeline and Hazardous Materials Safety Administration, in which the employee must be tested (Pipeline operation and maintenance crew members);
(g) An occupation identified in 46 CFR 16.201 by the United States Coast Guard, in which the employee must be tested (Crewmembers and maritime credential holders on a commercial vessel);
(h) An occupation specifically identified in a State or Federal law as requiring an employee to be tested for controlled substances.
(a) States may conduct a drug test on an unemployment compensation applicant, as defined in § 620.2, for the unlawful use of controlled substances, as defined in § 620.2, as a condition of eligibility for unemployment compensation if the individual is one
(b) A State conducting drug testing as a condition of unemployment compensation eligibility as provided in paragraph (a) of this section may apply drug testing only to the occupations listed under § 620.3, but is not required to apply drug testing to any of them.
(c) State standards governing drug testing of UC applicants must be in accordance with guidance, in the form of program letters or other issuances, issued by the Department of Labor.
(a)
(b)
(1) Paragraph (b) of 20 CFR 601.5, pertaining to informal discussions with the Department of Labor to resolve conformity and substantial compliance issues, and
(2) Paragraph (d) of 20 CFR 601.5, pertaining to the Secretary of Labor's hearing and decision on conformity and substantial compliance.
(c)
Food and Drug Administration, HHS.
Final rule; extension of compliance date.
The Food and Drug Administration (FDA or we) is extending the compliance date for certain requirements in the final rule requiring disclosure of calorie declarations for food sold from certain vending machines. The final rule appeared in the
April Kates, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2371, email:
In the
The final rule also specifies how calories must be declared. In brief,
• Vending machine operators do not have to declare calorie information for a food if a prospective purchaser can view certain calorie information on the front of the package, in the Nutrition Facts label on the food, or in a reproduction of the Nutrition Facts label on the food subject to certain requirements, or if the vending machine operator does not own or operate 20 or more vending machines.
• Calorie declarations must be clear and conspicuous and placed prominently, and may be placed on a sign in, on, or adjacent to the vending machine, so long as the sign is in close proximity to the article of food or selection button.
• The final rule establishes type size, color, and contrast requirements for calorie declarations in or on the vending machines, and for calorie declarations on signs adjacent to the vending machines.
• The final rule establishes requirements for calorie declarations on electronic vending machines, those vending machines with only pictures or names of the food items, and those vending machines with few choices (
The final rule also requires vending machine operator contact information to be displayed for enforcement purposes.
The final rule implements provisions of section 403(q)(5)(H) of the Federal
In the preamble to the final rule (79 FR 71259 at 71282 through 71283), we stated that all covered vending machine operators must come into compliance with the rule's requirements no later than December 1, 2016.
Since we published the final rule in the
With respect to FOP labeling, § 101.8(b)(2), states that articles of food sold from a vending machine are not “covered vending machine food” if the prospective purchaser can otherwise view visible nutrition information, including, at a minimum the total number of calories for the article of food as sold at the point of purchase. The visible nutrition information must appear on the food label itself, be clear and conspicuous and able to be easily read on the article of food while in the vending machine, and be in a type size at least 50 percent of the size of the largest printed matter on the label and with sufficient color and contrasting background to other print on the label to permit the perspective purchaser to clearly distinguish the information.
In the preamble to the final rule (79 FR 71259 at 71269 (see comment 16 and our response)), we discussed how FOP labeling could be a way to provide visible nutrition information for articles of food that are sold from a vending machine that are not “covered vending machine food” as interpreted by § 101.8(c). We also noted how some comments felt that the rule's type size requirement was too large, whereas others stated that the type size would be too small (79 FR 71259 at 71269). We explained that specifying the minimum type size for calorie information on vending machine food labels will provide greater clarity for both compliance and enforcement (id.).
Since the publication of the final rule, several trade associations indicated that the type size requirement would make the calorie declaration very large on some products and would make label redesign difficult and/or not practical. They noted the existence of voluntary FOP labeling programs whereby calorie information is presented in a FOP type size that ranges from 100 to 150 percent of the size of the “net quantity of contents” statement on the principal display panel. They also asked us to align the compliance date with that for the Nutrition Facts labeling rule (81 FR 33742, May 27, 2016) so that food companies can “make all changes to their food labels, including adding FOP calorie information, at the same time” (see Ref. 2). The compliance date for the Nutrition Facts label rule is July 26, 2018, for manufacturers with $10 million or more in annual food sales.
Consequently, with respect to § 101.8(b)(2), we have decided to extend the compliance date for certain food products sold from a glass-front vending machine that allow prospective purchasers to view packaged foods offered for sale. Specifically, if the food is:
• Sold from a glass-front vending machine that allows prospective purchasers to view packaged foods offered for sale;
• not a covered vending machine food within § 101.8(b)(2); and
• the label for such packaged foods provides front-of-package calorie disclosures that complies with all aspects of the final vending machine labeling rule except that the disclosure is not 50 percent of the size of the largest print on the label,
With respect to providing calorie information for gums, mints, and roll candy, our regulations, at § 101.8(c), establishes requirements for calorie labeling for certain food sold from vending machines. Under § 101.8(c)(2)(i)(C), the calorie declaration for covered vending machine food must include the total calories present in the packaged food, regardless of whether the packaged food contains a single serving or multiple servings. Under § 101.8(c)(2)(ii)(A), the calorie declarations for covered vending machine food must be clear and conspicuous and placed prominently on a sign in close proximity to the article of food or selection button so long as the calorie declaration is visible at the same time as the food, its name, price, selection button, or selection number is visible.
Several trade associations have disagreed with § 101.8(c)(2) insofar as it would apply to gums, mints, and roll candy. The trade associations contend that gums, mints, and roll candy suitable for vending machines are not typically amenable to FOP labeling due to the limited size of the principal display panel, and as a result, there are few options for compliance for these products. They also describe that in glass-front vending machines, these items are often placed together at the bottom of the machine with limited space for signage. In addition, the trade associations have asserted that providing calories declarations “per serving” for these items is preferable to providing calories “per container”, because consumers typically do not consume the entire packaged product at one time, and providing calorie declarations on a “per serving” basis would be consistent with our serving size requirements at 21 CFR 101.9. The trade associations also explained that these items typically contain insignificant amounts of all nutrients and are otherwise exempt from packaged food nutrition labeling, and that providing a sign with a range of 0 to 25 calories “per serving” for these items is sufficient for consumers to make informed choices (Ref. 1). Based on these distinct challenges, the trade associations also suggested that we amend § 101.8(c)(2) by adding a new paragraph that would, in effect, provide an exception for gums, mints, and roll candies that would allow the use of a range of calories (such as “25 calories or
• Contains at least three servings per package;
• has a “reference amount customarily consumed” (the portion size based on the amount the average person is likely to eat at one time) of 5 grams or less; and
• contains 25 calories or less per serving.
We addressed a similar issue in the preamble to the final rule (see 79 FR 71259 at 71276 through 71277 (see comment 24 and our response)) and explained why the calorie declaration requirement applies to the entire package rather than to a serving in the package. We disagree with the trade associations' suggestion that the final vending machine rule's serving size requirement should be consistent with that in our serving size rule. The vending machine rule applies to certain vending machine operators, whereas the serving size rule applies to food manufacturers. The statutory authority behind each regulation also differs; the vending machine label requirement is found in section 403(q)(5)(H) of the FD&C Act, which requires, generally, that food sold in certain vending machines disclose the number of calories contained in food, whereas section 403(q)(1)(A)(i) of the FD&C Act requires, with certain exceptions, that food that is intended for human consumption and offered for sale bear nutrition information that provides a serving size that reflects the amount of food customarily consumed and is expressed in a common household measure that is appropriate to the food. Section 2(b)(1)(B) of the Nutrition Labeling and Education Act further requires the Secretary of Health and Human Services to issue regulations to establish standards to define serving size. Nevertheless, we note that, in the preamble to the final vending machine rule, we said we would allow, in addition to the total calorie declaration for the food as vended, the voluntary declaration of calories per serving for covered vending machine foods (see 79 FR 71259 at 71277). The voluntary declaration of calories per serving, in addition to declaration of calories per container (required by § 101.8(c)(2)), should accommodate the trade associations' desire to disclose the number of calories per serving.
However, we also are mindful that the gums, mints, and roll candies mentioned by the trade associations tend to be sold in small packages that do not lend themselves to FOP labeling and often are located or placed in a small space in glass-front vending machines; the small space may limit the size of any sign(s) that would disclose calorie information for each gum, mint, or roll candy. For example, we are aware that some glass-front vending machines may have trays that are different sizes; the tray width for bags of potato chips is larger than the tray width for a roll of mints or hard candies or for a small package of gum. The smaller tray size for gums, mints, and roll candy may make it difficult to add information, inside the vending machine, beyond the product's price and selection number. Therefore, we are extending the compliance date for § 101.8(c)(2) to July 26, 2018, so that we may consider this issue further. This extension of the compliance date is limited to:
• Gums, mints, and roll candy sold in packages that are too small to bear FOP labeling and where the gums, mints, and roll candy are located in a small space within a glass-front vending machine that allows prospective purchasers to view packaged foods offered for sale;
• the space within the glass-front vending machine holding the gum, mints, and roll candy is so small such that it is not practicable to provide calorie information under each gum, mint, or roll candy; and
• the glass-front vending machine also does not or is not capable of providing calorie information electronically.
This limited change in the compliance date for § 101.8(c)(2) will give us time to consider issues relating to signage and vending machine design and give vending machine operators some flexibility in their disclosure of calorie information for gums, mints, and roll candies in small packages. In the interim, so consumers can make informed choices, we encourage vending machine operators to provide calorie information through a sign in close proximity to the gums, mints, and roll candy inside the vending machine that states the gums, mints, and roll candies provide “X” calories or less/serving, where X represents the value of the largest number of calories per serving for the gums, mints, and roll candies. We emphasize that this extension does not extend to other products in glass-front vending machines or glass-front vending machines that are capable of providing information electronically, nor does it extend to other types of vending machines. We also emphasize that the limited compliance date extension for § 101.8(c)(2) is intended to give vending machine operators more flexibility in providing calorie information for gums, mints, and roll candy in glass-front vending machines where those gums, mints, and roll candy are located or placed in a small space such that it is not practicable to provide calorie information under each gum, mint, or roll candy. Our final rule already gives vending machine operators other ways to comply with the calorie disclosure requirement; for example, vending machine operators can provide calorie declarations on a sign adjacent to the vending machine (see § 101.8(c)(2)(ii)(C)).
We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all 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, and other advantages; distributive impacts; and equity). We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of this final rule (Ref. 3). We believe that this final rule is not a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule changes the compliance date for § 101.8(b)(2) and (c)(2), under the limited circumstances described in this document, from December 1, 2016, to July 26, 2018, we certify that the final rule will not have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
The following references are on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at
Office of the Secretary, Office of Natural Resources Revenue, Interior.
Final rule.
This rule amends the Office of Natural Resources Revenue (ONRR) civil penalty regulations by expanding the regulations to all Federal mineral leases onshore and on the Outer Continental Shelf (OCS), to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS; incorporating the civil penalty inflation adjustments pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act); clarifying and simplifying existing regulations for issuing a Notice of Noncompliance (NONC), Failure to Correct Civil Penalty Notice (FCCP), and Immediate Liability Civil Penalty Notice (ILCP); and providing notice that ONRR will post matrices for civil penalty assessments on its Web site.
For comments or questions on procedural issues, contact Armand Southall, Regulatory Specialist, by telephone at (303) 231-3221 or email to
ONRR is amending its civil penalty regulations.
On May 13, 1999, the Department of the Interior (Department) published a final rule (64 FR 26240) in the
On May 19, 2010, the Secretary of the Department (Secretary) reassigned MMS's responsibilities to three separate organizations. As part of this reorganization, the Secretary renamed MMS's MRM to ONRR and transferred it to the Assistant Secretary of Policy, Management and Budget. This change required the reorganization of title 30 of the
On May 20, 2014, ONRR published a Notice of Proposed Rulemaking (79 FR 28862) to amend ONRR's civil penalty regulations. In the preamble of the proposed rule, ONRR invited comments on all aspects of the proposed rule, including (1) the amount of the proposed processing fee for a hearing request, payment by Electronic Funds Transfer, and the form of identification to include with the fee; (2) the effect that the proposed processing fee could have on the filing of hearing requests; (3) the procedure to allow a motion for summary decision to be filed at any time after the case is referred to the Departmental Cases Hearings Division (DCHD), including before discovery commences; (4) whether industry should have the burden of showing by a preponderance of the evidence that it is not liable or that the penalty amount should be reduced; (5) whether the accrual of a penalty during the hearing process could be stayed; and (6) the definition of the term “
The proposed rulemaking provided for a 60-day comment period, which ended on July 21, 2014. During the public comment period, ONRR received 19 written comments: 11 responses from members of industry, 7 responses from industry trade groups or associations, and 1 response from the Jicarilla Apache Nation.
ONRR has carefully considered all of the public comments that we received during the rulemaking process. We hereby adopt final regulations governing the application, assessment, and issuance of and request for hearing on a NONC, FCCP, and ILCP. These regulations will apply prospectively to a NONC, FCCP or ILCP issued on or after the effective date that we specify in the
This final rule reflects revisions to the proposed rule. Also, consistent with the proposed rule, it amends the current
The majority of commenters expressed opposition to the proposed rule. The general comments fall into two categories: (1) The proposed rule is at odds with the FOGRMA civil penalty hierarchy, and (2) the proposed rule denies due process.
Additionally, industry comments that the proposed 30 CFR 1241.3 and the preamble contain undefined “critical operative terms,” resulting in no guidance for a lessee. For example, industry contends that the proposed rule expands the scope of “
Industry asserts that FOGRMA uses the term “
In
The proposed regulation did not explicitly define what constitutes “substantially the same” violation. For clarity the term “
The False Claims Act defines “
Though FOGRMA does not define the term “
Industry also commented that our proposed rule would improperly create criminal exposure for an individual who does not have the requisite “mens rea” for criminal conduct. The Supreme Court considered a similar argument made in
The proposed 30 CFR 1241.75 notes that the United States may pursue a criminal penalty if a party committed an act for which a civil penalty is provided in 30 U.S.C. 1719(d) and 30 CFR 1241.60(b)(2). The proposed 30 CFR 1241.75 was intended to clarify and explain the application of 30 U.S.C. 1719(d) in a civil context. However, after further consideration, we do not believe that it is necessary to provide a regulation to discuss criminal prosecution. Therefore, 30 CFR 1241.75 is removed from the final rule. The removal of 30 CFR 1241.75 in no way limits our ability to refer a violation for criminal prosecution under 30 U.S.C. 1720 or another statute.
Industry states that ONRR is relying on the “strict vicarious liability” standards in the False Claims Act which imposes “strict vicarious liability” on a corporation for the act and knowledge of its employee. Industry contends that ONRR cannot apply those standards to FOGRMA because they are two entirely different statutes. Industry states that ONRR must conduct a case-by-case evaluation of the relevant factors and may impute liability to the corporation only if the agent's culpable act or knowledge is material to the agent's duties. Industry also states that, under FOGRMA, a lessee may designate an agent for a royalty related matter and that ONRR recognizes such designation when a company fills out and submits an Addressee of Record Designation for Service of Official Correspondence (form ONRR-4444). Industry states that the proposed regulation would circumvent an otherwise orderly system in which liability should only be imputed for an act or knowledge of a designated agent. Industry contends that it would be unfair to “strictly and vicariously” impose a large civil penalty on a lessee under proposed 30 CFR 1241.60(b)(2) if a lessee fails to comply with any communication that ONRR sends to any company employee. Industry likewise contends that it is unfair to impose a civil penalty if ONRR fails to send official correspondence to the designated person by authorized means.
Industry asserts that, under ONRR's preferred formulation, ONRR could sweep any reporting violation into 30 U.S.C. 1719(d), however alleged, that is not immediately corrected, thus merging the FOGRMA civil penalty provisions and eliminating the various hierarchy of violations that FOGRMA clearly established. Industry contends that ONRR lacks the authority to erase the graduated, proportionate, and strictly defined hierarchy of ascending civil penalties that Congress prescribed.
Moreover, in the 2009 and 2010 Appropriations Acts, Congress directed the Secretary to apply FOGRMA section 109 (30 U.S.C. 1719) to Federal and Indian solid mineral leases, geothermal leases, and agreements for OCS energy development under 43 U.S.C. 1337(p). This rule is necessary to effectively announce and clarify the authority set out in the 2009 and 2010 Appropriations Acts. The new 30 CFR 1241.2 states that this part will apply to all Federal mineral leases onshore and on the OCS, to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS.
Title 30 CFR 1241.3 provides definitions for terms that are not comprehensively defined or, in most instances, not defined at all in the current 30 CFR 1241. For example, we already possess the authority to issue a civil penalty for knowing or willful violations under 30 U.S.C. 1719(c) and (d). This rule simply clarifies what the term “
FOGRMA established a tiered system of civil penalties and structured liabilities for relatively minor or inadvertent violations to major, complex, or severe violations. Congress delegated to the Secretary the authority to impose a civil penalty to deter FOGRMA violations. We may issue either a NONC or ILCP, depending upon the type of violation we discover and whether it is knowing or willful. 30 CFR part 1210 provides specific requirements for reporting, including discovering errors and submitting corrections. Thus, a party's action or inaction dictates the type of 30 U.S.C. violation assessed.
A company is legally required to have records available and ready for inspection. If an audit cannot be performed because of a company's failure to produce documents, we are authorized to issue an ILCP for failing or refusing to permit an audit.
Industry contends that the prerequisites to request a hearing set forth in proposed 30 CFR 1241.5 are burdensome and ambiguous. For instance, they contend that ONRR does not clearly articulate what is necessary for industry to explain its reasons for challenging a NONC, FCCP, or ILCP. Industry also contends that ONRR requires the submission of a surety instrument based on uncertain dollar amounts due, which is similar to using a “moving target to find the submitted security insufficient and deny a hearing on the record.” Moreover, industry disagrees with the requirement in proposed 30 CFR 1241.6 to use Pay.gov to pay the hearing request processing fee. Industry asserts that “ONRR must withdraw or revise and re-propose these proposed [hearing request] requirements.”
Currently under 30 CFR 1241.54, a recipient of a NONC can request a hearing on its liability for the NONC. Under the current 30 CFR 1241.56, the recipient may request a hearing on only the amount of the penalty. Likewise, under the current regulations, a recipient of an ILCP can request a hearing on its liability for the ILCP under 30 CFR 1241.62, or on the amount of the penalty under 30 CFR 1241.64. We believe that having four sections to request a hearing that result in the same process is confusing and redundant. Therefore, 30 CFR 1241.7 consolidates all four sections.
Under the final 30 CFR 1241.7, a party may still request a hearing on a NONC, FCCP, or ILCP before an ALJ. A party will have 30 days from receipt of a NONC, FCCP, or ILCP to file a hearing request. This provision is the same as the current regulations in 30 CFR 1241.54 (hearing request for a NONC) and 30 CFR 1241.62 (hearing request for liability for an ILCP). However, this provision will change current regulations at 30 CFR 1241.56(b) (hearing request for a FCCP) and 1241.64(b) (hearing request on the amount of a civil penalty assessed in an ILCP). The current regulations allow only 10 days for a party to request a hearing on a civil penalty assessment. Title 30 CFR 1241.7 extends the period within which to request a hearing to 30 days. Final 30 CFR 1241.7 also clarifies that the 30-day period may not be extended.
After consideration of industry comments, we removed proposed 30 CFR 1241.8 and 1241.9 from the final rule. Nevertheless, the option of filing a motion for summary decision is available to either party upon the commencement of the case, and the burden will remain with the movant to demonstrate that there is no issue of material fact and that, as a matter of law, judgment is appropriate. The ALJ has the discretion to schedule and rule on any motion for summary decision. Additionally, even without a regulatory amendment, both parties should adhere to the customary standards for a motion for summary decision. Because proposed 30 CFR 1241.8 and 1241.9 are removed, 30 CFR 1241.8 is replaced with 30 CFR 1241.8 addressing the ALJ holding a hearing and rendering a decision, and proposed 30 CFR 1241.10, addressing the appeal of an ALJ's decision, is re-designated as 30 CFR 1241.9.
We do not purposely delay the issuance of an ILCP in order to escalate the amount of a penalty assessment. Indeed, the date on which the ILCP is issued has no effect on the amount of the civil penalty because a knowing or willful civil penalty only accrues for as many days as the violating party allows it to accrue. A party that knowingly or willfully commits a violation can stop the accrual of the civil penalty at any time by simply correcting the violation, regardless of when we issue the ILCP.
ONRR determines the amount of the civil penalty by considering the three factors set forth in 30 CFR 1241.70. Industry is aware of the factors considered by ONRR when determining the amount of a civil penalty. Additionally, industry is aware of its reporting requirements set forth in the regulations. FOGRMA authorizes steep penalties for 30 U.S.C. 1719 violations, but our assessments are already far below the maximum allowable under the law. We determine the amount of the civil penalty in accordance with 30 CFR 1241.70 which is consistent with our current practice.
This is a technical rule that will (1) apply the regulations to all Federal mineral leases onshore and on the OCS, to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS; (2) incorporate the civil penalty inflation adjustments made pursuant to the 2015 Act; (3) clarify and simplify the existing regulations for issuing a NONC, FCCP, and ILCP; and (4) announce our practice of publishing our civil penalty assessment matrices on our Web site. These changes will have no royalty impacts on industry; State and local governments; Indian Tribes; individual Indian mineral owners; or the Federal Government. As explained below, industry will not incur significant additional administrative costs under this final rule. However, industry can realize some increased penalties under this final rule. The Federal Government, and any States and Tribes that are eligible to share civil penalties under 30 U.S.C. 1736, will benefit from penalty amounts that we imposed, for the first time, on solid mineral and geothermal lessees. The cost and benefit information in item 1 of the Procedural Matters is used as the basis for Departmental certifications in items 2 through 10.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866, while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public, where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We developed this rule in a manner consistent with these requirements.
The Department certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule will affect lessees under Federal mineral leases onshore and the OCS and all Federally administered mineral lease on Indian Tribal and individual Indian mineral owners' lands. Federal and Indian mineral lessees are, generally, companies classified under the North American Industry Classification System (NAICS), as follows:
• Code 211111, which includes companies that extract crude petroleum and natural gas.
• Code 212111, which includes companies that extract surface coal.
• Code 212112, which includes companies that extract underground coal.
For these NAICS code classifications, a small company is one with fewer than 500 employees. The Department estimates that 1,855 companies that this rule affects are small businesses that submit royalty and production reports from Federal and Indian leases to us each month.
Per our analysis shown in item 1 above, we do not estimate that this rule will result in a significant economic effect on a substantial number of small entities because this rule will cost
Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and ten Regional Fairness Boards receive comments from small businesses about Federal agency enforcement actions. The Ombudsman annually evaluates the enforcement activities and rates each agency's responsiveness to small business. If you wish to comment on our actions, call 1-(888) 734-3247. You may comment to the Small Business Administration without fear of retaliation. Allegations of discrimination, retaliation, or both filed with the Small Business Administration will be investigated for appropriate action.
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or more. We estimate that the maximum effect on all of industry will be $169,134 annually. As shown in item 1 above, the economic impact on industry; State and local governments; Indian Tribes and individual Indian mineral owners; and the Federal government will be well below the $100 million threshold that the Federal government uses to define a rule as having a significant impact on the economy.
b. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, local government agencies; or geographic regions. See item 1 above.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. Therefore, we are not required to provide a statement containing the information that the Unfunded Mandates Reform Act (2 U.S.C. 1531
Under the criteria in section 2 of E.O. 12630, this rule does not have any significant takings implications. This rule will not impose conditions or limitations on the use of any private property. This rule will apply to all Federal and Indian leases. Therefore, this rule does not require a Takings Implication Assessment.
Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. The management of all Federal and Indian leases is the responsibility of the Secretary, and we distribute monies that we collect from the leases to States, Tribes, and individual Indian mineral owners. This rule does not substantially and directly affect the relationship between the Federal and State governments. Because this rule does not alter that relationship, this rule does not require a Federalism summary impact statement.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
a. Meets the criteria of section 3(a), which requires that we review all regulations to eliminate errors and ambiguity and to write them to minimize litigation.
b. Meets the criteria of § 3(b)(2), which requires that we write all regulations in clear language using clear legal standards.
The Department strives to strengthen its government-to-government relationship with the Indian Tribes through a commitment to consultation with the Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. Under the Department's consultation policy and the criteria in E.O. 13175, we evaluated this rule and determined that it will have no substantial effects on Federally-recognized Indian Tribes. Likewise, these amendments to 30 CFR part 1241, subpart B, will not affect Indian Tribes because the changes are only technical in nature.
This rule:
(a) Does not contain any new information collection requirements.
(b) Does not require a submission to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This rule does not constitute a major Federal action, significantly affecting the quality of the human environment. We are not required to provide a detailed statement under NEPA because this rule qualifies for categorical exclusion under 43 CFR 46.210(i) in that this rule is “. . .
This rule is not a significant energy action under the definition in E.O. 13211; therefore, a Statement of Energy Effects is not required.
Civil penalties, Notices of noncompliance.
For the reasons discussed in the preamble, ONRR revises 30 CFR part 1241 to read as follows:
25 U.S.C. 396
This part explains:
(a) When you may receive a NONC, FCCP, or ILCP.
(b) How ONRR assesses a civil penalty.
(c) How to appeal a NONC, FCCP, or ILCP.
This part applies to:
(a) All Federal mineral leases onshore and on the OCS.
(b) All Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, regardless of the statutory authority under which the lease was issued or maintained.
(c) All easements, rights of way, and other agreements subject to 43 U.S.C. 1337(p).
(a) Unless specifically defined in paragraph (b) of this section, the terms in this part have the same meaning as in 30 U.S.C. 1702.
(b) The following definitions apply to this part:
(i) Actual knowledge;
(ii) Deliberate ignorance; or
(iii) Reckless disregard of the facts surrounding the event or violation; it requires no proof of specific intent to defraud.
(a) We will serve a NONC, FCCP, or ILCP as set out in FOGRMA section 109(h) (30 U.S.C. 1719) by registered mail or personal service to the addressee of record or alternate, as identified in 30 CFR 1218.540.
(b) We will consider the Notice served on the date when it was delivered to the addressee of record or alternate, as identified in 30 CFR 1218.540.
Except as provided by § 1241.6, you may request a hearing on:
(a) A NONC to contest your liability.
(b) A FCCP to contest only the civil penalty amount, unless a request for hearing was filed under paragraph (a) of this section; in which case, the requests for hearing filed under paragraph (a) and this paragraph (b) will be combined into a single proceeding.
(c) An ILCP to contest your liability, civil penalty amount, or both. If your hearing request does not state whether you are contesting your liability for the ILCP or the penalty amount, or both, you will be deemed to have requested a hearing only on the penalty amount.
(d) You may request a hearing even if you correct the violation identified in a Notice.
You may not request a hearing on:
(a) Your liability under an order identified in a NONC, FCCP, or ILCP if you did not appeal in a timely manner the order under 30 CFR part 1290 or you appealed in a timely manner the order under 30 CFR part 1290 but have exhausted your appeal rights.
(b) Any correspondence that we send to you to update you on the amount of penalties accrued or outstanding under a FCCP or ILCP ONRR previously served on you.
You may request a hearing on the record before an ALJ on a Notice by filing a request within 30 days of the date of service of the Notice with the DCHD, at the address indicated in your Notice. The 30 day-period to request a hearing on the record will not be extended for any reason.
If you request a hearing on the record under § 1241.7, an ALJ will conduct the hearing under the provisions of 43 CFR 4.420 through 4.438, except when the provisions are inconsistent with the provisions of this part. We have the burden of proving, by a preponderance of the evidence, the fact of the violation and the basis for the amount of the civil penalty. Upon completion of the hearing, the ALJ will issue a decision according to the evidence presented and the applicable law.
If you are adversely affected by the ALJ's decision, you may appeal that decision to the IBLA under 43 CFR part 4, subpart E.
You may seek judicial review of the IBLA decision under 30 U.S.C. 1719(j) in Federal District Court. You must file a suit for judicial review in Federal District Court within 90 days after the final IBLA decision.
(a) If you do not correct the violation identified in a Notice, any penalty will continue to accrue, even if you request a hearing, except as provided in paragraph (b) of this section.
(b)
(1) You must file your petition for stay within 45 calendar days after you receive a Notice.
(2) You must file your petition for stay under 43 CFR 4.21(b), in which event:
(i) We may file a response to your petition within 30 days after service.
(ii) The 45-day requirement set out in 43 CFR 4.21(b)(4) for the ALJ to grant or deny the petition does not apply.
(3) If the ALJ determines that a stay is warranted, the ALJ will issue an order granting your petition, subject to your satisfaction of the following condition: within 10 days of your receipt of the order, you must post a bond or other surety instrument using the same standards and requirements as prescribed in 30 CFR part 1243, subpart B; or demonstrate financial solvency using the same standards and requirements as prescribed in 30 CFR part 1243, subpart C, for any specified, unpaid principal amount that is the subject of the Notice, any interest accrued on the principal, and the amount of any penalty set out in a Notice accrued up to the date of the ALJ order conditionally granting your petition.
(4)(i) If you satisfy the condition to post a bond or surety instrument or demonstrate financial solvency under paragraph (b)(3) of this section, the accrual of penalties will be stayed effective on the date of the ALJ's order conditionally granting your petition.
(ii) If you fail to satisfy the condition to post a bond or surety instrument or demonstrate financial solvency under paragraph (b)(3) of this section, penalties will continue to accrue.
(5) Notwithstanding paragraphs (b)(1), (2), (3), and (4) of this section, if the ALJ determines that your defense to a Notice is frivolous, and a civil penalty is owed, you will forfeit the benefit of the stay, and penalties will be calculated as if no stay had been granted.
If we determine that you have not followed any requirement of a statute, regulation, order, or a term of a lease subject to this part, we may serve you with a NONC explaining:
(a) What the violation is.
(b) How to correct the violation to avoid a civil penalty.
(c) That you have 20 days after the date on which you are served the NONC to correct the violation, unless the NONC specifies a longer period.
If you correct all of the violations that we identified in the NONC within 20 days after the date on which you are served the NONC, or any longer period for correction that the NONC specifies, we will close the matter and will not assess a civil penalty. However, we will consider these violations as part of your history of noncompliance for future penalty assessments under § 1241.70(a)(2).
(a) If you do not correct all of the violations that we identified in the NONC within 20 days after the date on which you are served the NONC, or any longer period that the NONC specifies for correction, then we may send you an FCCP.
(1) The FCCP will state the amount of the penalty that you must pay. The penalty will:
(i) Begin to run on the day on which you were served with the NONC.
(ii) Continue to accrue for each violation identified in the NONC until it is corrected.
(2) The penalty may be up to $1,177 per day for each violation identified in the NONC that you have not corrected.
(b) If you do not correct all of the violations identified in the NONC within 40 days after you are served the NONC, or within 20 days following the expiration of any period longer than 20 days that the NONC specifies for correction, then we may increase the penalty to a maximum of $11,774 per day for each violation identified in the NONC that you have not corrected. The increased penalty will:
(1) Begin to run on the 40th day after the date on which you were served the NONC, or on the 20th day after the expiration of any period longer than 20 days that the NONC specifies for correction.
(2) Continue to accrue for each violation identified in the NONC until it is corrected.
(a) We may assess a penalty for a violation identified in paragraph (b) of this section without prior notice or first giving you an opportunity to correct the violation. We will inform you of a violation without a period to correct by issuing an ILCP explaining:
(1) What the violation is.
(2) The amount of the civil penalty. The civil penalty for such a violation
(b) ONRR may assess a civil penalty of up to:
(1) $23,548 per day, per violation for each day that the violation continues if you:
(i) Knowingly or willfully fail to make any royalty payment by the date specified by statute, regulation, order, or a term of the lease.
(ii) Fail or refuse to permit lawful entry, inspection, or audit, including refusal to keep, maintain, or produce documents.
(2) $58,871 per day, per violation for each day that the violation continues if you knowingly or willfully prepare, maintain, or submit a false, inaccurate, or misleading report, notice, affidavit, record, data, or any other written information.
(c) We may use any information as evidence that you knowingly or willfully committed a violation, including:
(1) The act and failure to act of your employee or agent.
(2) An email indicating your concurrence with an issue.
(3) An order that you did not appeal or an order, NONC, or ILCP for which no further appeal is available.
(4) Any written or oral communication, identifying a violation which:
(i) You acknowledge as true and fail to correct.
(ii) You fail to or cannot further appeal and fail to correct.
(iii) You correct, but you subsequently commit the same violation.
(a) ONRR will determine the amount of the penalty to assess by considering:
(1) The severity of the violation.
(2) Your history of noncompliance.
(3) The size of your business. To determine the size of your business, we may consider the number of employees in your company, parent company or companies, and any subsidiaries and contractors.
(b) We will not consider the royalty consequence of the underlying violation when determining the amount of the civil penalty for a violation under § 1241.50 or § 1241.60(b)(1)(ii) or (b)(2).
(c) We will post the FCCP and ILCP assessment matrices and any adjustments to the matrices on our Web site.
(a) A penalty under this part is in addition to interest that you may owe on any underlying underpayment or unpaid debt.
(b) If you do not pay the penalty amount by the due date in the bill accompanying the FCCP or ILCP, you will owe late payment interest on the penalty amount under 30 CFR 1218.54 from the date when the civil penalty payment became due under § 1241.72 until the date when you pay the civil penalty amount.
(a) If you do not request a hearing on a FCCP or ILCP under this part, you must pay the penalty amount by the due date specified in the bill accompanying the FCCP or ILCP.
(b) If you request a hearing on a FCCP or ILCP under this part, the ALJ affirms the civil penalty; and
(1) You do not appeal the ALJ's decision to the IBLA under § 1241.9, you must pay the civil penalty amount determined by the ALJ within 30 days of the ALJ's decision; or
(2) You appeal the ALJ's decision to the IBLA under § 1241.9, and IBLA affirms a civil penalty; and
(i) You do not seek judicial review of the IBLA's decision under 30 U.S.C. 1719(j), you must pay the civil penalty amount that IBLA determines within 120 days of the IBLA decision; or
(ii) You seek judicial review of the IBLA decision, and a court of competent jurisdiction affirms the penalty, you must pay the penalty assessed within 30 days after the court enters a final non-appealable judgment.
ONRR's Director or his or her delegate may compromise or reduce a civil penalty assessed under this part.
(a) If you do not pay a civil penalty amount by the date when payment is due under § 1241.72, we may use all available means to collect the penalty, including but not limited to:
(1) Requiring the lease surety, for an amount owed by a lessee, to pay the penalty.
(2) Deducting the amount of the penalty from any sum that the United States owes you.
(3) Referring the debt to the Department of the Treasury for collection under 30 CFR part 1218, subpart J.
(4) Using the judicial process to compel your payment under 30 U.S.C. 1719(k).
(b) If ONRR uses the judicial process to compel your payment, or if you seek judicial review under 30 U.S.C. 1719(j), and the court upholds the assessment of a penalty, the court will have jurisdiction to award the penalty amount assessed plus interest from the date of the expiration of the 90-day period referred to in 30 U.S.C. 1719(j).
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Seattle Seafair Unlimited Hydroplane Race special local regulation on Lake Washington, WA from 8 a.m. on August 2, 2016 through 11 p.m. on August 7, 2016 during hydroplane race times. This action is necessary to ensure public safety from the inherent dangers associated with high-speed races while allowing access for rescue personnel in the event of an emergency. During the enforcement period, no person or vessel will be allowed to enter the regulated area without the permission of the Captain of the Port, Puget Sound, the on-scene Patrol Commander, or a designated representative.
The regulations in 33 CFR 100.1301 will be effective from 8 a.m. on August 2, 2016 through 11 p.m. on August 7, 2016.
If you have questions on this notice, call or email LT Kate Haseley, Sector Puget Sound Waterways Management Division, Coast Guard; telephone (206) 217-6051, email
The Coast Guard will enforce the Seattle Seafair Unlimited Hydroplane Race special local regulation in 33 CFR 100.1301 from 8 a.m. on August 2, 2016 through 11 p.m. on August 7, 2016.
Under the provisions of 33 CFR 100.1301, the Coast Guard will restrict general navigation in the following area: All waters of Lake Washington bounded by the Interstate 90 (Mercer Island/Lacey V. Murrow) Bridge, the western shore of Lake Washington, and the east/west line drawn tangent to Bailey Peninsula and along the shoreline of Mercer Island.
The regulated area has been divided into two zones. The zones are separated by a line perpendicular from the I-90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).
The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Coast Guard Auxiliary vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters during the periods this regulation is in effect. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.
Only vessels authorized by the Patrol Commander may be allowed to enter Zone I during the hours this regulation is in effect. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by the Patrol Commander.
During the times in which the regulation is in effect, the following rules shall apply:
(1) Swimming, wading, or otherwise entering the water in Zone I by any person is prohibited while hydroplane boats are on the racecourse. At other times in Zone I, any person entering the water from the shoreline shall remain west of the swim line, denoted by buoys, and any person entering the water from the log boom shall remain within ten (10) feet of the log boom.
(2) Any person swimming or otherwise entering the water in Zone II shall remain within ten (10) feet of a vessel.
(3) Rafting to a log boom will be limited to groups of three vessels.
(4) Up to six (6) vessels may raft together in Zone II if none of the vessels are secured to a log boom. Only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.
(5) Vessels proceeding in either Zone I or Zone II during the hours this regulation is in effect shall do so only at speeds which will create minimum wake, seven (07) miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.
(6) Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven (07) miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.
(7) A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both.
The Captain of the Port may be assisted by other federal, state and local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 100.1301 and 5 U.S.C. 552(a). If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.
Coast Guard, DHS.
Notice of temporary deviation from regulation; modification.
The Coast Guard has modified a temporary deviation from the operating schedule that governs Seattle Department of Transportation's (SDOT) Fremont Bridge, across the Lake Washington Ship Canal, mile 2.6, at Seattle, WA. The modified deviation is necessary to accommodate heavy pedestrian and cycling traffic across the bridge during the `Fun Ride' event and Lake Union 10K Run event. This modified deviation allows the bridge to remain in the closed-to-navigation position and need not open to maritime traffic.
This deviation is effective from 7:30 a.m. to 8:30 a.m. and 10:30 a.m. to 12:30 p.m. on August 14, 2016.
The docket for this deviation, [USCG-2016-0635] is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
On July 15, 2016, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA” in the
Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Department of Education.
Interim final regulations.
The Department of Education (Department) issues these interim final regulations to adjust the Department's civil monetary penalties (CMPs) for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act).
These regulations are effective August 1, 2016. In this rule, the adjusted civil penalty amounts are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the date of enactment of the 2015 Amendments. Therefore, violations occurring on or before November 2, 2015, and assessments made prior to August 1, 2016 whose associated violations occurred after November 2, 2015, will continue to be subject to the civil monetary penalty amounts set forth in the Department's existing regulations at 34 CFR 36.2 (or as set forth by statute if the amount has not yet been adjusted by regulation).
Levon Schlichter, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW., Room 6E235, Washington, DC 20202-2241. Telephone: (202) 453-6387 or by email:
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an accessible format (
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) (section 701 of Pub. L. 114-74), which further amended the Inflation Adjustment Act, to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect.
The Department is required to publish an IFR with the initial penalty adjustment amounts by July 1, 2016, and the new penalty levels must take effect no later than August 1, 2016. These adjustments will apply to all civil monetary penalties covered by the Inflation Adjustment Act.
A CMP is defined in the statute as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.
The formula for the amount of a CMP inflation adjustment is prescribed by law, as explained in OMB Memorandum M-16-06 (February 24, 2016), and is not subject to the exercise of discretion by the Secretary of Education (Secretary). Under the 2015 Act, the Department must use, as the baseline for adjusting the CMPs in this IFR, the CMP amounts as they were most recently established or adjusted under a provision of law other than by the Inflation Adjustment Act. In accordance with the 2015 Act, we are not using the amounts set out in 34 CFR part 36 in 2012 in the formula used to adjust for inflation because those CMP amounts were updated pursuant to the Inflation Adjustment Act.
The following analysis calculates new civil monetary penalties for penalty statutes in the order in which they appear in 34 CFR 36.2. The 2015 Act provides that any increase to an agency's CMPs applies only to CMPs, including those whose associated violation predated such increase, which are assessed after the effective date of the adjustments. These regulations are effective August 1, 2016. Therefore, the adjustments made by this amendment to the Department's CMPs apply only to violations that are assessed after August 1, 2016.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a significant regulatory action as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities in a material way (also referred to as “economically significant” regulations);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
Based on the number and amount of penalties imposed under the CMPs amended in this IFR, we have determined that this regulatory action will have none of the economic impacts described under the Executive order. This IFR is required by statute, the adjusted CMPs are not at the Secretary's discretion, and, accordingly, this IFR does not have any of the policy impacts described under the Executive order. Because this IFR is not a significant regulatory action, it is not subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing this IFR as required by statute. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that this IFR is consistent with the principles in Executive Order 13563.
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)). There is good cause to waive rulemaking here as unnecessary.
Rulemaking is “unnecessary” in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.”
These regulations merely implement the statutory mandate to adjust CMPs for inflation. The regulations reflect administrative computations performed by the Department as prescribed by the statute and the Secretary has no discretion in determining the new penalties.
The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because these final regulations merely implement non-discretionary administrative computations, there is good cause to make them effective on the day they are published.
The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities. The formula for the amount of the inflation adjustments is prescribed by statute and is not subject to the Secretary's discretion. These CMPs are infrequently imposed by the Secretary, and the regulations do not involve any special considerations that might affect the imposition of CMPs on small entities.
These regulations do not contain any information collection requirements.
This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
Based on our own review, we have determined that this IFR does not require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Claims, Fraud, Penalties.
For the reasons discussed in the preamble, the Secretary amends part 36 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1221e-3 and 3474; 28 U.S.C. 2461 note, as amended by § 701 of Pub. Law 114-74, unless otherwise noted.
Office of Special Education and Rehabilitative Services, Department of Education.
Final priorities, requirements, and definition.
The Assistant Secretary for Special Education and Rehabilitative Services announces priorities, requirements, and a definition under the Disability Innovation Fund (DIF) Program. The Assistant Secretary may use these priorities, requirements, and definition for competitions in fiscal year (FY) 2016 and later years. The Assistant Secretary takes this action to identify, develop, implement, and evaluate work-based learning models that are supported by evidence and will help students with disabilities prepare for postsecondary education and competitive integrated employment. The models must be delivered through a coordinated system of transition services.
The priorities, requirements, and definition are effective October 9, 2016.
RoseAnn Ashby, U.S. Department of Education, Rehabilitation Services Administration, 400 Maryland Avenue SW., Room 5057, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7258, or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
We published a notice of proposed priorities, requirements, and definitions (NPP) for this competition in the
The term “effective” in the context of education research and evaluation usually means that a high-quality study was conducted to assess the effectiveness of an intervention. While the purpose of Priority 1 is to build the evidence base and identify and demonstrate work-based learning interventions that are supported by evidence for students with disabilities, the priority does not require that the proposed interventions to be implemented under the project's model be supported by a specific level of effectiveness determined by a high-quality study. Accordingly, we believe that the term “supported by evidence” more accurately reflects the intent of the priority.
We give priority to model demonstration projects designed to identify, develop, implement, and evaluate work-based learning models that are supported by evidence and will help ensure that students with disabilities are prepared for postsecondary education and competitive integrated employment. The model demonstration projects must provide work-based learning experiences, supported by evidence, in integrated settings, in coordination with other transition services, including pre-employment transition services, to students with disabilities, through State VR agencies, in collaboration with LEAs or, where appropriate, SEAs and other local partners.
We give priority to applicants who propose projects supported by evidence of promise for at least one key component and at least one relevant outcome in the logic model for their proposed project.
We give priority to applicants that propose to conduct a rigorous and well-designed evaluation of their completed model demonstration project that, if the research design is well implemented, would meet the What Works Clearinghouse Evidence Standards.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The Assistant Secretary announces the following project requirements for this competition. We may apply one or more of these requirements in any year in which this competition is in effect. Each of the following sets of requirements corresponds to one of the priorities.
To be considered for funding under Priority 1, applicants must describe their plans to carry out the following project requirements—
(a) Develop and implement a project design replicable in similar contexts and settings that is supported by strong theory. The model must be implemented at multiple local sites to ensure its replicability;
(b) Develop and implement a project demonstrating practices and strategies that are supported by evidence in the use of work-based learning experiences in integrated settings within the local community to prepare students with disabilities for postsecondary education and competitive integrated employment;
(c) Establish partnerships with the LEA or, as appropriate, the SEA, institutions of higher education, employers, and providers or other agencies that are critical to the development of work-based learning experiences in integrated settings for students with disabilities. At a minimum, the partnership must include representatives from the LEA, workforce training providers (
(d) Provide career exploration and counseling to assist students in identifying possible career pathways (as defined in this notice) and the relevant work-based learning experiences;
(e) Develop work-based learning experiences in integrated settings, at least one of which must be a paid experience, that—
(1) Provide exposure to a wide range of work sites to help students make informed choices about career selections;
(2) Are appropriate for the age and stage in life of each participating student, ranging from site visits and tours, job shadowing, service learning, apprenticeships, and internships;
(3) Are structured and linked to classroom or related instruction;
(4) Use a trained mentor to help structure the learning at the worksite;
(5) Include periodic assessment and feedback as part of each experience; and
(6) Fully involve students with disabilities and, as appropriate, their representative in choosing and structuring their experiences;
(f) Provide instruction in employee rights and responsibilities, as well as positive work skills, habits, and behaviors that foster success in the workplace;
(g) Identify and provide support services, as appropriate, including transportation services (
(h) Identify and provide or arrange for accommodations or assistive technology needed to ensure the student's success in participating in work-based learning experiences;
(i) Develop and implement a plan to measure the model demonstration project's performance and outcomes. A detailed and complete evaluation plan must include—
(1) A formative evaluation plan, consistent with the project's logic model, that—
(i) Includes evaluation questions, source(s) for data, a timeline for data collection, and analysis plans;
(ii) Shows how the outcome (
(iii) Outlines how these data will be reviewed by project staff, when they will be reviewed, and how they will be used during the course of the project to adjust the model or its implementation to increase the model's usefulness, replicability in similar contexts and settings, and potential for sustainability; and
(2) A summative evaluation plan, including a timeline, to collect and analyze data on students and their outcomes over time, both for students with disabilities served by the project and for students with disabilities in a comparison group not receiving project services.
(j) Collect data necessary to evaluate the outcomes of the project, including the progress of the project in achieving its goals and outcomes, which, at a minimum, must include:
(1) The relevant available RSA-911 Case Service Report data for each student in the project;
(2) The number of students in the work-based learning project;
(3) The number of students in the project who complete at least one work-based learning experience;
(4) The number of work-based learning experiences that each student completes during the project;
(5) The types of work-based learning experiences in which students participated;
(6) The number of students who attain a recognized post-secondary credential and the type of credentials attained;
(7) The number of students who obtain competitive integrated employment; and
(8) An unduplicated count of students who obtain a recognized postsecondary credential and competitive integrated employment.
(k) Make outcome data available to the Department for publication through the National Clearinghouse of Rehabilitation Training Materials.
To be considered for funding under Priority 1, an applicant also must provide the following with its application:
(a) A detailed review of the literature that describes the evidence base for the proposed demonstration project, its components, and strategies for work-based learning experiences for students with disabilities;
(b) A logic model;
(c) A description of the applicant's plan for implementing the project, including a description of—
(1) A cohesive, articulated model of partnership and coordination among the participating agencies and organizations;
(2) The coordinated set of practices and strategies that are supported by evidence in the use and development of work-based learning models that are aligned with employment, training, and education programs and reflect the needs of employers and of students with disabilities; and
(3) How the proposed project will—
(i) Involve employers in the project design and in partnering with project staff to develop integrated job shadowing, internships, apprenticeships, and other paid and unpaid work-based learning experiences that are designed to increase the preparation of students with disabilities for postsecondary education and competitive integrated employment;
(ii) Conduct outreach activities to identify students with disabilities whom the work-based learning experiences would enable them to achieve competitive integrated employment; and
(iii) Identify innovative strategies, including development, implementation, and evaluation of approved models, methods, and measures that will increase the preparation of students with disabilities for postsecondary education and competitive integrated employment;
(d) A description of the methods and criteria that will be used to select the site(s) at which the project activities will be implemented;
(e) Documentation (
(f) A plan for evaluating the project's performance, including an evaluation of the practices and strategies implemented by the project, in achieving project goals and objectives.
Specifically, the evaluation plan must include a description of—
(1) A formative evaluation plan, consistent with the project's logic model that includes the following:
(i) The key questions to be addressed by the project evaluation and the appropriateness of the methods for how each question will be addressed;
(ii) How the methods of evaluation will provide valid and reliable
(iii) A clear and credible analysis plan, including a proposed sample size and minimum detectable effect size that aligns with the expected project impact, and an analytic approach for addressing the research questions; and
(iv) How the key components of the project, as well as a measurable threshold for acceptable implementation and outcome data, will be reviewed and used to improve the project;
(2) A summative evaluation plan, including—
(i) How the outcomes and implementation data collected by the project will be used, separately or in combination, to demonstrate that the goals of the model were met;
(ii) How the outcomes for students with disabilities served by the project will be compared with the outcomes of students with disabilities not receiving project services.
(g) A plan for systematic dissemination of project findings, templates, resources, and knowledge gained that will assist State and local VR and educational agencies in adapting or replicating the model work-based learning demonstration developed and implemented by the project, which could include elements such as development of a Web site, resources (
(h) An assurance that the employment goal for all students served under Priority 1 will be competitive integrated employment, including customized or supported employment; and
(i) An assurance that the project will collaborate with other work-based learning initiatives.
To meet Priority 2, applicants must meet the following requirements:
(a) Applicants must identify and include a detailed discussion of up to two cited studies that meet the evidence of promise standard for at least one key component and at least one relevant outcome in the logic model for the proposed project. Both the critical component(s) and relevant outcome(s) must be specified for each study cited.
(b) The full names and links for the citations submitted for this priority must be provided on the Abstract and Information page of the application, or the full text of each study cited must be provided.
(c) Applicants must specify on the Abstract and Information page the findings in the studies that are cited as evidence of promise for the key component(s) and relevant outcome(s) and ensure that the citations and links are from publicly or readily available sources. Studies of fewer than 10 pages may be attached in full under Other Attachments in
To meet Priority 3, applicants must describe in their applications how they would meet the following competition requirements:
(a) Conduct an independent evaluation (as defined in this notice) of its project. This evaluation must estimate the impact of the project on a relevant outcome.
(b) Use an evaluation design that, if well implemented, is likely to meet the What Works Clearinghouse Evidence Standards.
(c) Make broadly available the results of any evaluations it conducts of its funded activities, digitally and free of charge, through formal (
(d) Cooperate on an ongoing basis with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department.
We announce one new definition for use in connection with the priorities. The remaining definitions listed in the NPP and used in the final priorities and requirements in this notice are established defined terms in the Workforce Innovation and Opportunity Act (WIOA), the Rehabilitation Act, or 34 CFR part 77 and are provided in the notice inviting applications published elsewhere in this issue of the
The Assistant Secretary announces the following definition for this competition. We may apply this definition in any year in which this program is in effect.
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final priorities, requirements, and definitions only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
You may also access documents of the Department published in the
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to revise the regulatory definition of volatile organic compounds (VOC) under the Clean Air Act (CAA). This direct final action adds 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (also known as HFE-347pcf2; CAS number 406-78-0) to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone (O
This rule is effective on September 30, 2016 without further notice, unless the EPA receives adverse comment by August 31, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0041, at
Souad Benromdhane, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C539-07, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919) 541-5315; email address:
The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This action revises the EPA's regulatory definition of VOC for purposes of preparing state implementation plans (SIPs) to attain the national ambient air quality standards (NAAQS) for O
If the EPA receives adverse comment, we will publish a timely withdrawal in the
Entities potentially affected by this direct final rule include, but are not necessarily limited to: State and local air pollution control agencies that adopt and implement regulations to control air emissions of VOC; and industries manufacturing and/or using HFE-347pcf2 as a precision cleaning agent to remove contaminants including oil, flux, and fingerprints from items like medical devices, artificial implants, crucial military and aerospace items, electric components, printed circuit boards, optics, jewelry, ball bearings, aircraft guidance systems, film, relays, and a variety of metal components, among others.
Tropospheric O
The CAA requires the regulation of VOC for various purposes. Section 302(s) of the CAA specifies that the EPA has the authority to define the meaning of “VOC” and, hence, what compounds shall be treated as VOC for regulatory purposes. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) (from here forward referred to as the 1977 Recommended Policy) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005) (from here forward referred to as the 2005 Interim Guidance). The EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption from the regulatory definition of VOC. Compounds that are more reactive than ethane continue to be considered VOC for regulatory purposes and, therefore, are subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 policy.
The EPA has used three different metrics to compare the reactivity of a specific compound to that of ethane: (i) The rate constant for reaction with the hydroxyl radical (OH) (known as k
The k
The MIR, both by mole and by mass, is a more updated metric of photochemical reactivity derived from a computer-based photochemical model, and has been used as a consideration of reactivity since 1995. This metric considers the complete O
The EPA has considered the choice between a molar or mass basis for the comparison to ethane in past rulemakings and guidance. In the 2005 Interim Guidance, the EPA stated:
When reviewing compounds that have been suggested for VOC-exempt status, EPA will continue to compare them to ethane using k
The 2005 Interim Guidance also noted that concerns have sometimes been raised about the potential impact of a VOC exemption on environmental endpoints other than O
Asahi Glass Company, AGC Chemicals America, Inc. submitted a petition to the EPA on February 5, 2007, requesting that 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (HFE-347pcf2; CAS number 406-78-0) be exempted from the regulatory definition of VOC. The petition was based on the argument that HFE-347pcf2 has low reactivity relative to ethane. The petitioner indicated that HFE-347pcf2 may be used in a variety of applications as a precision cleaning agent to remove contaminants including oil, flux, and fingerprints from items like medical devices, artificial implants, crucial military and aerospace items, electric components, printed circuit boards, optics, jewelry, ball bearings, aircraft guidance systems, film, relays, and a variety of metal components, among others.
To support its petition, AGC Chemicals America, Inc. referenced several documents, including two peer-reviewed journal articles on HFE-347pcf2's reaction rates (Tokuhashi
To address the potential for stratospheric O
The EPA is taking direct final action to respond to the petition by exempting HFE-347pcf2 from the regulatory definition of VOC. This action is based on consideration of the compound's low contribution to tropospheric O
The reaction rate of HFE-347pcf2 with the OH radical (k
The overall atmospheric reactivity of HFE-347pcf2 was not studied in an experimental smog chamber, but the chemical mechanism derived from other chamber studies (Carter, 2011) was used to model the complete formation of O
Table 1 presents the three reactivity metrics for HFE-347pcf2 as they compare to ethane.
The data in Table 1, shows that HFE-347pcf2 has a significantly lower k
HFE-347pcf2 is unlikely to contribute to the depletion of the stratospheric O
The Significant New Alternatives Policy (SNAP) program is the EPA's program to evaluate and regulate substitutes for end uses historically using ozone-depleting chemicals. Under Section 612(c) of the CAA, the EPA is required to identify and publish lists of acceptable and unacceptable substitutes for class I or class II ozone-depleting substances. According to the SNAP program finding, the HFE-347pcf2 ODP is zero and therefore HFE-347pcf2 is listed as an acceptable substitute for several of these ozone-depleting chemicals in electronics and precision cleaning and as an aerosol solvent in 2012.
Based on a screening assessment of the health and environmental risks of HFE-347pcf2 (available in the docket for the SNAP rule at EPA-HQ-OAR-2003-0118 under the name, “Risk Screen on Substitutes CFC-113, Methyl Chloroform, and HCFC-141b in Aerosol Solvent, Electronics Cleaning, and Precision Cleaning Substitute: HFE-347pcf2”), the SNAP program anticipated that users will be able to use the compound in precision cleaning without significantly greater health risks than presented by use of other available substitutes.
Potential health effects of HFE-347pcf2 include coughing, dizziness, dullness, drowsiness, and headache. Higher concentrations can produce heart irregularities, central nervous system depression, narcosis, unconsciousness, respiratory failure, or death. This compound may also irritate the skin or eyes. The acute and short-term studies presented during the SNAP review indicated that HFE-347pcf2 is toxic by inhalation, and mortality was observed at high concentrations of 2000 ppm and above. HFE-347pcf2 is not commonly used outside of industrial settings, and other compounds in the same industrial uses have similar health and environmental risks. The SNAP program, in their listing of HFE-347pcf2 as an acceptable substitute in aerosol solvent, recommended that adequate ventilation and good industrial hygiene practice be utilized due to the potential neurotoxic effects of this substitute at high acute (short-term) concentrations. The manufacturer recommended an acceptable exposure limit (AEL) for the workplace of 50 ppm (8-hr total weight average, TWA). The EPA recommended a maximum allowable human exposure limit of 150 ppm for HFE-347pcf2. The EPA anticipates that users following good practices will be able to use HFE-347pcf2 in electronics and precision cleaning without appreciable health risks.
HFE-347pcf2 is not regulated as a hazardous air pollutant (HAP) under Title I of the CAA. Also, it is not listed as a toxic chemical under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).
The Toxic Substances Control Act (TSCA) gives the EPA authority to assess and prevent potential unreasonable risks to human health and the environment before a new chemical substance is introduced into commerce. Section 5 of TSCA requires manufacturers and importers to notify the EPA before manufacturing or importing a new chemical substance by submitting a pre-manufacture notice (PMN) prior to the manufacture (including import) of the chemical. Under the TSCA New Chemicals Program, the EPA then assesses whether an unreasonable risk may, or will, be presented by the expected manufacture, processing, distribution in commerce, use, and disposal of the new substance. The PMN for HFE-347pcf2 stated the substance will be used in industrial settings for cleaning electronic components, precision cleaning, dewatering of electronic components and other parts following aqueous cleaning, and as a carrier/lubricant coating for hard disk drives and other precision parts. EPA did not determine that the above-listed proposed industrial processing or use of the substance presents an unreasonable risk. The EPA has determined, however, that domestic manufacture, use in non-industrial products, or use other than as described in the PMN may cause serious chronic health effects. To mitigate risks identified during the PMN review of HFE-347pcf2 (PMN P-04-0635), EPA issued a Significant New Use Rule (SNUR)
The Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (IPCC AR5) estimated the lifetime of HFE-347pcf2 to be 6.0 years and the radiative efficiency to be 0.48 W/m
The EPA finds that HFE-347pcf2 is negligibly reactive with respect to its contribution to tropospheric O
Any significant new use of HFE-347pcf2 would need to be evaluated by the EPA, and the EPA will continually review the availability of acceptable substitute chemicals from the list of acceptable compounds under the SNAP program as lower-GWP substitutes become available, which could lead to restrictions on the use of HFE-347pcf2, should safer, lower-GWP substitutes become available. At this time, SNAP does not anticipate further evaluation of HFE-347pcf2 to potentially remove the compound from the list of acceptable substitutes in the precision cleaning end-use largely because the use of the chemical is limited to a small niche market.
The EPA is responding to the petition by revising its regulatory definition of VOC at 40 CFR 51.100(s) to add HFE-347pcf2 to the list of compounds that are exempt from the regulatory definition of VOC because it is less reactive than ethane based on a comparison of k
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. It does not contain any recordkeeping or reporting requirements.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers, and users of the compound from requirements to control emissions of the compound.
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 imposes no enforceable duty on any state, local or tribal governments, or the private sector.
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 direct final rule removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Since HFE-347pcf2 is utilized in specific industrial applications where children are not present and dissipates quickly, there is no exposure or disproportionate risk to children. This action removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
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 District of Columbia Circuit Court within 60 days from the date the final action is published in the
Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For reasons stated in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401, 7411, 7412, 7413, 7414, 7470-7479, 7501-7508, 7601, and 7602.
(s)(1) This includes any such organic compound other than the following, which have been determined to have negligible photochemical reactivity: Methane; ethane; methylene chloride (dichloromethane); 1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22); trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane (HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride (PCBTF); cyclic, branched, or linear completely methylated siloxanes; acetone; perchloroethylene (tetrachloroethylene); 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca); 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb); 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee); difluoromethane (HFC-32); ethylfluoride (HFC-161); 1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 1,1,2,2,3-pentafluoropropane (HFC-245ca); 1,1,2,3,3-pentafluoropropane (HFC-245ea); 1,1,1,2,3-pentafluoropropane (HFC-245eb); 1,1,1,3,3-pentafluoropropane (HFC-245fa); 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 1,1,1,3,3-pentafluorobutane (HFC-365mfc); chlorofluoromethane (HCFC-31); 1 chloro-1-fluoroethane (HCFC-151a); 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a state implementation plan (SIP) revision submitted by the State of Maryland. This revision pertains to Maryland's adoption of the requirements in EPA's control technique guidelines (CTG) for fiberglass boat manufacturing materials. This action is being taken under the Clean Air Act (CAA).
This rule is effective on September 30, 2016 without further notice, unless EPA receives adverse written comment by August 31, 2016. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0304 at
Gavin Huang, (215) 814-2042, or by email at
Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including reasonably available control technology (RACT), for sources of emissions. Additionally, Maryland is in the Ozone Transport Region (OTR) established under section 184(a) of the CAA. Pursuant to section 184(b)(1)(B) of the CAA, all areas in the OTR must submit SIP revisions that include implementation of RACT with respect to all sources of VOCs in the states covered by a CTG.
CTGs are intended to provide state and local air pollution control authorities information that should assist them in determining RACT for VOCs from various sources of fiberglass boat manufacturing. EPA has not published a previous CTG for fiberglass boat manufacturing materials, but did publish an assessment of VOC emissions from fiberglass boat manufacturing in 1990. The 1990 assessment defined the nature and scope of VOC emissions from fiberglass boat manufacturing, characterized the industry, estimated per plant and national VOC emissions, and identified and evaluated potential control options. In 2001, EPA promulgated the National Emission Standards for Hazardous Air Pollutants for Boat Manufacturing, 40 CFR part 63, subpart VVVV (2001 NESHAP). The 2001 NESHAP established organic hazardous air pollutant (HAP) emissions limits based on low-HAP resins and gel coats and low-emitting resin application technology. Several of the air pollution control districts in California have specific regulations that control VOC emissions from fiberglass boat manufacturing operations as part of their regulations for limiting VOC emissions from polyester resin operations. Several other states also have regulations that address VOC emissions from fiberglass boat manufacturing as part of polyester resin operations. After reviewing the 1990 VOC assessment, the 2001 NESHAP, and existing California district and other state VOC emission reduction approaches, and after considering information obtained since the issuance of the 2001 NESHAP, EPA developed a CTG entitled
The CTG for fiberglass boat manufacturing materials provides control recommendations for reducing VOC emissions from the use of gel coats, resins, and materials used to clean application equipment in fiberglass boat manufacturing operations. This CTG applies to facilities that manufacture hulls or decks of boats from fiberglass or build molds to make fiberglass boat hulls or decks. EPA's 2008 CTG recommends that the following operations should be covered: Open molding resin and gel coat operations (these include pigmented gel coat, clear gel coat, production resin, tooling gel coat, and tooling resin); resin and gel coat mixing operations; and resin and gel coat application equipment cleaning operations.
EPA's 2008 CTG recommends the following VOC reduction measures:
On December 23, 2015, the Maryland Department of the Environment (MDE) submitted on behalf of the State of Maryland to EPA SIP revision #15-07 concerning implementation of RACT requirements for the control of VOC emissions from fiberglass boat manufacturing materials. Maryland has adopted EPA's CTG standards for fiberglass boat manufacturing materials, including the emission limits found in Table 1 of this rulemaking action, through a regulation, found at Code of Maryland Regulations (COMAR) 26.11.19 (relating to VOC from specific processes). This SIP revision seeks to add COMAR 26.11.19.26-1 (control of VOC emissions from fiberglass boat manufacturing materials) to the Maryland SIP and also includes an amendment to COMAR 26.11.19.26 (control of VOC emissions from reinforced plastic manufacturing) which was previously approved into the Maryland SIP. In addition to adopting EPA's CTG standards, COMAR 26.11.19.26-1 includes numerous terms and definitions to support the interpretation of the measures, as well as work practices for cleaning, compliance and monitoring requirements, sampling and testing, and record keeping requirements. The amendment to COMAR 26.11.19.26 at COMAR 26.11.19.26A exempts fiberglass boat manufacturing to avoid duplicative or conflicting requirements. Prior to Maryland's new COMAR 26.11.19.26-1, fiberglass boat manufacturing materials were covered under COMAR 26.11.19.26 which did not address fully EPA's CTG requirements. Thus, with COMAR 26.11.19.26-1 now addressing fiberglass boat manufacturing materials, Maryland has revised COMAR 26.11.19.26A to clarify and exempt fiberglass boat manufacturing materials from COMAR 26.11.19.26A as these are now clearly addressed in COMAR 26.11.19.26-1. EPA finds the provisions in COMAR 26.11.19.26-1 identical to the CTG standards for fiberglass boat manufacturing materials and therefore approvable in accordance with sections 172(c)(1) and 184(b)(1)(B) of the CAA.
EPA is approving the Maryland SIP revision adding new regulation COMAR 26.11.19.26-1 and amending COMAR 26.11.19.26, which was submitted on December 23, 2015, because it meets the requirement to adopt RACT for sources covered by EPA's CTG standards for fiberglass boat manufacturing materials. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this
In this rulemaking action, the 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 COMAR 26.11.19.26-1 and an amendment to COMAR 26.11.19.26 into the Maryland SIP. EPA has made, and will continue to make, these documents generally available electronically through
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
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
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 30, 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 this
This action to approve the Maryland SIP revision adding new regulation COMAR 26.11.19.26-1 and amending COMAR 26.11.19.26 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, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing a limited approval and limited disapproval of revisions to Regulation 2, Rules 1 and 2 for the Bay Area Air Quality Management District (BAAQMD or District) portion of the California State Implementation Plan (SIP) submitted on April 22, 2013. These revisions consist of significant updates to rules governing the issuance of permits for stationary sources, including review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act (CAA). Under the authority of the CAA, this action simultaneously approves a local rule that regulates permit requirements for stationary sources and directs the BAAQMD to correct rule deficiencies.
These rules will be effective on August 31, 2016.
The EPA has established docket number EPA-R09-OAR-2015-0280 for this action. Generally, documents in the docket for this action are available electronically at
Shaheerah Kelly, EPA Region 9, (415) 947-4156,
Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The word or initials
(ii) The initials
(iii) The word or initials
(iv) The initials
(v) The initials or words
(vi) The initials
(vii) The initials
(viii) The initials
(ix) The initials
(x) The initials
(xi) The initials
(xii) The initials
(xiii) The initials
(xiv) The initials
(xv) The initials
On August 28, 2015, the EPA proposed a limited approval and limited disapproval of the rules listed in Table 1 that were submitted for incorporation into the California SIP. 80 FR 52236 (Aug. 28, 2015). Our detailed analysis of these rules is provided in the TSD and
We proposed a limited approval because we determined that these rules strengthen the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with CAA section 110, including Parts C and D, and the regulations implementing those laws. The disapproved provisions include the following:
1. The definitions of “agricultural source” in Section 2-1-239 and “large confined animal facility” used in Section 2-1-424 rely on other definitions and provisions in District rules that are not SIP approved. (See our evaluation of Sections 2-1-239 and 2-1-424 in section 6.1.2 of the TSD.)
2. Section 2-1-234, subparagraph 2.2, is deficient because it does not satisfy the PSD provisions at 40 CFR 51.166(a)(7) and 51.166(r)(6) & (7), which require PSD programs to contain specific applicability procedures and recordkeeping provisions. (See our evaluation of Section 2-1-234 in sections 6.1.2 and 7.2.2 of the TSD.)
3. The same deficiency discussed above for the PSD provisions applies to the nonattainment NSR provisions. Section 2-1-234, subparagraph 2.1, does not satisfy the requirements of 51.165(a)(2) and 51.165(a)(6) & (7), which require nonattainment NSR programs to contain specific applicability procedures and recordkeeping provisions. (See our evaluation of Section 2-1-234 in sections 6.1.2 and 7.3.12 of the TSD.)
4. The definition of the term “PSD pollutant” as defined in Section 2-2-223, which is used in place of the federal definition for the term “regulated NSR pollutant,” is deficient
5. Section 2-2-305 does not require written approval of the Administrator prior to using any modified or substituted air quality model as provided in subsection 3.2.2 of 40 CFR 51, appendix W. (See our evaluation of Section 2-2-305 in sections 6.2.3 and 7.2.15 of the TSD.)
6. Section 2-2-611 does not include the requirement regarding “any other stationary source category which as of August 7, 1980, is being regulated under section 111 or 112 of the Act” in the list of source categories that must include fugitive emissions to determine whether a source is a major facility. (See our evaluation of Section 2-2-611 in sections 6.2.6 and 7.3.10 of the TSD.)
7. Section 2-2-401.4 only requires a visibility analysis for sources that are located within 100 km of a Class I area, rather than for any source that “may have an impact on visibility” in any mandatory Class I Federal Area, as required by 40 CFR 51.307(b)(2). (See our evaluation of Section 2-2-401.4 in sections 6.2.4 and 7.3.9 of the TSD.)
8. Section 2-2-411 pertaining to Offset Refunds does not contain any timeframe for obtaining an offset refund. (See our evaluation of Section 2-2-411 in section 6.2.4 of the TSD.)
9. The Offset Program Equivalence demonstration required by Section 2-2-412 does not provide a remedy if the District fails to make the required demonstration. (See our evaluation of Section 2-2-412 in section 6.2.4 of the TSD.)
10. Subsection 2-2-605.2 allows existing “fully-offset” sources to generate ERCs based on the difference between the post-modification PTE and the pre-modification PTE. Emission reductions intended to be used as offsets for new major sources or major modifications are only creditable if they are reductions of actual emissions, not reductions in the PTE of a source. (See our evaluation of Section 2-2-605 in sections 6.2.6, 7.3.3, 7.3.13, and 7.3.22 of the TSD.)
11. Subsection 2-2-606.2, as it applies to major modifications, does not require “fully-offset” sources to calculate the emission increases from a proposed major modification based on the difference between the post-modification PTE and the pre-modification actual emissions as required by 40 CFR 51.165(a)(3)(ii)(J). (See our evaluation of Section 2-2-606 in sections 6.2.6 and 7.3.22 of the TSD.)
In addition, we had proposed a limited disapproval of Section 2-2-308. (See our evaluation of Section 2-2-308 in sections 6.2.3 and 7.4.1 of the TSD.) We also proposed to find the rules were deficient because they did not require a demonstration that a new source meet all applicable SIP requirements as required by 40 CFR 51.160(b)(1). (See section 7.4.1 in the TSD.) For the reasons discussed in sections 2.2 and 2.3 of our Response to Comments document, we are not finalizing our proposed disapproval of Section 2-2-308 or the proposed deficiency based on the requirements of 40 CFR 51.160(b)(1).
Our August 28, 2015 proposed rulemaking provided a 30-day public comment period. The EPA granted a request from BAAQMD to extend the public comment period until November 12, 2015, which is the date the public comment period ended. We received comments from BAAQMD and the California Council for Environmental and Economic Balance (CCEEB).
For the reasons provided in our proposed rule and above in response to comments, pursuant to section 110(k) of the CAA, the EPA is finalizing a limited approval and limited disapproval of the submitted BAAQMD rules, listed in Table 1 above, into the California SIP. Regulation 2, Rules 1 and 2 will become the federally enforceable NSR program in the SIP for BAAQMD subject to an obligation to correct the rule deficiencies listed in Section I of this
We are finalizing our action as proposed, except for the limited disapprovals regarding Sections 2-2-308 and the requirements of 40 CFR 51.160(a) and (b). Accordingly, the EPA will finalize approval of these provisions.
Our limited disapproval action will trigger an obligation for the EPA to promulgate a Federal Implementation Plan under CAA section 110(c) unless California corrects the deficiencies that are the bases for the limited disapproval, and the EPA approves the related rule revisions, within 24 months of the effective date of this final action. In addition, sanctions will be imposed unless the EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act and 40 CFR 52.31.
The District has been implementing the federal PSD permitting program based on a delegation agreement with the EPA pursuant to 40 CFR 52.21(u).
The EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the BAAQMD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.
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, because 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, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
The EPA lacks the discretionary authority to address environmental justice in this rulemaking.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Air pollution control, Carbon monoxide, Environmental protection, 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
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(182) * * *
(i) * * *
(B) * * *
(
(199) * * *
(i) * * *
(A) * * *
(
(202) * * *
(i) * * *
(A) * * *
(
(429) * * *
(i) * * *
(E) Bay Area Air Quality Management District.
(
(
(b) * * *
(16) The PSD program for the Bay Area Air Quality Management District (BAAQMD), as incorporated by reference in § 52.220(c)(429)(i)(E)(
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is approving three State Implementation Plan (SIP) revisions submitted by the State of Vermont. These revisions primarily amend several aspects of Vermont's new source review permitting regulations. The permitting revisions are part of Vermont's major and minor stationary source preconstruction permitting programs, and are intended to align Vermont's regulations with the federal new source review regulations. The revisions also contain amendments to other Clean Air Act (CAA) requirements, including updating the State's ambient air quality standards and certain emissions limits for sources of nitrogen oxides and sulfur
This direct final rule will be effective September 30, 2016, unless EPA receives adverse comments by August 31, 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 No. EPA-R01-OAR-2014-0617 at
Ida E. McDonnell, Manager, Air Permits, Toxics, and Indoor Programs Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, (OEP05-2), Boston, MA 02109-3912, phone number (617) 918-1653, fax number (617) 918-0653, 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.
In the Clean Air Act Amendments of 1990, nonattainment new source review (NNSR) requirements were expanded to include ozone attainment areas within the Ozone Transport Region (OTR). The federal regulations at 40 CFR 51.165 contain the minimum elements that a State's preconstruction permitting program for major stationary sources in nonattainment areas (and in the OTR) must contain in order for EPA to approve the State's program into the SIP.
On November 29, 2005 (70 FR 71612), EPA promulgated the “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule). Among other requirements, the Phase 2 Rule obligated states to revise their Prevention of Significant Deterioration (PSD) programs to explicitly identify nitrogen oxides (NO
On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM
The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM
On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM
Section 109 of the CAA directs EPA to establish NAAQS requisite to protect public health with an adequate margin of safety (primary standard) and for the protection of public welfare (secondary standard). Section 109(d)(1) of the CAA requires EPA to complete a thorough review of the NAAQS at 5-year intervals and promulgate new standards when appropriate. Additionally, Section 107 of the CAA requires the establishment of air quality control regions for the purpose of implementing the NAAQS.
On October 17, 2006 (71 FR 61144), EPA revised the primary and secondary 24-hour NAAQS for fine particulate matter (PM
On March 27, 2008 (73 FR 16436), EPA revised the NAAQS for ozone, setting the level of the primary and secondary 8-hour standard to 0.075 parts per million. This final ozone standard rule became effective on May 27, 2008. On October 26, 2015 (80 FR 65292), EPA revised the NAAQS for ozone, setting the level of the primary and secondary 8-hour standard to 0.070 parts per million. This final ozone standard rule became effective on December 28, 2015.
On November 12, 2008 (73 FR 66964), EPA revised the NAAQS for lead, setting the level of the primary and secondary standard to 0.15 micrograms per cubic meter and revised the averaging time to a rolling 3-month period with a maximum (not-to-be-exceeded) form, evaluated over a 3-year period. The final lead standard rule became effective on January 12, 2009.
On February 9, 2010 (75 FR 6474), EPA revised the NAAQS for oxides of nitrogen as measured by nitrogen dioxide (NO
On June 22, 2010 (75 FR 35520), EPA revised the NAAQS for oxides of sulfur as measured by sulfur dioxide (SO
On January 15, 2013 (78 FR 3086), EPA revised the primary PM
On August 9, 1993, the Vermont Department of Environmental conservation (VT DEC) submitted a revision to its State Implementation Plan (SIP) addressing the nonattainment new source review (NNSR) and reasonable available control technology (RACT) requirements of the 1990 Clean Air Act Amendments (1993 SIP submittal). The submittal consisted of several changes to the State's regulations as well as a SIP narrative. In 1998, EPA approved the revisions dealing with the RACT requirements.
In a letter dated July 13, 2016, Vermont withdrew the SIP narrative and a number of definitions that were either already approved into the SIP or were determined not to be required to be in the SIP. The State also withdrew certain provisions of APCR, Subchapter V, Sections 5-502(3), (6), and (7) because revised versions of those provisions were resubmitted by the State on February 14, 2011. We are therefore not acting on those provisions withdrawn by the State from the 1993 SIP submittal.
EPA is approving the definition of “Federally Enforceable” in Section 5-101 from the 1993 SIP submittal.
On February 14, 2011, the VT DEC submitted a revision to its SIP addressing EPA's Greenhouse Gas Tailoring Rule, certain other aspects of the State's preconstruction permitting requirements, and certain emissions limits for sources of nitrogen oxides and sulfur dioxide (2011 SIP submittal). In 2012, EPA approved the portions of the 2011 SIP submittal that related to EPA's Greenhouse Gas Tailoring Rule.
In a letter dated July 13, 2016, VT DEC withdrew some, but not all, of the revisions included in the 2011 SIP submittal. The State withdrew these provisions for various reasons; either because additional information needs to be submitted before EPA could approve certain provisions into the SIP, Vermont intends in the near future to revise certain provisions and resubmit them to EPA, certain provisions were already in the SIP, or certain provisions were determined not to be required to be in the SIP.
We are approving the following provisions contained in the 2011 SIP submittal:
a. A clarification to the definition of the term “Federal Land Manger.”
b. Provisions containing emissions limits for certain categories of sources that emit NO
c. A provision clarifying what type of operations would be considered asphalt batch plants and would be required to obtain a minor new source review permit for any new or modified source.
d. Provisions clarifying Vermont's authority to request sources to submit written reports.
e. Provisions (further revised in a 2014 SIP submission) providing the State with the authority to require air dispersion modeling on a case-by-case basis for minor sources, and containing the procedures a source must follow when providing an impact analysis on ambient air quality in order for the source to obtain a PSD permit.
f. Provisions requiring sources to obtain a permit prior to construction, and providing the State with the authority to deny a permit for a project that would not be in compliance with
g. Provisions (further revised in a 2014 SIP revision) specifying which entities, including affected states and federal land managers, are to receive notification when a source is subject to major new source review. (We note that one of these provisions is codified in the State's submittal as APCR Section 5-501(6). However, the existing approved SIP already contains an APCR Section 5-501(6) that relates to a different topic. Thus, our approval of this new APCR Section 5-501(6) will appear in the SIP after existing APCR Section 5-501(6). This codification issue arose because the State has amended its regulations over time at the state level and did not submit the entire revised regulation to EPA for approval into the SIP. EPA believes that implementation of the State's permitting program and the enforceability of these provisions as part of that program will not be compromised because the provisions will have been approved by EPA on separate dates. Thus, in future legal proceedings, a complete and accurate citation to one of these two provisions should also include the date upon which EPA approved the provision in question into Vermont's SIP in order to distinguish clearly one from the other.)
h. A provision prohibiting a major new source or major modification from initiating construction prior to obtaining a construction permit.
i. Provisions (further revised in a 2014 SIP submittal) requiring new major sources and major modifications to conduct an air quality impact analysis.
j. Provisions containing requirements for major new sources and major modifications that are subject to nonattainment new source review under Part D of the CAA because Vermont is located within the ozone transport region.
EPA is approving the provisions identified above in subparagraphs a. through j. See EPA's TSD for more detailed information.
On July 25, 2014, the VT DEC submitted a revision to its SIP primarily addressing permitting requirements for PM
We are approving the following contained in the State's 2014 SIP submittal:
a. Nine new and two revised definitions in APC Section 5-101 that were contained in the 2014 SIP submittal. The new definitions are of the terms: (1) “Municipal Waste Combustor Acid Gases (measured as sulfur dioxide and hydrogen chloride)”; (2) “Municipal Waste Combustor Metals (measured as particulate matter)”; (3) “Municipal Waste Combustor Organics (measured as total tetra- through octa-chlorinated debenzo-p-dioxins and dibenzofurans)”; (4) “Municipal Solid Waste Landfill Emissions (measured as nonmethane organic compounds)”; (5) “Particulate Matter Emissions”; (6) “PM
b. A provision which removes an exemption for wood coating operations from the SIP rule for “Other Sources That Emit Volatile Organic Compounds.”
c. Provisions that revise the State's Ambient Air Quality Standards for the criteria air pollutants.
d. Provisions that (as stated earlier) contain requirements for sources to follow when submitting an ambient air impact analysis in relation to a PSD permit. The revision was made to clarify that a source's analysis must follow EPA's procedures at 40 CFR part 51, Appendix W.
e. Provisions that slightly revise the requirements that apply to a new or modified source that otherwise would have been subject to minor new source review to be classified as major based on the impact on ambient air from the source's allowable emissions.
f. Provisions (as stated earlier) require the State to notify certain entities of a proposed PSD permit, including affected states and federal land managers.
g. Provisions (as stated earlier) that require sources subject to PSD to conduct and submit an ambient air quality impact analysis.
h. A provision that requires a source subject to PSD to demonstrate that it will not cause an adverse impact on visibility or any air quality related value in any Class I area.
(i) A provision requiring a source subject to PSD to gather ambient monitoring data representative of the area in which the source is located. (We note that this provision is codified at APCR Section 5-502(8)(b) of the State's regulation and will be approved into the SIP with that same codification. Because the codification of, and provisions contained in, the State's regulations have changed over the years, and the State's 2014 SIP submittal did not include all of the State's current ambient air quality monitoring provisions, APCR Section 5-502(8)(b) will appear after and separately from the already approved SIP revisions in APCR Section 5-502(7), which also relate to ambient air quality monitoring; the one exception is that the current SIP provision at APCR Section 5-502(7)(b) will no longer be in the SIP because it is being replaced by APCR 5-502(8)(b). EPA believes that implementation of the State's permitting program and the enforceability of these provisions as part of that program will not be compromised because the provisions will have been approved by EPA on separate dates. Thus, in future legal proceedings, a complete and accurate citation to these provisions should also include the date upon which EPA approved the provision in question into Vermont's SIP in order to distinguish clearly one from the other.)
Based on the analysis contained in the Technical Support Document, EPA is approving the following sections of Vermont's APCR:
1. “Federal Land Manager”
2. “Federally Enforceable”
3. “Municipal Waste Combustor Acid Gases (measured as sulfur dioxide and hydrogen chloride)”
4. “Municipal Waste Combustor Metals (measured as particulate matter)”
5. “Municipal Waste Combustor Organics (measured as total tetra- through octa-chlorinated debenzo-p-dioxins and dibenzofurans)”
6. “Municipal Solid Waste Landfill Emissions (measured as nonmethane organic compounds)”
7. “Particulate Matter”
8. “Particulate Matter Emissions”
9. “PM
10. “PM
11. “PM
12. “PM
13. “Significant”
1.
2.
3.
1.
2.
3.
4.
5.
6.
7.
8.
9.
1.
2.
3.
1.
2.
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 30, 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.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Vermont's Air Pollution Control Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 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 today's
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.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Placer County Air Pollution Control District (PCAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO
This rule is effective on September 30, 2016 without further notice, unless the EPA receives adverse comments by August 31, 2016. If we receive such comments, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0262 at
Kevin Gong, EPA Region IX, (415) 972 3073,
Throughout this document, “we,” “us,” and “our” refer to the EPA.
Table 1 lists the rules addressed by this action with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board.
On January 19, 2016, the EPA determined that the submittal for VCAPCD Rule 74.15.1 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. On April 19, 2016, the EPA determined that the submittal for PCAPCD Rule 250 met the completeness criteria.
We approved an earlier version of PCAPCD Rule 250 into the SIP on August 23, 1995, in 60 FR 43713, and an earlier version of VCAPCD Rule 74.15.1 into the SIP on May 19, 2014, in 79 FR 28612.
NO
The EPA's technical support documents (TSDs) have more information about these rules.
SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).
SIP provisions cannot include exemptions from emission limitations for emissions during startup, shutdown, and malfunction (SSM) events. Thus, in order to be permissible in a SIP, emission limitations must apply continuously,
Generally, SIP rules must require reasonably available control technology (RACT) for each major source of NO
Guidance and policy documents that we used to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:
We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, SIP relaxations, and requirements for emissions that occur during SSM events. The TSDs have more information on our evaluation.
The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules but are not currently the basis for rule disapproval.
As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rules because we believe they
Please note that if the 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, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the PCAPCD and VCAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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 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 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 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 today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(202) * * *
(i) * * *
(E) * * *
(
(429) * * *
(i) * * *
(A) * * *
(
(472) * * *
(i) * * *
(B) Ventura County Air Pollution Control District.
(
(474) New and amended regulations were submitted on March 11, 2016, by the Governor's designee.
(i) Incorporation by reference.
(A) Placer County Air Pollution Control District.
(
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve the Missouri State Implementation Plan (SIP) revision submitted to EPA by the State of Missouri on August 5, 2014, documenting that the State's existing plan is making adequate progress to achieve visibility goals by 2018. The Missouri SIP revision addressed the Regional Haze Rule (RHR) requirements under the Clean Air Act (CAA or Act) to submit a report describing progress in achieving reasonable progress goals (RPGs) to improve visibility in Federally designated areas in nearby states that may be affected by emissions from sources in Missouri. EPA is taking final action to approve Missouri's determination that the existing Regional Haze (RH) SIP is adequate to meet the visibility goals and requires no substantive revision at this time.
This final rule is effective August 31, 2016.
EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2015-0581. All documents in the docket are listed on the
Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7942, or by email at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
On September 29, 2015, (80 FR 58410), EPA published a notice of proposed rulemaking (NPR) for the State of Missouri. In the NPR, EPA proposed approval of Missouri's progress report SIP, a report on progress made in the first implementation period towards RPGs for Class I areas that are affected by emissions from Missouri sources. This progress report SIP and accompanying cover letter also included a determination that Missouri's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018.
States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress towards the RPGs for each mandatory Class I Federal area within the state and in each mandatory Class I Federal area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). In addition, the provisions under 40 CFR 51.308(h) require states to submit, at the same time as the 40 CFR 51.308(g) progress report, a determination of the adequacy of the state's existing regional haze SIP. The first progress report SIP is due five years after submittal of the initial regional haze SIP. The Missouri Department of Natural Resources (MDNR) submitted its regional haze SIP on August 5, 2009, and a supplement on January 30, 2012, in accordance with 40 CFR 51.308(b).
On February 14, 2014, MDNR provided to the Federal Land Managers a revision to Missouri's SIP reporting on progress made during the first implementation period toward RPGs for Class I areas in the state and Class I areas outside the state that are affected by Missouri sources. Missouri has two Class I areas, Mingo National Wildlife Refuge (Mingo) and Hercules Glades Wilderness Area (Hercules Glades). Missouri also hosts an additional
On August 5, 2014, MDNR submitted the five year progress report SIP to EPA. This progress report SIP and accompanying cover letter also included a determination that the state's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018. EPA proposed approval of Missouri's progress report SIP on the basis that it satisfies the requirements of 40 CFR 51.308(g) and (h).
On August 5, 2014, MDNR submitted a revision to Missouri's regional haze SIP to address progress made toward RPGs of Class I areas in the state and Class I areas outside the state that are affected by emissions from Missouri's sources. This progress report SIP also included a determination of the adequacy of the state's existing regional haze SIP. Missouri has two Class I areas within its borders, and maintains an additional IMPROVE monitoring site. MDNR utilized particulate matter source apportionment (PSAT) techniques for photochemical modeling conducted by the Central Regional Air Planning Association (CENRAP) to identify two Class I areas in nearby Arkansas potentially impacted by Missouri sources: Upper Buffalo Wilderness Area (UBWA) and Caney Creek Wilderness Area (CCWA).
The provisions in 40 CFR 51.308(g) require a progress report SIP to address seven elements. In the NPR, EPA proposed to approve the SIP as adequately addressing each element under 40 CFR 51.308(g). The seven elements and EPA's proposed conclusions in the NPR are briefly summarized below.
The provisions in 40 CFR 51.308(g) require progress report SIPs to include a description of the status of measures in the regional haze implementation plan; a summary of the emissions reductions achieved; an assessment of the visibility conditions for each Class I area in the state; an analysis of the changes in emissions from sources and activities within the state; an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded visibility improvement progress in Class I areas impacted by the state's sources; an assessment of the sufficiency of the regional haze implementation plan to enable states to meet reasonable progress goals; and a review of the state's visibility monitoring strategy. As explained in detail in the NPR, EPA proposed Missouri's progress report SIP addressed each element and therefore satisfied the requirements under 40 CFR 51.308(g).
In addition, pursuant to 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP revision, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. In its progress report SIP, Missouri determined that its regional haze SIP is sufficient to meet its obligations related to the reasonable progress goals for Class I areas affected by Missouri's sources. The State accordingly provided EPA with a negative declaration that further revision of the existing regional haze implementation plan was not needed at this time.
EPA is taking final action to approve Missouri's regional haze five-year progress report and SIP revision, submitted August 5, 2014, as meeting the applicable regional haze requirements as set forth in 40 CFR 51.308(g) and (h).
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 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 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 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, 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
(e) * * *
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to fully approve revisions to the State of Maine's State Implementation Plan (SIP) relating to the regulation of fine particulate matter (that is, particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometer, generally referred to as “PM
This direct final rule is effective September 30, 2016, unless EPA receives adverse comments by August 31, 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 No. EPA-R01-OAR-2014-0291 at
Patrick Bird, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, (mail code OEP05-2), Boston, MA 02109-3912; telephone number: (617) 918-1287; email address:
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.
The State of Maine PSD program is established in 06-096 Code of Maine Regulations (CMR), Chapter 100 (Definitions Regulation), Chapter 113 (Growth Offset Regulation), and Chapter 115 (Major and Minor Source Air Emission License Regulations). Maine implements its PSD program requirements under Chapter 115. Revisions to the PSD program were last approved into the Maine SIP on February 14, 1996 (61 FR 5690). Maine has authority to issue and enforce PSD permits under its SIP-approved PSD program.
On February 14, 2013, the State of Maine Department of Environmental Protection (DEP) submitted a formal revision to its SIP. The SIP revision included the amendments to certain portions of Chapter 100 and Chapter 115 to incorporate PM
EPA performed a review of Maine's proposed revisions and has determined that they are consistent with EPA's PSD program regulations. Maine submitted for approval amendments to the definition of “ambient increment” at Chapter 100.11, amendments to the definition of “baseline concentration” at Chapter 100.16, a new definition for “PM
The previously SIP-approved definition of “ambient increment” has been amended to include PM
Maine's approach in determining baseline emissions for purposes of an increment consumption analysis remains unchanged when compared to the previously approved provisions in Maine's SIP. The SIP revisions we are approving in this document adds PM
The definition of “baseline concentration” at Chapter 100.16 has been amended to include a reference to PM
Maine's SIP revision also adds a definition of “PM
Revisions to the Maine SIP also includes an amendment to the definition of “PM
A portion of the definition of “regulated pollutant” at Chapter 100.149(I) is being amended to clarify what precursor pollutants are to be regulated under Maine's PSD permitting program. Maine's treatment of SO
The definition of “significant emissions increase” at Chapter 100.156 is being revised to include significant emissions increase rates for PM
Chapter 115 has been amended to include revised text to the State's “Innovative control technology waiver” provision at Chapter 115(4)(A)(4)(f)(i)(d)(iii). The innovative control technology provision of EPA's PSD program is an optional element found at 40 CFR 51.166(s) and allows for an owner or operator to request approval for a system of innovative pollution control. Maine's amendment adds a provision which states that PM
Maine has requested an additional provision to be approved into the SIP at Chapter 115(4)(A)(4)(h), entitled “Growth Analysis.” The Maine provision requires a permit applicant to provide an analysis of air quality impacts from all general, commercial, residential, industrial, and other growth in areas affected by a major modification or a major new source. This provision aligns with EPA's regulations at 40 CFR 51.166(n)(3)(ii) and (o)(2). In conjunction with Maine's definition of “ambient increment” at Chapter 100.11, “baseline concentration” at Chapter 100.16, and Maine's air quality impact analyses requirements contained in Chapter 115, Maine's additional provision satisfies requirements to conduct an ambient increment determination, as specified in EPA's regulation at 40 CFR 51.166(k)(1)(ii). We are approving this provision into Maine's SIP.
The State of Maine regulations found within 06-096 CMR Chapters 100 and 115 have been amended numerous times under state law since they were originally approved into the SIP. Not all of these state law amendments were submitted to EPA as formal SIP revisions. These “state-only” amendments resulted in new text being added, existing text being rearranged, and, in some cases, changes to how Maine regulations are codified. Due to such “state-only” amendments to Chapters 100 and 115, there are instances where the state regulation being submitted for approval into the SIP at this time does not mesh precisely within the existing codification structure of the Maine SIP. As a matter of substantive legal requirements, however, the regulations approved into the Maine SIP, including those we are approving today, are harmonious and clear.
Below, we describe exactly how each definition and provision we are approving into Maine's SIP through this document will be incorporated into the SIP. In certain instances, the amendments to the SIP are straightforward and need no detailed explanation. In other instances, however, we explain below for purposes of clarity how the amendments mesh with the existing SIP's structure and codification.
In the existing Maine SIP, the definition of “ambient increment” is codified at Chapter 100.11. The revised definition of “ambient increment” being acted on in this document is also codified at Chapter 100.11. The revised definition will supplant the existing definition at Chapter 100.11.
In the existing Maine SIP, the citations for “baseline concentration,” “PM
The revised definitions of “baseline concentration,” “PM
Specifically, “Chapter 100.16” will now be the correct citation for two different terms, as follows. Prior to our approval in this document of Maine's revise definition of “baseline concentration,” Chapter 100.16 was the SIP citation for the term “Begin actual construction.” After our approval in this document of Maine's revise definition of “baseline concentration,” Chapter 100.16 will be the correct SIP citation for two separate terms and their definitions: (1) “Begin actual construction”; and (2) “Baseline concentration.” EPA believes that implementation of the State's permitting program and the enforceability of these terms as part of that program will not be compromised because the content of the two definitions clearly is different and will have been approved by EPA on separate dates. Thus, in future legal proceedings, a complete and accurate citation to one of these two definitions should also include the date upon which EPA approved the definition in question into Maine's SIP in order to distinguish clearly one from the other. This result was necessary because Maine did not submit its entire revised Chapter 100 to EPA for approval into the SIP.
The revised definition of “PM
The revised definition of “significant emissions increase” that we are approving in this document will be codified in the Maine SIP as Chapter 100.156. Chapter 100.156 will now be the correct citation for two different terms, as follows. Prior to our approval in this document of Maine's revise definition of “Significant emissions increase,” Chapter 100.156 was the SIP citation for the term “Title I Modification.” After our approval in this document of Maine's definition of “Significant emissions increase,” Chapter 100.156 will be the correct SIP citation for two separate terms and their definitions: (1) “Significant emissions increase”; and (2) “Title I Modification.” EPA believes that implementation of the State's permitting program and the enforceability of these terms as part of that program will not be compromised because the content of the two definitions clearly is different and will have been approved by EPA on separate dates. Thus, a complete and accurate citation in a future legal proceeding to one of these two definitions should also include the date upon which EPA approved the specific definition in question into Maine's SIP in order to distinguish clearly one from the other. This result was necessary because Maine did not submit its entire revised Chapter 100 to EPA for approval into the SIP.
The new definition of “PM
With respect to our approval of a paragraph (I) of the definition of “Regulated pollutant” (codified at Chapter 100.149 in the current Maine regulation), we recognize the definition of “Regulated pollutant” already exists in the SIP-approved version of Chapter 100 (codified at Chapter 100.137). The existing SIP-approved definition does not contain the required precursor language for PM
In this SIP action we are also approving an amendment to the State's “Innovative control technology waiver” provision at Chapter 115(4)(A)(4)(f)(i)(d)(iii). We are also approving a new provision entitled “Growth Analysis” at Chapter 115(4)(A)(4)(h). We provide below, an explanation relating to the fact that Maine's Chapter 115 has been restructured in terms of its codification scheme since EPA's last SIP approval action on the chapter. Due to this restructuring, the way in which Maine references provisions in its February 14, 2013 submittal (consistent with the codification scheme contained in current state regulations) is different than how the Maine SIP is structured in terms of its codification scheme.
Chapter 115(4)(A)(4)(f)(i)(d)(iii) (the State's current codification) expands on a list of existing conditions earlier approved by EPA into Maine's SIP concerning prohibitions applicable to an innovative control technology waiver. The provision being approved in this document will be inserted in the Maine SIP by adding the new condition in its appropriate place within the existing regulation earlier approved into the SIP. This will be the case despite the fact that its codification does not align neatly with the codification scheme previously approved for the innovative control technology waiver. Specifically, Chapter 115(4)(A)(4)(f)(i)(d)(iii) will be placed between the Maine SIP's provisions codified at Chapter 115(VI)(B)(1)(b)(iv)(b) and Chapter 115(VI)(B)(1)(b)(iv)(c). This result was necessary because Maine did not submit its entire revised Chapter 115 to EPA for approval into the SIP. EPA believes the difference in codification does not affect the enforceability of this provision and that, as a substantive legal requirement, the new provision meshes as it should with the existing substantive requirements.
In this SIP action we are also approving a revised provision entitled “Growth Analysis,” which is currently codified under state regulation as Chapter 115(4)(A)(4)(h). The provision concerns air quality impact information an applicant must supply to Maine DEP as part of a PSD permit application. This provision is an amendment to an existing provision previously approved into the Maine SIP and codified as Chapter 115(III)(B)(5). Maine DEP and EPA communicated on how best to codify the new provision entitled “Growth Analysis” at Chapter 115(4)(A)(4)(h). Maine DEP concurred with EPA's assessment that the new provision replaces the older provision, which was previously approved into the Maine SIP. In this action, the new provision will supplant the older provision, and the Maine SIP will reflect the updated language by marking
Pursuant to section 110 of the CAA, EPA is approving the provisions described above in this document as submitted in Maine's February 14, 2013 submission to EPA. 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 document withdrawing this 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 30, 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.
In this rulemaking action, the 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 state provisions as described above into the Maine SIP. EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air 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 Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Pennsylvania. This SIP revision amends two regulations to clarify testing and sampling methods for stationary sources of particulate matter (PM) and adds the requirement to measure and report filterable and condensable PM. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on August 31, 2016.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0005. All documents in the docket are listed in the
Maria A. Pino, (215) 814-2181, or by email at
On April 8, 2016 (81 FR 20598), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. In the NPR, EPA proposed approval of amendments to chapters 121 and 139 of title 25, Environmental Protection, of the Pennsylvania Code (25 Pa. Code). The formal SIP revision was submitted by the Commonwealth of Pennsylvania on June 15, 2015.
On June 25, 2015, the Commonwealth of Pennsylvania submitted a formal SIP revision that amends chapters 121 and 139 of 25 Pa. Code. Amendments to 25 Pa. Code section 121.1 in chapter 121 add definitions for the terms “condensable particulate matter” and “filterable particulate matter.” The amendments to 25 Pa. Code section 139.12 in chapter 139 add the requirement to measure and report filterable and condensable PM and explain the compliance demonstration process. The amendment to 25 Pa. Code section 139.53 specifies to whom monitoring reports must be submitted. Other specific requirements of chapters 121 and 139 of 25 Pa. Code and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.
EPA is approving the June 25, 2015 Pennsylvania SIP revision that amends specific provisions within chapters 121 and 139 of 25 Pa. Code. The amendments clarify testing and sampling methods and reporting requirements for stationary sources of PM and add the requirement to measure and report filterable and condensable PM.
In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the revised Pennsylvania regulations, published in the Pennsylvania Bulletin, Vol. 44 No. 15, April 12, 2014, and effective on April 12, 2014. The EPA has made, and will continue to make, these documents generally available electronically through
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
• 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
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 30, 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 rulemaking action, approving amendments to Pennsylvania's regulations regarding testing and sampling methods for stationary sources of PM, including filterable and condensable PM, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the serious nonattainment area reasonable further progress (RFP) plan for the Baltimore serious nonattainment area for the 1997 8-hour ozone national ambient air quality standard (NAAQS). The SIP revision includes 2011 and 2012 RFP milestones, contingency measures for failure to meet RFP, and updates to the 2002 base year inventory and the 2008 reasonable RFP plan previously approved by EPA. EPA is also approving the transportation conformity motor vehicle emissions budgets (MVEBs) associated with this revision. This action is being taken under the Clean Air Act (CAA).
This final rule is effective on August 31, 2016.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0788. All documents in the docket are listed in the
Maria A. Pino, (215) 814-2181, or by email at
On May 2, 2016 (81 FR 26188), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of the “Baltimore Serious Nonattainment Area 0.08 ppm 8-Hour Ozone State Implementation Plan Demonstrating Rate of Progress for 2008, 2011 and 2012 Revision to 2002 Base Year Emissions; and Serious Area Attainment Demonstration, SIP Number: 13-07,” (the Serious Area Plan) submitted by the Maryland Department of the Environment (MDE) on July 22, 2013. The SIP revision submittal included updates to the 2002 base year emissions inventory and 2008 RFP plan that EPA previously approved into the Maryland SIP, RFP for 2011 and 2012, an attainment demonstration, including modeling and weight of evidence, RFP and attainment contingency measures, a reasonably available control measures (RACM) determination, and 2012 MVEBs. After EPA determined Baltimore had attained the 1997 8-hour ozone standard, Maryland, by letter dated October 20, 2015, withdrew the attainment demonstration, including modeling and weight of evidence, contingency measures for attainment, and the RACM analysis from consideration as a SIP revision. Therefore, those elements are not addressed in this rulemaking action.
On June 4, 2010, EPA approved Maryland's moderate area RFP that provided for a 15 percent (%) emissions reduction from 2002 to 2008, contained in the Moderate Area Plan. 75 FR 31709. Maryland, however, needed to update the 2008 target levels for its Serious Area Plan because they are the basis for the new 2011 and 2012 target level calculations for RFP. Maryland also needed to update its 2002 base year inventory, which is the basis for the 2008 target levels and its 15% RFP plan. In the Serious Area Plan, MDE updated its 2002 base year inventory and 15% RFP plan, including 2008 target levels, to reflect changes to EPA's approved model for on-road mobile sector emissions, from the Mobile Source Emission Factor Model (MOBILE) to the Motor Vehicle Emission Simulator (MOVES) model, as well as updates to EPA's NONROAD model.
Serious 8-hour ozone nonattainment areas are subject to RFP requirements in section 182(c)(2)(B) of the CAA that require an average of 3% per year of volatile organic compounds (VOC) and/or oxides of nitrogen (NO
EPA reviewed the RFP plan for the Baltimore Area submitted in the Serious Area Plan, including updates to the 2008 RFP target levels previously SIP approved by EPA, the 2011 and 2012 RFP targets levels, control measures used to meet RFP, and contingency measures for failure to meet the 2012 RFP target, and found them to be approvable. In addition, EPA determined that MDE used acceptable techniques and methodologies to update the 2002 base year and 2008 projected inventories, and to develop the 2011 and 2012 milestone year projected inventories and found them approvable. Furthermore, EPA has found the Baltimore Area's 2012 MVEBs adequate for transportation conformity purposes and approvable. For details on EPA's analysis, see the Technical Support Documents (TSDs) for this rulemaking action, which are available online at
Other specific requirements of the Baltimore Area serious area RFP plan, inventories, RFP contingency measures, and MVEBs, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.
EPA is approving the updates to the 2002 base year inventory, updates to the 2008 RFP plan and associated 2008 projected emissions inventory, the 2011 and 2012 RFP plan and associated projected emission inventories, the contingency measures for failure to meet 2012 RFP, and the 2012 MVEBs for the Baltimore Area submitted in MDE's July 22, 2013 Serious Area Plan. The other parts of the Serious Area Plan were withdrawn by Maryland.
Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, 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: 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
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 30, 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, pertaining to the Baltimore Area serious RFP plan, inventories, RFP contingency measures, and MVEBs, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(p) EPA approves, as a revision to the Maryland State Implementation Plan, updates to the 2002 base year emissions inventories previously approved under paragraph (i) of this section for the Baltimore 1997 8-hour ozone serious nonattainment area (Area) submitted by the Secretary of the Maryland Department of the Environment on July 22, 2013. This submittal consists of updated 2002 base year point, area, non-road mobile, and on-road mobile source inventories in the Area for the following pollutants: Volatile organic compounds (VOC), carbon monoxide (CO) and nitrogen oxides (NO
(cc) EPA approves revisions to the Maryland State Implementation Plan consisting of the serious area reasonable further progress (RFP) plan for the Baltimore 1997 8-hour ozone serious nonattainment area, including 2011 and 2012 RFP milestones, updates to the 2008 RFP milestones previously approved by EPA under paragraph (q) of this section, and contingency measures for failure to meet 2012 RFP, submitted by the Secretary of the Maryland Department of the Environment on July 22, 2013.
(dd) EPA approves the following 2012 RFP motor vehicle emissions budgets (MVEBs) for the Baltimore 1997 8-hour ozone serious nonattainment area, in tons per day (tpd) of volatile organic compounds (VOC) and nitrogen oxides (NO
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Modoc County Air Pollution Control District (MCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern MCAPCD's administrative and procedural requirements to obtain preconstruction permits that regulate emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are approving local rules under the CAA.
This rule is effective on September 30, 2016 without further notice, unless the EPA receives adverse comments by August 31, 2016. If we receive such comments, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0119 at
Ya-Ting (Sheila) Tsai, EPA Region IX, (415) 972-3328,
Throughout this document, “we,” “us,” and “our” refer to the EPA.
Table 1 lists the rules under MCAPCD Regulation II, “Permit System” addressed by this action with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On February 28, 1991, the EPA determined that the submittal for the MCAPCD rules listed in Table 1 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
EPA approved the rules listed in Table 2 into the MCAPCD portion of the California SIP on the dates listed. When the rules listed in Table 1 are approved by EPA, those rules will take the place of the existing SIP approved rules listed in Table 2.
Section 110(a) of the CAA requires States to submit regulations that will assure attainment and maintenance of the National Ambient Quality Air Quality Standards (NAAQS). These rules were developed as part of the local agency's general programmatic requirement to implement the requirement commonly referred to as the minor or general New Source Review (NSR) program. The revisions contained in the submitted rules listed in Table 1 are mostly administrative in nature. Rule 2.3 prohibits the transfer of an Authority to Construct or Permit to Operate without written approval. Rule 2.5 provides the timeline for an Authority to Construct or an application for a Permit to Operate to expire and/or be extended. Rule 2.7 is renumbered from Rule 2.9 and provides additional enforceability by clarifying that equipment cannot be operated contrary to permit conditions specified in the permit. Rule 2.10 is a new rule that allows MCAPCD to require data, sampling, testing, and monitoring to determine a stationary source's emissions. There are no substantive relaxations to these rules.
The TSD, which is available in the docket for today's rulemaking, has more information about these rules.
SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). The submitted rules are revisions
We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. These changes are mostly administrative in nature and their approval will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other CAA application requirement.
The TSD, which is available in the docket for today's rulemaking, has more information on our evaluation.
As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if the 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, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MCAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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 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 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 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 today's
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(6) * * *
(xi) * * *
(D) Previously approved September 22, 1972 in paragraph (c)(6) of this section and now deleted with replacement in paragraph (c)(182)(i)(F)(
(182) * * *
(i) * * *
(F) * * *
(
(
(
(
National Aeronautics and Space Administration.
Final rule.
NASA is issuing a final rule amending the NASA Federal Acquisition Regulation Supplement (NFS) to clarify NASA's award fee process by incorporating terms used in award fee contracting; guidance relative to final award fee evaluations; release of source selection information; and the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts.
Mr. William Roets, telephone 202-358-4483.
NASA published a proposed rule in the
NASA reviewed the public comment in the development of the final rule. A discussion of the comment and the changes made to the rule as a result of this comment is provided, as follows:
No change was made in the final rule in response to the public comment received.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
NASA is amending the NFS to clarify award fee process by incorporating terms used in award fee contracting; guidance relative to final award fee evaluations; release of source selection information; and the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts.
No changes were made to the proposed rule in developing the final rule. No comments from small entities were submitted in reference to the Regulatory Flexibility Act request in the proposed rule. Therefore, the proposed rule has been adopted as final.
NASA does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule imposes no reporting, recordkeeping, or other information collection requirements. There are no significant alternatives that could further minimize the already minimal impact on businesses, small or large.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Accordingly, 48 CFR parts 1816 and 1852 are amended as follows:
51 U.S.C. 20113(a) and 48 CFR chapter 1.
As used in this part—
(f) When FAR clause 52.216-7, Allowable Cost and Payment, is included in the contract, as prescribed at FAR 16.307(a), the contracting officer should include the clause at 1852.216-89, Assignment and Release Forms.
(b)
(c)
(b) * * * For an end item contract, the total amount of provisional payments in a period is limited to a percentage not to exceed 80 percent of the prior interim period's evaluation score, except for the first evaluation period which is limited to 80 percent of the available award fee for that evaluation period.
(c) * * *
(3) Provisional award fee payments will [insert “not” if applicable] be made under this contract pending each interim evaluation. If applicable, provisional award fee payments will be made to the Contractor on a [
The Contractor shall use the following forms to fulfill the assignment and release requirements of FAR clause 52.216-7, Allowable Cost and Payment:
Federal Transit Administration (FTA), DOT.
Final rule.
The Federal Transit Administration (FTA) is issuing a new pass/fail standard and new aggregated scoring system for buses and modified vans (hereafter referred to as “bus” or “buses”) that are subject to FTA's bus testing program, as mandated by Section 20014 of the Moving Ahead for Progress in the 21st Century Act (MAP-21). The pass/fail standard and scoring system address the following categories as required by MAP-21: Structural integrity, safety, maintainability, reliability, fuel economy, emissions, noise, and performance. Recipients of FTA grants are prohibited from using FTA financial assistance to procure new buses that have not met the minimum performance standards established by today's final rule. Finally, FTA is requiring bus manufacturers to provide country-of-origin information for test unit bus components, in lieu of applying Buy America U.S. content requirements to all buses submitted for testing.
The effective date of this rule is October 31, 2016.
For technical information, Michael Baltes, Director, Office of Infrastructure and Asset Innovation, Office of Research, Demonstration and Innovation (TRI), (202) 366-2182,
The purpose of this final rule is to implement minimum performance standards, a scoring system, and a pass/fail threshold for new model transit buses procured with FTA financial assistance authorized under 49 U.S.C. Chapter 53. Consistent with 49 U.S.C. 5318(e), FTA recipients are prohibited from using FTA financial assistance to procure new buses that have not met the minimum performance standards established by this rule. The standards and scoring system address the following categories: Structural integrity, safety, maintainability, reliability, fuel economy, emissions, noise, and performance. Buses must meet a minimum performance standard in each of these categories in order to receive an overall passing score and be eligible for purchase using FTA financial assistance. Buses can achieve higher scores with higher performance in each category, and today's rule establishes a numerical scoring system based on a 100-point scale so that buyers can more effectively compare vehicles.
To minimize disruption to transit vehicle manufacturers, consistent with the proposal, today's rule adopts many of the existing testing procedures and standards used under the current bus testing program. The rule, however, imposes some changes including: (1) New inspections at bus check-in to verify the bus configuration is within its weight capacity rating at its rated passenger load and an inspection to determine if the major components of the test bus match those identified in the Buy America pre-audit report; (2) elimination of the on-road fuel economy testing and substituting the fuel economy results obtained during the emissions test; and (3) revision to the payloading procedure to recognize the manufacturer's “standee” passenger rating. The final rule does not add any new tests to the existing bus testing program—in fact, FTA is eliminating two tests, the on-road fuel economy test, as equivalent data could be derived from the more accurate dynamometer testing, and the shakedown test, which is considered redundant to the structural durability test and no bus models have historically failed this test.
Because FTA provides financial assistance to State and local agencies operating public transportation systems, covering up to eighty-five percent (85%) of a vehicle's capital cost, while the State or local government provides at least fifteen percent (15%) matching share, there is a strong incentive by FTA and local agencies to ensure that those funds are used effectively and efficiently. As part of its stewardship of those funds, Congress directed FTA in 1987 to establish a bus testing program whereby new model buses would first be tested to ensure their ability to withstand the rigors of regular transit service before FTA funds would be spent on those vehicles. In the following years, FTA accumulated comprehensive test data on the scores of buses that had undergone testing, but the program did not assign a comparative ranking to the vehicles. Further, because the program was intended to provide information on a vehicle's performance and Congress did not authorize FTA to use the test data to disqualify a vehicle from participating in FTA-assisted procurements, FTA did not establish a pass/fail performance baseline. Since that time, several tested buses did not meet their expected service lives at the cost of millions of dollars to transit agencies and significant inconvenience to transit riders. In MAP-21, Congress directed FTA to establish a new pass/fail standard for tested buses, including a weighted scoring system that would assist transit bus buyers in selecting an appropriate vehicle. FTA issued the Notice of Proposed Rulemaking (NPRM) for this action on June 23, 2015. Today's final rule establishes a new scoring system and a pass/fail standard for buses tested under FTA's existing bus testing program, as well as making other administrative changes.
Although Section 20014 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 121-141) retained the existing bus testing categories of maintainability, reliability, safety, performance, structural integrity, fuel economy, emissions, and noise in the existing 49 U.S.C. 5318(a), Section 20014 also expanded 49 U.S.C. 5318(e) by adding three new requirements on the use of Chapter 53 funding to acquire new bus models. The first is that new bus models must meet performance standards for maintainability, reliability, performance (including braking performance), structural integrity, fuel economy, emissions, and noise. The second is that new bus models acquired with Chapter 53 funds must meet the minimum safety performance standards established pursuant to section 5329(b). The third is that the new bus model must satisfy an overall pass/fail standard based on the weighted aggregate score derived from each of the existing test categories (maintainability, reliability, safety, performance (including braking performance), structural integrity, fuel economy, emissions, and noise).
Today's rule does not address the minimum safety performance standards for public transportation vehicles required under 49 U.S.C.
Today's rule is taking the following actions, the first of which is required by MAP-21 as part of the new “pass/fail” requirement, and the remainder of which are discretionary actions to strengthen the program:
• Establish testing procedures and establish minimum performance standards, which are generally based upon the pre-MAP-21 tests, and a pass/fail scoring system for new bus models, with a minimum passing score of 60 points. A bus model could receive up to an additional 40 points based on its performance above the proposed minimum performance standard in particular test categories. Buses would need to achieve at least a minimum score in each category in order to pass the overall test and be eligible for procurement using FTA financial assistances.
• Establish check-in procedures, including FTA approval, for new bus models proposed for testing.
• Require transit vehicle manufacturers to submit Disadvantaged Business Enterprise (DBE) goals to FTA prior to scheduling a test.
• Determine a new bus model's total passenger load based on the manufacturer's maximum passenger rating, including accommodations for standees.
• Establish a simulated passenger weight of 150 lbs. for seated and standing (standee) passengers, and a weight of 600 lbs. for passengers who use wheelchairs.
• Require test model buses to identify the country-of-origin for the components of the test vehicle to facilitate a transit agency's ability to compare it with the actual production model.
• The replacement of the on-road fuel economy test with the fuel economy testing already conducted during the emissions test on the chassis dynamometer.
Generally, FTA is adopting the test procedures that were proposed in the NPRM, although FTA, is making a small number of changes to some test procedures as a result of comments received in response to the NPRM. FTA is adding a set of brake stops at gross passenger load as part of the Braking Test; measuring noise levels while traversing road irregularities as part of the Noise Test; and eliminating the Shakedown Test and moving its single point score value into the Structural Durability Test. Further, FTA is not adopting the proposal that the test unit bus must be Buy America-compliant. Instead, FTA only is requiring that the manufacturer provide the country of origin for the test vehicle's major components, which FTA believes will help transit agencies ensure that the tested bus is similar to the bus the will be completed in production. In addition, FTA is making a few non-substantive amendments, replacing the term “grantee” with “recipient” to bring it into conformity with standard FTA usage, and cross-referencing FTA Circular 5010's categorization of a vehicle's useful service life instead of repeating it in the regulatory text.
The NPRM sought comment on establishing testing procedures, performance standards, and a scoring system for remanufactured vehicles sold by third-party vendors and procured using FTA financial assistance. Based on the comments received, FTA has concluded that further consideration is warranted, and therefore, is not extending the bus testing requirement to remanufactured buses through today's final rule. Given the growing investment in Federal and local dollars in remanufactured buses, however, and the emphasis on public transit safety in MAP-21, FTA believes that it is responsible Federal stewardship to ensure that remanufactured buses meet expectations for reliability and durability and will address remanufactured buses in a subsequent rulemaking action.
Table 1 below summarizes the potential benefits and costs of this rule that FTA was able to quantify over 10 years and using a 3 and 7 percent discount rate. Quantified costs stem from shipping buses to the testing facility, manufacturer testing fees, having repair personnel for bus manufacturers available at the testing site, new paperwork requirements, and increases to the resources needed to operate the bus testing program (which represents most of the quantified costs). Unquantified costs include remedial actions to buses that do not pass the proposed test (which may extend to all the buses in a model represented by the tested bus) and potential improvements to buses to obtain a higher testing score. However, given that 41 of 49 buses tested between January 2010 and February 2013 would have satisfied the proposed performance standards without any design changes, FTA believes that the proposed requirements would not drive systemic changes to all transit bus models. Quantified benefits are from a reduction in unscheduled maintenance costs. The total annual program cost impact of this rule is estimated to be $159,369. The total annual program benefit is estimated to be $531,990. The resulting cost and benefits are presented in Table 1.
FTA's grant programs, including those at 49 U.S.C. 5307, 5310, 5311 and 5339, assist transit agencies with procuring buses. The Federal transit program allows FTA to provide up to 85% funding for each bus. In 2013, for example, FTA funds assisted in the procurement of 8,934 new vehicles, of which approximately 5,600 buses and modified vans were covered under the existing testing program. The testing program has its origins in Section 317 of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA, Pub. L. 100-17), which provided that no funds appropriated or made available under the Urban Mass Transportation Act of 1964, as amended, were to be obligated or expended for the acquisition of a new model bus after September 30, 1989, unless a bus of such model had been tested to ensure that the vehicle “will be able to withstand the rigors of transit service” (H. Rept. 100-27, p. 230). In subsection 317(b), Congress mandated seven specific test categories—maintainability, reliability, safety, performance, structural integrity, fuel economy, and noise—augmenting those tests with the addition of braking performance and emissions testing through section 6021 of the Intermodal Surface Transportation Efficiency Act of 1991 (Pub. L. 102-240). These requirements were subsequently codified at 49 U.S.C. 5318.
FTA issued its initial NPRM in May 1989 (54 FR 22716, May 25, 1989) and an interim Final Rule three months later (54 FR 35158, August 23, 1989), establishing a bus testing program that submitted vehicles to seven statutorily-mandated tests resulting in a test report and requiring transit bus manufacturers to submit that completed test report to transit agencies before FTA funds could be expended to purchase those vehicles. Although Congress did not authorize FTA to withhold financial assistance for a vehicle based on the data contained in a test report, FTA expected that the test report would provide accurate and reliable bus performance information to transit authorities that could be used in their purchasing and operational decisions.
This system remained in place for over twenty years. During the intervening period, however, a handful of bus models that had documented problems in their test reports were able to enter transit service, most notably, a fleet of 226 articulated buses that one of the Nation's largest transit agencies ordered in 2001. After paying $87.7M of the $102.1M contract, the transit agency stopped payments in 2005 due to unresolved problems concerning the suspension systems and structural cracks around the articulation joint, near the axles, and in the rear door header, triggering years of litigation. In addition, in 2009, the transit agency abruptly pulled all of these models from service for safety concerns following a structural failure related to the articulation joint, resulting in lengthier and more crowded commutes for thousands of transit riders. In May 2012, a local court ruled that the transit agency could sell the buses for scrap metal, a move that generated only $1.2M for vehicles that had served barely half of their FTA-funded service lives.
In 2012, MAP-21 amended 49 U.S.C. 5318 by adding new requirements to subsection 5318(e),
MAP-21 also amended section 5318(e) to require that new bus models meet the minimum safety performance standards to be established by the Secretary of Transportation pursuant to 49 U.S.C. 5329(b). In the recently-proposed National Public Transportation Safety Plan (81 FR 6372, February 5, 2016), FTA proposed to establish voluntary vehicle performance standards as an interim measure, acknowledging that minimum safety performance standards eventually may be the subject of rulemaking, and sought comment on four questions posed in the proposed Plan.
The primary purpose of today's rule is to establish minimum performance standards, a new bus model scoring system, and a pass/fail standard. In developing the proposals contained in the NPRM, FTA engaged in extensive discussions with transit industry stakeholders through the use of public webinars, teleconferences, and presentations at industry conferences. Participants in these public outreach efforts included transit vehicle manufacturers, component suppliers, public transit agencies, State departments of transportation, and Bus Testing Facility personnel, and their contributions were reflected in the aggregate scoring system and pass/fail criteria contained in the NPRM.
In addition to implementing the statutory mandates, FTA proposed other administrative changes that would adjust the passenger payloading process to better reflect industry practice and ensure that buses tested at the facility comply with FTA Civil Rights and Buy America requirements regarding disadvantaged business enterprises and domestic content, respectively.
Finally, FTA sought comment on establishing a bus testing requirement and scoring system for remanufactured buses sold by third parties and procured using FTA funds.
FTA received a total of 22 comments in response to the NPRM, including comments from transit bus manufacturers, remanufacturers of transit buses, national and state transit associations, and transit agencies procuring transit buses. FTA also received several comments from fire safety advocates and component manufacturers, who urged FTA to adopt fire safety standards for materials used in bus interiors, including bus seats, which exceed Federal Motor Vehicle Safety Standard (FMVSS) 302. As noted above, although Congress directed FTA to establish minimum safety performance standards for vehicles used in public transportation in 49 U.S.C. 5329(b), FTA has not yet initiated such a rulemaking and those comments, however well-intentioned, are beyond the scope of today's regulatory action.
Although today's final rule contains much of what was proposed in the NPRM, FTA is making some changes to the test procedures as a result of comments received in response to the NPRM. FTA is adding a set of brake stops at gross passenger load as part of the Braking Test; measuring noise levels while traversing road irregularities as part of the Noise Test; and eliminating the Shakedown Test and moving its single point score value into the Structural Durability Test. Further, FTA is removing the proposal that the test unit bus be Buy America-compliant, and instead, is only requiring the manufacturer to provide the country of origin for the test vehicle's major components, which FTA believes will help transit agencies ensure that the tested bus is similar to the bus that will be produced and delivered. In addition, FTA is making a few non-substantive technical amendments, replacing the term “grantee” with “recipient” to bring it into conformity with standard FTA usage, and cross-referencing FTA Circular 5010's categorization of a vehicle's useful service life instead of repeating it in the regulatory text.
FTA proposed to amend the purpose of the regulation to reflect a new pass/fail test and scoring system.
FTA proposed no changes, as the requirements of this part continue to apply to recipients of Federal financial assistance under 49 U.S.C. Chapter 53.
FTA proposed changing the definition of
FTA proposed changing the definition of
FTA proposed changing the definition of
With regard to the commenter who sought clarification on the simulated passenger weight, FTA had proposed raising the weight from 150 pounds to 175 pounds in a 2011
Therefore, FTA is adopting this section in the final rule without change.
FTA also posed a series of questions seeking comment on whether remanufactured buses (
One manufacturer of new transit buses, one transit agency, one trade association, and two bus remanufacturers submitted comments, all of whom agreed that remanufactured buses need to meet safety and durability requirements, but disagreeing on the preferred method. The manufacturer of new buses supported the standardized testing of remanufactured buses, believing that “remanufactured buses should undergo the same rigorous testing that new buses and coaches must meet in order to ensure their safety and reliability,” recommending that the final rule include provisions that ensure that the original bus manufacturer is not referenced in a test report to limit confusion and to prevent a company from selling remanufactured vehicles using the original bus manufacturer's name for marketing purposes. In
FTA is also aware that procuring remanufactured buses is being advertised in trade magazines and at trade shows as a less expensive alternative to procuring a newly built bus, and submitting both new and remanufactured vehicles to the same testing program could place both on an equal footing and ensure the safety and reliability of each. Furthermore, the national trade association's comments noted some issues within the trucking industry related to remanufactured equipment that could compromise safety and reliability of vehicles. Given Congressional direction in MAP-21 to augment FTA's safety responsibilities and to strengthen the bus testing program through today's regulatory changes, FTA believes the subject of remanufactured buses should undergo further review and consideration and will address the subject in a later rulemaking.
FTA proposed to amend this section to reflect that the recipient must certify that a bus has received a passing test score, but acknowledging that parties may seek assistance from FTA, consistent with FTA's role in reviewing partial testing requests as described in section 665.11(d). FTA is also removing the term “Grantee” from the section heading and throughout this part, as FTA now uses the term “recipient.”
FTA proposed new entrance requirements for a bus to enter the bus testing program. Before submitting a new bus model for testing, the transit vehicle manufacturer (TVM) would have to submit its disadvantaged business enterprise (DBE) goals to FTA consistent with the Department's DBE regulations in 49 CFR part 26. Test model buses would also need to comply with applicable FMVSS requirements in 49 CFR part 566,
FTA also proposed a technical amendment to section 665.11(g) reflecting the addition of Appendix B to this part, resulting in the relabeling of the former appendix as the new “Appendix A.”
This is a modification from the NPRM, which proposed that all buses submitted for testing meet the domestic content requirements of the FTA Buy America regulation. The primary focus of the proposal was to ensure that the design configuration of the test unit bus matched subsequent production units. However, commenters made FTA aware that the test unit bus may not be fully representative of all production units, and that grantees have the ability to specify changes in a production unit's components and configuration. These changes may subject the bus to additional testing, but that is a decision that the purchaser must knowingly make. In addition, bus models delivered for testing do not always include all of the ancillary systems (seats, wheelchair tie-downs, passenger information systems, etc.) that may well be part of the domestic content calculation of a particular bus procurement but these systems are not evaluated by the bus testing program, nor are they required in order for the vehicle to under testing. Finally, changes in, or the inclusion of, components may also alter a production vehicle's domestic content, and documenting the test unit vehicle's domestic content in a permanent test report may give a false indication of a vehicle's Buy America content. FTA acknowledges that the pre-award and post-delivery audits required by 49 U.S.C. 5323(m) and 49 CFR part 663 are the only acceptable confirmation of a vehicle's Buy America compliance and for that reason, TVMs will not be required to document a vehicle's compliance with Buy America during the check-in process.
However, because the primary objective of the proposed requirement was to ensure that the design configuration of the test unit bus (structure design and materials, axles and brakes, and propulsion system and fuel systems) was representative of the production unit buses that would be delivered to FTA grantees, FTA is requiring TVMs to provide information concerning the source of essential vehicle components so that purchasers will have an effective means of comparing the test unit bus against the specific vehicle they intend to procure.
Lastly, to acknowledge the broader applicability of FTA's service life categories other than simply as a means of determining a vehicle's testing procedure, FTA is removing the list of vehicle service life categories in section 665.11(e) and will instead incorporate the service life categories contained in FTA's Circular 5010.1.
FTA proposed adding language to this section that would require the Bus Testing Facility operator to score the test results using the performance standards and scoring system outlined in Appendix A of this part. FTA also proposed that the Bus Testing Facility operator obtain approval of the Bus Testing Report by the bus manufacturer and by FTA prior to its release and publication. Finally, FTA proposed that the Bus Testing Facility operator make the test results available electronically to supplement the printed copies.
FTA proposed that all requests for testing, including requests for full or partial testing, be submitted to the FTA Bus Testing Program Manager prior to scheduling with the Bus Testing Facility operator. All test requests would provide: a detailed description of the new bus model to be tested, the service life category of the bus, engineering level documentation characterizing all major changes to the bus model, and documentation that demonstrates satisfaction of each one of the testing requirements outlined in section 665.11(a). FTA would review the test request and determine if the bus model is eligible for testing and which tests need to be performed. FTA would prepare a written response to the requester for use in scheduling the required testing with the Bus Testing Facility operator.
FTA proposed that the manufacturer's share of the test fee would be expended first during the testing procedure and that the Bus Testing Facility operator would obtain approval from FTA prior to committing FTA program funds.
FTA did not propose any changes.
FTA proposed additional language for this section to require the Bus Testing Facility operator to inspect the bus model configuration upon arrival to compare it to that submitted in the test request; to compare the gross vehicle weight and gross axle weights to the ratings on the bus; to determine if the bus model can negotiate the test track and maintain proper test speed over the durability, fuel economy and emission drive cycles; and to provide these results to the bus manufacturer and FTA prior to conducting testing using FTA program funds.
FTA also proposed additional language to require the Bus Testing Facility operator to investigate each occurrence of unsupervised maintenance and assess the impact on the validity of the test results and to repeat any impacted test results at the manufacturer's expense. FTA also proposed language to address modifications to bus models undergoing testing. Specifically, FTA proposed that the Bus Testing Facility operator perform or supervise and document the performance of bus modifications only after the modifications have been reviewed and approved by FTA. The language also stated that testing would be halted after the occurrence of unsupervised bus modifications and the Bus Testing Facility operator would not resume testing until FTA has issued a determination regarding the modifications.
In addition, FTA proposed moving the listing of test categories from Appendix A into section 665.27 and assigning performance standards to each of the test categories as MAP-21 requires. FTA proposed amending the Performance Test category by removing the language regarding the Braking Performance Test and moving it into the Safety Test category. FTA also proposed adding the requirement for a review of the Class 1 failures documented in the Reliability Test category to the Safety Test category.
There were nine comments on the
FTA received two comments concerning the
One commenter inquired whether the
One commenter questioned the relevance of the
Another commenter suggested that FTA consider evaluating the corrosion resistance of bus models during the structural durability test. One commenter offered a proposal to evaluate the corrosion resistance of new bus models. FTA considered this proposal and believes that this non-testing based evaluation does not provide sufficient technical analysis on which to base a score, in addition to being outside the scope of this rulemaking.
One commenter proposed that FTA to make bus models available to component suppliers to use for partial testing programs to enable the development of robust aftermarket components and new technology subsystems. While this is an interesting proposal, this is also outside the scope of today's rulemaking and FTA would need a significant increase in funding in order to acquire and maintain a fleet of buses to serve as platforms for the testing of new components and technologies.
There were several comments requesting clarification on the implications of the proposed durability performance standards and suggestions for alternatives methods for evaluating both structural and powertrain durability of new bus models, components, and subsystems.
First, FTA was asked to clarify the types of failures that invoke a failure to meet the durability performance standard and the process for resolving those failures. The commenter wanted to know if there were certain types of failures that would automatically trigger a test restart, if FTA could commit to a response time to provide feedback about the proposed design remedy to resolve a durability failure. The commenter proposed that FTA consider not requiring a mile-for-mile validation of structural durability failures that are not Class 1 or Class 2 level reliability failures through the use of stress and strain measurements and common structure modeling techniques, and suggested that FTA allow the durability test to continue after a durability performance standard failure so that testing can progress while the bus manufacturer prepares the design remedy.
To clarify, then, for the structural durability performance standard, any discontinuity (
If the
FTA will employ the existing partial testing policy for powertrain changes or updates to new bus models that are subject to the Pass/Fail rule. Currently, FTA focuses on the engine, transmission fuel system, and drive axle to assess if partial testing is needed. Once each of these new components has been tested in a bus, FTA allows their use in subsequent bus models without additional testing based on FTA's experience that the replacement of these components is not likely to significantly alter existing test data in the Bus Testing Report. While the scope of the powertrain durability performance standard casts a wider net than the partial testing policy for powertrain changes, bus manufacturers will be allowed to substitute minor powertrain components not currently tracked by the current partial testing policy if a credible analysis is provided that demonstrates the component substitution is durable in a transit service environment and that secondary failures of the primary powertrain components are not induced if the substituted component fails. FTA does not believe that the supply of aftermarket parts available to transit operator for maintaining their buses will be negatively affected by the powertrain durability performance standard. FTA only requires that the buses remain in service for at least their designated service life. Grantees do not have to maintain the original design configuration throughout a vehicle's service life and may replace components and major subsystems over the vehicle's lifespan.
Commenters also sought clarification regarding the inclusion of electric bus model off-board charging equipment in the powertrain durability performance standard. Currently, all battery bus chargers are unique to the bus models. If the charging system fails to perform, the bus can only operate on the remaining charge. For bus fleets that employ bus models designed for overnight charging, FTA assumes that more than one battery charger will be available at the bus depot, providing a charging system redundancy that can be leveraged to maintain bus operations. These battery chargers would not be considered as part of the vehicle's powertrain. For bus models designed specifically for on-route charging, the off-board charging system and the on-board charging system interfaces are considered part of the bus powertrain. Additionally, since all bus charging systems are unique, all electric bus models are subject to the testing requirement. The Bus Testing Facility operator provides access to a high voltage source for the battery charger, while the TVM or component vendor is expected to provide the battery charger with the bus model to be tested. Once battery charging systems for buses become standardized, FTA will pursue their installation at the test site.
Various commenters also proposed alternative durability tests. First, one commenter proposed the use of a risk assessment and field monitoring process for the introduction of new bus technologies on an existing bus model
There were multiple comments related to the
Another commenter suggested that FTA establish a requirement for the use of collision avoidance systems in transit buses, while another recommended that FTA establish crashworthiness test standards for buses. The commenter's recommendation to establish safety performance standards to require collision avoidance systems and crumple zone or other crashworthiness standards on transit buses are not within the scope of the NPRM, as is the proposal to establish braking standards for emergency stops on a grade and the recommendation to adopt performance standards for wheeled mobility device securement devices.
One recommended that the acceleration test be inserted into the
Additional commenters sought clarification on the definition of Class 1 failures. With regard to the commenter who sought clarification on whether structural failures should be addressed as hazards, FTA considers the following types of test incidents as Class 1 reliability failures resulting in a failure to satisfy the
Regarding the proposed testing and performance standards for
One comment to the
FTA does not agree with the commenter's suggestion to ignore the occurrence of flat tires during the test and not count them against the
Two comments to the
FTA will accommodate the request to measure noise levels while the bus traverses road irregularities, as the current audible vibration test is conducted over the road while travelling from the test track to the main maintenance shop area in Altoona. In addition to the over the road segment this general interior noise test will be conducted on the test track. However, there is no minimum performance standard or scoring associated with this test, and noise testing of an electric bus will not be conducted while it is being charged, as it is not directly related to the vehicle's durability or performance.
Two similar comments on the
With regard to the suggestion to conduct acceleration and gradeability tests at the maximum gross passenger load, current tests are conducted at a seated passenger load and there is no technical basis to conduct additional test runs. However, expected performance standards for acceleration and gradeability can be extrapolated
For the check-in procedures outlined in section 665.27(b), FTA has revised the language to provide FTA five business days to review the results from the procedure outlined in 665.27(a) and provide a decision to either start the test or to request clarification about the results of that review. To prevent administrative test delays, the Bus Testing Facility operator has the authority to commence specific tests where FTA does not provide a response within five business days and the performance of those tests is not dependent on FTA's determination.
FTA proposed adding tables as Appendix A to graphically illustrate the new Bus Model Scoring System and the Pass/Fail Standard.
Four commenters expressed a concern that the aggregate score will encourage grantees to use the score blindly and not read the actual content of the test reports. They also expressed a concern that a procurement protest could be filed if they selected a bus model that did not have the highest score of those submitted for bid. In addition, one commenter wanted to know if they would be allowed to apply a different weighting to the scoring system than the weights assigned by FTA.
FTA also received several comments regarding the fuel economy test and the fuel economy scoring system. Two commenters were concerned that the new dynamometer based fuel economy test method will not differentiate the efficiency differences between heating, ventilation, and air conditioning (HVAC) systems installed on the test buses and that the new test methodology does not fully reveal the potential of the new hybrid bus technologies. Two commenters strongly recommended that FTA employ a universal fuel economy scoring system for use with all fuel types, to illustrate the higher fuel economy of electric and hybrid-electric vehicles. Another commenter recommended that the fuel economy scores for 60-foot bus models be adjusted higher by 150 percent to reflect the additional weight of the vehicle.
Based on comments that the
Both the test track and dynamometer-based fuel economy tests do not expressly inhibit engine-off hybrid buses from turning their engines off during the test procedure. Two of the three dynamometer-based test cycles are actual transit duty cycles. Because buses are designed to operate in an efficient manner, a bus should end with the battery state of charge (SOC) at the same level or higher than at the start of the test cycle. This may require the vehicle to idle for an additional time period to restore the battery's SOC.
Several commenters on the proposed fuel economy scoring scale recommended using a single scoring for all fuel types instead of the individual fuel-specific scales proposed in the NPRM. A scale such as Miles per Gallon diesel equivalent (MPGde), conceptually based on the current Miles Per Gallon equivalent (MPGe) scale developed by the Environmental Protection Agency (EPA) for light duty vehicles
FTA strongly believes that given the wide range of fuel types available in the transit bus marketplace, the best and most commonly cited scoring metric for fuel economy is fuel cost per operating mile. However, due to the volatility of fuel prices, regional fuel price variances, and the variance in the availability of various fuels, establishing a standardized baseline for fuel economy test results based on fuel cost per operating mile is inherently problematic for inclusion in the rule.
FTA examined the use of MPGde for the scoring of the fuel economy test results but declines to adopt such an approach for several reasons. First, MPGde does not factor the energy cost efficiency of each fuel type into the calculation. High values of MPGde do not always indicate low overall fuel operating costs which is a top bus performance priority for most agencies. For example, hydrogen fuel cell buses would be expected to have an MPGde rating more than twice as high as a diesel bus but the fuel currently costs more than three times that of diesel fuel on a gallon equivalent basis resulting in higher overall fuel operating costs. Similarly, CNG buses would be expected to have an MPGde rating about 20% lower than that of a diesel bus but the fuel itself costs less than half that of diesel making it a popular choice in many locales even when the capital and operating costs of the fueling stations are considered.
Second, MPGde does not account for the significant fueling infrastructure costs of most alternative fuels introduced into transit fleets, nor does MPGde account for the significant differences in maintenance facilities, maintenance practices and tools, and maintainer skill sets required for each fuel type. While the choice between gasoline and diesel is not an issue for private owners of passenger vehicles, who can take the vehicle to any number of car dealers or maintenance garages, switching or adding a new bus fuel type
Third, MPGde only assesses the fuel efficiency of the vehicle from the vehicle's fuel tank to the wheels and not the true “well-to-wheels” efficiency of the complete fuel chain. This methodology generates an artificially high MPGde value for electric vehicles as most of the costs of generating and delivering electric “fuel” take place off-board the vehicle at the electric powerplant and along the power transmission lines. For instance, a bus can consume compressed natural gas (CNG) and achieve one MPGde value, versus burning CNG to fuel an electric powerplant and delivering the electricity over wires to charge an electric bus, with a resultant MPGde rating approximately five to six times greater than that of the CNG bus due primarily to the efficiency accounting methodology and not the actual well-to-wheels fuel efficiency. Therefore, FTA believes that adopting MPGde is not a suitable scoring mechanism to indicate the Federal priorities for energy sustainability to the transit industry.
Lastly, if FTA scored the fuel economy results using MPGde, the resulting inflated electric vehicle MPGde values will require expanding the range of the scoring scale significantly. Due to the current scale having a fixed number of points, the resolution of the scale will be reduced, making all bus models of the same size class and fuel type look identical with respect to the score. This defeats the primary purpose of the program which is to provide agencies objective information for the selection of bus models during the bus procurement process.
By maintaining the separate proposed fuel economy scoring scales, the well-to-wheels efficiency differences of different fuel types are neutralized as each fuel type has its own scale. This approach highlights the efficiency differences between bus models of the same fuel type which is very useful for transit agencies while still supporting the Federal interest in reducing transportation fuel consumption.
This rulemaking is a significant regulatory action within the meaning of Executive Orders 13563 and 12866, and FTA has determined that it is also significant under DOT regulatory policies and procedures because of substantial State, local government, congressional, and public interest. However, this rule is not “economically significant,” as defined in Executive Order 12866.
This section explains the purpose of the bus testing program, why FTA is establishing a pass/fail requirement with a point-based system and how that fits within FTA's mission, the alternative scoring systems FTA considered, the logic that FTA employed in determining the weights assigned to the different test categories, FTA's rationale for prioritizing use of the manufacturer's portion of the testing fee, and FTA's analysis of the costs and benefits.
While reviewing and developing scoring systems to meet the MAP-21 requirements, FTA considered a number of alternatives. To begin, FTA considered the importance of the entirety of the safety tests within the existing Bus Testing Program. Noting how integral to the bus testing program each of the testing categories were, FTA wanted to ensure that the buses that were tested, at the very least, met all of the minimum performance standards, regardless of the scoring system that FTA adopted. Stated differently, FTA resolved that the scoring system would have to preclude a bus model from passing the test solely by attaining additional points in other categories (while failing in one or more key categories), resulting in points greater than the threshold that FTA set for the pass/fail standard. FTA also wanted to ensure that whatever system FTA adopted would be relatively simple, straightforward, and easy to understand, and provide meaningful information to both transit agencies and manufacturers. Using these principles, FTA assessed various systems that FTA could adopt or implement to meet the requirements of MAP-21.
FTA first considered various qualitative systems. FTA reviewed a “five-tier” based system, as used by other organizations. FTA liked the simplicity of the five-star system for grading buses that met the minimum requirement of passing all of the tests. While FTA's review of various systems indicated that such qualitative systems are simple to implement, they can be very subjective. Moreover, the five-tier system did not capture the level of detail and differential information that FTA desired to convey to the transit industry and manufacturers. FTA also reviewed and considered an “A to D” based grading system. Again, while this would have resulted in a fairly simple and straightforward system, it did not convey the level of information or the level of detail to inform transit agencies who are purchasing the vehicles. Thus, FTA rejected these two qualitative systems. While they were simple, straightforward, and easy to understand, they did not meet FTA's goal of providing meaningful information to transit agencies and manufacturers.
Next, FTA considered quantitative point-based systems with the minimum threshold requirement of passing all of the tests. FTA considered various scales. FTA rejected a 50-point based scale for lack of simplicity. FTA considered an 80-point scale (10 points for each test category) and rejected it because it did not capture the relative importance or weighting of the categories. FTA also considered various levels for the pass/fail threshold for each of the scales. Finally, FTA settled on a 100-point scale due to its universality. FTA initially considered a minimum passing score of 40 points, believing the 60 discretionary points would provide purchasers with a greater range with which to evaluate different vehicles, but given the grading systems used in academia and other applications, FTA established a minimum passing threshold of 60 points with 40 discretionary points. This quantitative scale with the minimum threshold of passing all of the tests met all of FTA's goals that the scoring system is relatively simple, straightforward, and easy to understand, and will provide meaningful information to transit agencies and manufacturers.
After deciding to propose a 100-point scale for the Bus testing program, FTA had to weigh the importance of each of the test categories within the Bus testing program. FTA determined that the Structural Integrity and Safety Tests were the most important components of the bus testing program, as both were critical to the operation of the vehicle while on the road. Therefore, FTA allotted 50 of the total 100 points to these two tests. Between the two tests, FTA determined that while both were
Within the Structural Integrity Test are six sub-test categories, of which five are pass/fail tests. Thus, FTA allotted one point each for the Distortion, Static Towing, Dynamic Towing, Hydraulic Jacking, and Hoisting Tests. The Durability Test, as the most important component of the Structural Integrity Test, received the remaining 25 points. Within these Durability Tests, FTA allocated 13 points to structural durability and 12 points to powertrain durability due to importance to meeting service life requirements.
For the Safety sub-tests, FTA determined that the Hazards Test was as important as the other two sub-tests within this category and allotted it one-half of the total 20 points. The Stability and Braking Tests have three component tests that require a pass/fail grading and one that is a performance based allocation. FTA valued each of these tests equally, based on their relative importance when evaluating a vehicle. Hence, FTA apportioned 25 percent of the remaining points to each test.
For the Maintainability and Reliability Tests, FTA assessed the Maintainability Test to be twice as important as the Reliability Test, but both tests to be as important as the remaining tests, as both directly affect a transit agency's operating costs. Maintainability reflects how much time and resources the transit agency should expect to budget over the course of a vehicle's service life to perform routine maintenance, and reliability reflects a vehicle's ability to meet its service life requirements without significant service disruptions caused by unscheduled maintenance. For ease of assigning points within the weightings, FTA allocated 24 points (or just less than one-half of the 50 points for the remaining tests) to these two tests. Hence, within FTA's weighting scheme, the Maintainability Test received 16 percent of the total points and the Reliability Test received eight percent of the total points.
Assessing the remaining four tests, Fuel Economy, Emissions, Noise, and Performance Tests, FTA determined that each was about the same level of importance based on comments from transit agencies, but that two, Fuel Economy and Emissions Tests, were slightly more important in terms of helping a transit agency to budget for a vehicle's fuel consumption over its lifetime and in calculating the vehicle's incremental benefit towards meeting Clean Air Act requirements. Therefore, as opposed to assigning equal weighting to each of the remaining tests, FTA allocated slightly more weight to the Fuel Economy and Emissions Tests than the Noise and Performance Tests. This resulted in a point allocation of seven points or 27 percent of the remaining points for to the Fuel Economy and Emissions Tests and an average of six points or 23 percent of the remaining points for the Noise and Performance Tests.
The Fuel Economy Test allocates points on a performance basis determined by the output of the type of fuel. For the Emissions Tests, FTA apportioned one-half point for each of the five Emissions Tests that are already regulated by other Federal agencies and the remaining points for the Carbon Dioxide Test. This weighting for carbon dioxide captures the importance of alternative fuels with respect to greenhouse gases.
The Noise Test allocates points on a performance basis determined by the level of decibels produced. FTA weighted the Interior Noise and Exterior Noise Test equally (3.5 points each). As for the Performance Test, FTA weighted the bus model performance on a 2.5 percent grade and the performance during the acceleration test as being equally important and together being worth 60 percent of the five points available. The performance on a 10 percent grade was valued at 40 percent of the Performance test category.
In order to preclude buses that are not ready to complete the bus testing program, the NPRM proposed to exhaust the manufacturer's 20 percent contribution for the total testing fee prior to employing funds from FTA's 80 percent contribution. This prioritizing of the manufacturers' portion of the test fee will incentivize transit vehicle manufacturers to ensure that the bus model submitted will, at a minimum, clear the initial check-in inspections, passenger loading, and initial testing operations. FTA estimates that, depending on the bus model, the first 20 percent of the testing fee should encompass the check-in process and threshold tests.
Based on previous testing experience, FTA determined that bus models that fail these preliminary activities will not perform well during subsequent tests. This policy minimizes the cost to FTA from bus models submitted before they are ready for testing, thereby conserving Federal resources and ensuring that the proper incentive structures are in place. This will encourage manufacturers to ensure their product can withstand the rigors of bus testing. FTA would continue to pay the 80 percent Federal match for one retest and would contribute no Federal funds for a third test or subsequent tests required to achieve a passing test score.
This section contains FTA's analysis of the benefits and costs of the rule. FTA estimated the rule's benefits and costs through two steps: First, FTA identified and analyzed the costs of the existing Bus testing program (baseline). Second, FTA identified and analyzed the expected costs of the rule relative to the baseline. To determine the benefits and costs of the rule, FTA reviewed the test data for all bus models that had been tested at the Bus Testing Facility between January 2010, when the Environmental Protection Agency's (EPA's) current Diesel Engine Emission Standards took effect (40 CFR part 86, as amended, 66 FR 5002, January 18, 2001), and February 2013, when this rulemaking commenced. The resulting diesel engine exhaust after-treatment systems used to satisfy the 2010 requirements potentially impacted the reliability, maintainability, fuel economy, emissions, and noise test results for a portion of the 49 buses. Additionally, there were OEM product updates to many of the medium-duty chassis used by the five, seven, and ten year service life buses that would affect test results in several test categories.
A total of 49 buses had been tested over this period. FTA believes that the test results for these 49 bus models tested since 2010 provide the best available source of information for determining the cost of the rule on future buses that would be tested (and the models they represent). All bus types and sizes are included in the group of 49, from accessible vans to 60-foot articulated bus models. Buses fueled by compressed natural gas (CNG), electricity, diesel, gasoline, and liquefied petroleum gas (LPG) are included within this group. To determine qualitative benefits, FTA also examined the test results and the transit experience with two bus models tested (prior to 2010) that failed to meet their service life requirements in transit service. FTA has placed the test results of the buses that it analyzed in the docket for this rulemaking.
A summary of the results of FTA's cost analysis is presented in Table H-1. Eight categories of costs were identified, analyzed, and annualized:
1.
2.
3.
4.
5.
6.
7.
8.
FTA estimates the costs of the existing bus testing program are as follows: The maximum total annual program cost is $3,750,000 with 80 percent ($3,000,000) covered by FTA and 20 percent ($750,000) paid by transit vehicle manufacturers who submit a bus for testing. The current Paperwork Reduction Act reportable costs are $9,016. The estimated annual cost of on-site manufacturer personnel is estimated to be $76,673. The value of the parts consumed in the testing process is unknown. The annual estimated bus shipping costs for the current program is $63,743. The estimated annual test bus depreciation cost is $1,591,714. The annual cost of bus design improvements as a result of the current program is assumed zero as there are no minimum performance standards requirements. The estimated annual cost of the current bus testing program is $5,491,146.
To estimate the costs of the rule, FTA first identified all of the bus models in the study group of 49 that would fail to meet the standards.
The most significant cost caused by this rule will be the cost of retesting to validate a vehicle that has failed one or more tests. Eight of the 49 buses FTA examined failed one or more tests. The below table identifies each test these buses would have failed, thus triggering the retesting requirement. FTA also estimated the costs for retesting, and in two cases, the cost of a potential remedy.
In addition, the testing fees for the program are broken down by test and sub-test categories, with manufacturers charged fees only for the tests that must be conducted. The fee schedule for the current program is shown in Table H-3.
The results from this analysis indicate that annual costs would increase in several areas. The impact of the performance standards to the FTA program cost is estimated to be $133,448. A total of $33,362 in additional manufacturer's fees would be collected from the additional tests. An additional paperwork burden of $767
FTA also analyzed the costs of the discretionary program changes in the final rule. The rule will modify two test procedures (payloading and emissions test payload) but will not impose any completely new testing procedures, and will eliminate the On-Road Fuel Economy Test procedure, thereby reducing the aggregate costs currently associated with the bus testing program. For the revised bus payloading procedures, FTA estimates an annual decrease in the program cost of $294 and a decrease in testing fees of $74. These are a result of labor cost savings from loading the mid-sized buses with fewer or no simulated standee passengers. FTA estimates an increase in the annual paperwork burden of $1,488 from the increased manufacturer labor required to determine and report to FTA the total passenger capacity of new bus models submitted to the program. The only other cost introduced by the revised bus payloading procedures is the requirement to add a placard on the interior bulkhead of the bus identifying the maximum standee passenger rating in 2 inch or taller letters. FTA estimates the annual cost impact to new bus models is $58,038. This cost analysis is presented in Table H-3.
The annual cost savings of eliminating the on-road fuel economy test is $64,000 for the FTA program and $16,000 in manufacturer test fees. FTA estimates that 15 on-road fuel economy tests would be eliminated annually and the cost of the dynamometer based fuel economy test is already captured in the cost for the emissions test. One full electric bus is expected to be tested annually. Although electric bus models do not need to undergo emissions testing, the cost for conducting one electric bus fuel economy test was retained.
FTA is also changing the bus passenger load for the emissions test from 2/3 seated load weight to full seated load weight. FTA estimates a cost reduction of $470 for the FTA program portion and $118 in reduced fees to the manufacturers. The cost savings is derived from eliminating the labor of unloading and reloading 1/3 of the seated passenger load as all of the other non-durability performance tests are conducted at full seated load.
The program entrance requirements are expected to increase the annual FTA program costs by $2,654 and require $664 in additional manufacturer costs. The additional costs are a result of the bus configuration inspections conducted at bus check-in. The details of this cost analysis are outlined in Table H-5.
The revisions to the test scheduling process are expected to increase the annual paperwork burden to bus manufacturers by $1,322. The test entrance requirements review milestone is not expected to add any costs to the program as only FTA will be reviewing the results of the check-in process and determining the outcome of the milestone review.
Lastly, the annual cost of the penalty for unauthorized maintenance and modification is estimated to be $800 for the FTA program cost portion and $200 in fees to the manufacturers. The costs
The total annual cost of the Bus Test Program is estimated to be $5,650,515 given the changes made under this rule. The current Bus Test Program incurs annual costs of $5,494,146. The incremental cost of the rule is anticipated to be $159,369 per year for the new bus models.
A summary of the estimated annual benefits of the Bus testing program is presented in Table H-6. FTA has identified and analyzed seven categories of program benefits:
1.
2.
3.
4.
5.
6.
7.
FTA was unable to provide monetized benefits for many of the benefit categories. For many of the categories where FTA believes there are benefits but was unable to quantify, the result is identified as “unknown”. For categories where FTA believes there is no benefit, the result was identified as “0”. The benefits of a greater probability of bus models meeting their service life was quantified, but only to inform FTA's qualitative assumptions.
Overall, FTA believes that the current program provides potential benefits in all of the seven categories identified when the information generated by the program is used in the procurement decision process. FTA did not receive comments to the docket challenging or questioning these benefits, but FTA believes that adopting these minimum performance standards will reduce safety risks, reduce unscheduled maintenance, and ensure a greater probability of a bus model meeting its expected service life.
FTA is not able to provide a monetized value for the safety risk reduction. Further, FTA estimated benefits of bus models meeting their service life requirements, but FTA used this to inform FTA's qualitative assumption that there would be aggregate benefits to the industry. FTA did not include this in FTA's quantitative calculations because FTA was uncertain of the potential aggregate savings on a year-to-year basis into the future as the industry adapts to today's rulemaking. The results of this analysis are presented in Table H-7.
The analysis presented in Table H-7 used the 2013 transit bus procurement data outlined in Table 9A in the FY 2013 FTA statistical summaries by bus size category and quantity. This analysis also estimated the average cost of a bus model in each size category using the cost information in Table 9A. FTA then determined the quantity of bus models tested in each of the size categories from 2010-2012 (49 buses total) and the number of those that failed the proposed durability performance standard (6). FTA estimated the quantity of bus models sold in 2013 that would have been restricted from FTA recipients in each bus size category. This estimate assumes that 20 percent of the bus models sold in 2013 were bus models tested between 2010 and 2012. The other 80 percent of the sales were assumed to consist of existing bus models tested prior to 2010. FTA then estimated the projected quantity of failing buses by applying a ratio of the number of tested buses that would fail the proposed durability standard by the number of bus models tested in that size category to 20 percent of the 2013 bus sales figures. This resulting quantity of buses was multiplied by the average monetary value of that bus size category and divided by two to obtain the average amount of service life value lost assuming that each of the failed buses only satisfied 50 percent of their service life requirement. FTA notes that this analysis assumes that all six models were not modified by the manufacturer prior to procurement, as the agency has no information concerning whether or not any modifications did in fact occur. If modifications did occur, then the potential benefits discussed here may be overstated.
FTA notes here that although FTA conducted this analysis, FTA did not include these values in its quantitative calculation of benefits. FTA conducted this analysis to inform FTA's qualitative assumption of potential benefits. FTA found, as shown above in Table H-6, that the potential for a major cost reduction for the industry is great, but FTA is uncertain of the potential aggregate savings on a year-to-year basis into the future as the industry adapts to the new requirements.
As another baseline, the lost service life value of two tested bus models known to have failed in service but outside the study window from 2010-2012 was also estimated. The results of this analysis are presented in Table H-8. Again, while FTA performed this analysis, FTA did not include these values in FTA's quantitative calculation of benefits. FTA used this analysis to inform FTA's qualitative assumption of potential benefits. FTA found again, as shown in Table H-8, that the potential for a major cost reduction for the industry is great, but FTA is uncertain of the potential aggregate savings on a year-to-year basis into the future as the industry adapts to the new requirements.
FTA, though, was able to quantify benefits provided by the durability performance standards in the form of reduced unscheduled maintenance, which FTA estimates to be $531,990 per year. FTA was only able to estimate the reduction in labor costs and not the associated reduction in the costs of replacement components. The basis for the reduction in labor costs was the estimated reduction in unscheduled maintenance hours after the design remedies for structural and powertrain durability were applied to the failing bus models identified in the study group. The results of this analysis are presented in Table H-9.
FTA believes the scoring system will provide benefits in the areas of reduced unscheduled maintenance, reduced safety risk, with the faster comprehension of test results, and provide industry motivation to seek bus models with higher test scores.
FTA is confident the revisions to the bus pay loading procedures that require the posting of the maximum rated standee passenger load on the interior bus bulkhead will provide benefits in the areas of greater probability of a bus meeting its service life requirements, reduced amounts of unscheduled maintenance, reduced safety risk, and greater understanding of the total rated bus passenger capacity.
FTA believes that eliminating the current on-road fuel economy test and only publishing the fuel economy test results from the dynamometer based test will provide recipients more realistic and reliable test results than the current on-road fuel economy test. Having only one set of fuel economy test results will also eliminate the potential confusion to recipients and manufacturers with respect to the scoring of the test results. FTA was unable to quantify the benefits, beyond the program cost reduction, of eliminating the on-road fuel economy test.
Regarding the revision to the bus passenger load for the emissions testing to seated load weight instead of the 2/3 seated load weight that was unique in the emission test, the benefit of this change is a minor cost reduction from the reduced labor of unloading and loading 1/3 of the seated load weight just for this test. FTA does not expect any other benefits from this approach.
The entrance requirements are expected to provide benefits with reduced safety risk, greater awareness and accuracy of the bus passenger capacity, greater understanding of Buy America implications on bus configurations with respect to major components, and prevention of unnecessary retesting due to bus production configuration anomalies discovered during or after the test is completed.
The primary benefit of the revisions to the scheduling of testing requirements is that the process will be the same whether it is a request for full testing or partial testing. By establishing a single point of entry for the program there will be less confusion about the program requirements and the process and consistency in the resulting determinations.
The benefit of the test requirements review milestone is a program event that will deliver the benefits of the bus entrance requirements. This milestone will provide all testing stakeholders (manufacturer, Bus Testing Facility operator, FTA, and potential purchasers) a clear understanding of a new bus model's program eligibility and readiness for testing.
The penalty for unauthorized maintenance and modification is the repeat of all potentially affected tests. This rule provides benefits in all the categories identified except with the “simplified test scheduling and elimination of unnecessary testing” category.
The annual incremental cost of the rule is $159,369 and the quantified annual benefit of future bus tests is expected to be $531,990, giving an annual net benefit of $372,621. The costs and benefits of the rule are expected to be the same each year into the future.
Using a 3 and 7 percent discount rate over a ten-year analysis period for the annual costs and benefits developed above, the Net Present Value of the changes encompassed within this rule would yield a net benefit of $3,178,533 at 3 percent discount rate and $2,617,134 at 7 percent discount rate, as shown in Table H-14.
This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”'). This rule does not include any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 and because this rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.
The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each agency to analyze regulations and proposals to assess their impact on small businesses and other small entities to determine whether the rule or proposal will have a significant economic impact on a substantial number of small entities. Although the testing requirement imposes compliance costs on the regulated industry, including bus manufacturers who meet the definition of “small businesses,” Congress has authorized FTA to pay 80% of the bus manufacturer's testing fee, defraying the direct financial impact on these entities. FTA has estimated the additional costs and the projected benefits of this rule and certifies that this rule would not have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532,
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), a Federal agency must obtain approval from OMB before conducting or sponsoring a collection of information as defined by the PRA. Because today's regulation contains a new provision that would require manufacturers to provide technical specifications regarding their vehicles to FTA in order to receive approval to proceed with testing, FTA submitted a revised information collection estimate to OMB and invited comment on the information collection burden estimate published in the NPRM.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.
The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to consider the consequences of major federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. FTA has determined that this rulemaking is categorically excluded pursuant to 23 CFR 771.118(c)(4).
Anyone is able to search the electronic form for all comments received into any of FTA's dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” and DOT Order 5610.2(a), “Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (see,
FTA evaluated this rule under the Executive Order, the DOT Order, and the FTA Circular. Environmental justice principles, in the context of establishing a quantitative scoring system for public transit vehicles, fall outside the scope of applicability.
Nothing inherent in today's regulation would disproportionately impact minority or low income populations, as the primary parties affected by this rule are those transit vehicle manufactures who would be subject to the bus testing procedures and the new quantitative scoring system. FTA has determined that the regulation would not cause disproportionately high and adverse human health and environmental effects on minority or low income populations.
Buses, Grant programs—transportation, Public transportation, Motor vehicle safety, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Transit Administration revises 49 CFR Part 665 as set forth below:
49 U.S.C. 5318 and 49 CFR 1.91.
An applicant for Federal financial assistance for the purchase or lease of buses with funds obligated by the FTA shall certify to the FTA that any new bus model acquired with such assistance has been tested and has received a passing test score in accordance with this part. This part contains the information necessary for a recipient to ensure compliance with this provision.
This part shall apply to an entity receiving Federal financial assistance under 49 U.S.C. Chapter 53.
As used in this part—
(1) For those vehicles that are not manufactured on a third-party chassis, a change in a vehicle's engine, axle, transmission, suspension, or steering components;
(2) For those that are manufactured on a third-party chassis, a change in the vehicle's chassis from one major design to another.
(1) Has not been used in public transportation service in the United States before October 1, 1988; or
(2) Has been used in such service but which after September 30, 1988, is being produced with a major change in configuration or a major change in components.
(a) In each application to FTA for the purchase or lease of any new bus model, or any bus model with a major change in configuration or components to be acquired or leased with funds obligated by the FTA, the recipient shall certify that the bus was tested at the Bus Testing Facility and that the bus received a passing test score as required in this part. The recipient shall receive the appropriate full Bus Testing Report and any applicable partial testing report(s) before final acceptance of the first vehicle.
(b) In dealing with a bus manufacturer or dealer, the recipient shall be responsible for determining whether a vehicle to be acquired requires full testing or partial testing or has already satisfied the requirements of this part. A bus manufacturer or recipient may request guidance from FTA.
(a) In order to be tested at the Bus Testing Facility, a new model bus shall—
(1) Be a single model that complies with NHTSA requirements at 49 CFR part 565
(2) Have been produced by an entity whose Disadvantaged Business Enterprise DBE goals have been submitted to FTA pursuant to 49 CFR part 26;
(3) Identify the maximum rated quantity of standee passengers on the interior bulkhead in 2 inch tall or greater characters;
(4) Meet all applicable Federal Motor Vehicle Safety Standards, as defined by the National Highway Traffic Safety Administration in part 571 of this title; and
(5) Be substantially fabricated and assembled using the techniques, tooling, and materials that will be used in production of subsequent buses of that model with the manufacturing point of origin for the bus structure, the axles, the foundation brakes, the propulsion power system and auxiliary power systems (engine, transmission, traction batteries, electric motor(s), fuel cell(s)), and the primary energy storage and delivery systems (fuel tanks, fuel injectors & manifolds, and the fuel injection electronic control unit) identified in the test request submitted to FTA during the scheduling process.
(b) If the new bus model has not previously been tested at the Bus Testing Facility, then the new bus model shall undergo the full tests requirements for Maintainability, Reliability, Safety, Performance (including Braking Performance), Structural Integrity, Fuel Economy, Noise, and Emissions Tests.
(c) If the new bus model has not previously been tested at the Bus Testing Facility and is being produced on a third-party chassis that has been previously tested on another bus model at the Bus Testing Facility, then the new bus model may undergo partial testing in place of full testing.
(d) If the new bus model has previously been tested at the Bus Testing Facility, but is subsequently manufactured with a major change in chassis or components, then the new bus model may undergo partial testing in place of full testing.
(e) Buses shall be tested according to the service life requirements identified in the prevailing published version of FTA Circular 5010.
(f) Tests performed in a higher service life category (
(a) The operator of the Bus Testing Facility shall implement the performance standards and scoring system set forth in this part.
(b) Upon completion of testing, the operator of the facility shall provide the scored test results and the resulting test report to the entity that submitted the bus for testing and to FTA. The test report will be available to recipients only after both the bus manufacturer and FTA have approved it for release. If the bus manufacturer declines to release the report, or if the bus did not achieve a passing test score, the vehicle will be ineligible for FTA financial assistance.
(c)(1) A manufacturer or dealer of a new bus model or a bus produced with a major change in component or configuration shall provide a copy of the corresponding full Bus Testing Report and any applicable partial testing report(s) to a recipient during the point in the procurement process specified by the recipient, but in all cases before final acceptance of the first bus by the recipient.
(2) A manufacturer who releases a report under paragraph (c)(1) of this section also shall provide notice to the operator of the facility that the test
(d) If a tested bus model with a Bus Testing Report undergoes a subsequent major change in component or configuration, the manufacturer or dealer shall advise the recipient during the procurement process and shall include a description of the change. Any party may ask FTA for confirmation regarding the scope of the change.
(e) A Bus Testing Report shall be available publicly once the bus manufacturer makes it available during a recipient's procurement process. The operator of the facility shall have copies of all the publicly available reports available for distribution. The operator shall make the final test results from the approved report available electronically and accessible over the internet.
(f) The Bus Testing Report and the test results are the only official information and documentation that shall be made publicly available in connection with any bus model tested at the Bus Testing Facility.
(a) All requests for testing, including requests for full, partial, or repeat testing, shall be submitted to the FTA Bus Testing Program Manager for review prior to scheduling with the operator of the Bus Testing Facility. All test requests shall provide: A detailed description of the new bus model to be tested; the service life category of the bus; engineering level documentation characterizing all major changes to the bus model; and documentation that demonstrates satisfaction of each one of the testing requirements outlined in section 665.11(a).
(b) FTA will review the request, determine if the bus model is eligible for testing, and provide an initial response within five (5) business days. FTA will prepare a written response to the requester for use in scheduling the required testing.
(c) To schedule a bus for testing, a manufacturer shall contact the operator of the Bus Testing Facility and provide the FTA response to the test request. Contact information and procedures for scheduling testing are available on the operator's Bus Testing Web site,
(d) Upon contacting the operator, the operator shall provide the manufacturer with the following:
(1) A draft contract for the testing;
(2) A fee schedule; and
(3) The test procedures for the tests that will be conducted on the vehicle.
(e) The operator shall process vehicles FTA has approved for testing in the order in which the contracts are signed.
(a) The operator shall charge fees in accordance with a schedule approved by FTA, which shall include different fees for partial testing.
(b) Fees shall be prorated for a vehicle withdrawn from the Bus Testing Facility before the completion of testing.
(c) The manufacturer's portion of the test fee shall be used first during the conduct of testing. The operator of the Bus Testing Facility shall obtain approval from FTA prior to continuing testing of each bus model at the Bus testing program's expense after the manufacturer's fee has been expended.
A manufacturer shall be responsible for transporting its vehicle to and from the Bus Testing Facility at the beginning and completion of the testing at the manufacturer's own risk and expense.
(a) Upon receipt of a bus approved for testing the operator of the Bus Testing Facility shall:
(1) Inspect the bus design configuration and compare it to the configuration documented in the test request;
(2) Determine if the bus, when loaded to Gross Weight, does not exceed its Gross Vehicle Weight Rating, Gross Axle Weight Ratings, or maximum tire load ratings;
(3) Determine if the bus is capable of negotiating the durability test track at curb weight, seated load weight, and Gross Vehicle Weight;
(4) Determine if the bus is capable of performing the Fuel Economy and Emissions Test duty cycles within the established standards for speed deviation.
(b) The operator shall present the results obtained from the activities of 665.27(a) and present them to the bus manufacturer and the FTA Bus Testing Program Manager for review prior to initiating testing using the Bus testing program funds. FTA will provide a written response within five (5) business days to authorize the start of testing or to request clarification for any discrepancies noted from the activities of 665.27(a). Testing can commence after five (5) business days if FTA does not provide a response.
(c) The operator shall perform all maintenance and repairs on the test vehicle, consistent with the manufacturer's specifications, unless the operator determines that the nature of the maintenance or repair is best performed by the manufacturer under the operator's supervision.
(d) The manufacturer shall be permitted to observe all tests. The manufacturer shall not provide maintenance or service unless requested to do so by the operator.
(e) The operator shall investigate each occurrence of unauthorized maintenance and repairs and determine the potential impact to the validity of the test results. Tests where the results could have been impacted must be repeated at the manufacturer's expense.
(f) The operator shall perform all modifications on the test vehicle, consistent with the manufacturer's specifications, unless the operator determines that the nature of the modification is best performed by the manufacturer under the operator's supervision. All vehicle modifications performed after the test has started will first require review and approval by FTA. If the modification is determined to be a major change, some or all of the tests already completed shall be repeated or extended at FTA's discretion.
(g) The operator shall halt testing after any occurrence of unapproved, unauthorized, or unsupervised test vehicle modifications. Following an occurrence of unapproved or unsupervised test vehicle modifications, the vehicle manufacturer shall submit a new test request to FTA that addresses all the requirements in 665.11 to reenter the Bus testing program.
(h) The operator shall perform eight categories of tests on new bus models. The eight tests and their corresponding performance standards are described in the following paragraphs.
(1)
(i) The Maintainability Test Report shall include the frequency, personnel hours, and replacement parts or supplies required for each action during the test. The accessibility of selected components and other observations that could be important to a bus purchaser shall be included in the report.
(ii) The performance standard for Maintainability is that no greater than 125 hours of total unscheduled maintenance shall be accumulated over the execution of a full test.
(2)
(3)
(i) The functionality and performance of the service, regenerative (if applicable), and parking brake systems shall be evaluated at the test track. The test bus shall be subjected to a series of brake stops from specified speeds on high, low, and split-friction surfaces. The parking brake shall be evaluated with the bus parked facing both up and down a steep grade. There are three performance standards for braking. The stopping distance from a speed of 45 mph on a high friction surface shall satisfy the bus stopping distance requirements of FMVSS 105 or 121 as applicable. The bus shall remain within a standard 12-foot lane width during split coefficient brake stops. The parking brake shall hold the test vehicle stationary on a 20 percent grade facing up and down the grade for a period of 5 minutes.
(ii) A review of all the Class 1 failures that occurred during the test shall be conducted as part of the Safety Test. Class 1 failures include those failures that, when they occur, could result in a loss of vehicle control; in serious injury to the driver, passengers, pedestrians, or other motorists; and in property damage or loss due to collision or fire. The performance standard is that at the completion of testing with no uncorrected Class 1 failure modes. A failure is considered corrected when a design or component modification is validated through sufficient remaining or additional Reliability Tests in which the failure does not reoccur over a number of miles equal to or greater than the additional failure up to 100% of the durability test mileage for the service life category of the tested bus.
(4)
(5)
(i)
(i) Normal operation of the steering mechanism and;
(ii) Operability of all passenger doors, passenger escape mechanisms, windows, and service doors. A water leak test shall be conducted in each suspension travel condition. The performance standard shall be that all vehicle passenger exits remain operational throughout the test.
(2) Using a load-equalizing towing sling, a static tension load equal to 1.2 times the curb weight shall be applied to the bus towing fixtures (front and rear). The load shall be removed and the two eyes and adjoining structure inspected for damages or permanent deformations. The performance standard shall be that no permanent deformation is experienced at static loads up to 1.2 times the vehicle curb weight.
(3) The bus shall be towed at CW with a heavy wrecker truck for 5 miles at 20 mph and then inspected for structural damage or permanent deformation. The performance standard shall be that the vehicle is towable with a standard commercial vehicle wrecker without experiencing any permanent damage to the vehicle.
(4) With the bus at CW, probable damages and clearance issues due to tire deflating and hydraulic jacking shall be assessed. The performance standard shall be that the vehicle is capable of being lifted with a standard commercial vehicle hydraulic jack.
(5) With the bus at CW, possible damages or deformation associated with lifting the bus on a two post hoist system or supporting it on jack stands shall be assessed. The performance standard shall be that the vehicle is capable of being supported by jack stands rated for the vehicle's weight.
(i)
(ii) [Reserved]
(6)
(i) The Fuel Economy Test shall be designed only to enable FTA recipients to compare the relative fuel economy of buses operating at a consistent loading condition on the same set of typical transit driving cycles. The results of this test are not directly comparable to fuel economy estimates by other agencies, such as the National Highway Traffic Safety Administration (NHTSA) or U.S. Environmental Protection Agency (EPA) or for other purposes.
(ii) The performance standard for fuel economy shall be the prevailing model year fuel consumption standards for heavy-duty vocational vehicles outlined in the NHTSA's Medium and Heavy-Duty Fuel Efficiency Program (49 CFR part 535).
(7)
(8)
(i) The Emissions Test is not a certification test, and is designed only to enable FTA recipients to relatively compare the emissions of buses operating on the same set of typical transit driving cycles. The results of this test are not directly comparable to emissions measurements reported to other agencies, such as the EPA, or for other purposes.
(ii) The emissions performance standard shall be the prevailing EPA emissions requirements for heavy-duty vehicles outlined in 40 CFR part 86 and 40 CFR part 1037.
The Bus Model Scoring System shall be used to score the test results using the performance standards in each category. A bus model that fails to meet a minimum performance standard shall be deemed to have failed the test and will not receive an aggregate score. For buses that have passed all the minimum performance standards, an aggregate score shall be generated and presented in each Bus Testing Report. A bus model that just satisfies the minimum baseline performance standard and does not exceed any of the standards shall receive a score of 60. The maximum score a bus model shall receive is 100. The minimum and maximum points available in each test category shall be as shown below in Table A. The Bus Testing report will include a scoring summary table that displays the resulting scores in each of the test categories and subcategories. The scoring summary table shall have a disclaimer footnote stating that the use of the scoring system is not mandatory, only that the bus being procured receive a passing score.
The passing standard shall be a score of 60. Bus models that fail to meet one or more of the minimum baseline performance standards will be ineligible to obtain an aggregate passing score.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, NMFS, issue a final rule to list three foreign marine angelshark species under the Endangered Species Act (ESA). We considered comments submitted on the proposed listing rule and have determined that the sawback angelshark (
This final rule is effective August 31, 2016.
Chief, Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.
Maggie Miller, NMFS, Office of Protected Resources (OPR), (301) 427-8403.
On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species or subpopulations as threatened or endangered under the ESA. This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 24 of the species and 3 of the subpopulations and announced the initiation of status reviews for each of the 24 species and 3 subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On July 14, 2015, we published a proposed rule to list the sawback angelshark (
We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).
Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any State or foreign nation to protect the species.
In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we complete a status and extinction risk assessment. In assessing extinction risk for these three angelshark species, we considered the demographic viability factors developed by McElhany
We then assess efforts being made to protect the species to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species.
In response to our request for comments on the proposed rule, we received information and/or comments from three parties. Two of the commenters presented general information on threats or provided data that were already cited, discussed, and considered in the draft status review report (Miller 2015) or the proposed rule (80 FR 40969; July 14, 2015). Summaries of the substantive public comments received, and our responses, are provided below, with references to our prior documents where relevant.
Based on our comprehensive review of the literature, the Jones
The commenter mentioned that the climate change threat was only assessed for
The commenter also asserts that our expected decrease in the angelshark species' overlap with commercially-targeted species, and the projected increase in protected angelshark range, are unlikely to occur, and speculates that the three angelshark species will be unable to migrate to avoid the effects of climate change. In the proposed rule, we cited findings from the Jones
As already thoroughly discussed in the proposed rule and draft status review for these angelshark species, we agree that overutilization is a significant threat that has led to
In addition to requesting public comment on our proposed rule, we also directly solicited comments from the foreign ambassadors of countries where the three
We reviewed, and incorporate as appropriate, scientific data from references that were not previously included in the draft status review report (Miller 2015) and proposed rule (80 FR 40969; July 14, 2015). We also incorporate, as appropriate, relevant information received as communications during the public comment process. We include the following references and communications, which, together with previously cited references, represent the best available scientific and commercial data on
The status review for the three angelshark species was conducted by a NMFS biologist in the Office of Protected Resources. In order to complete the status review, we compiled information on the species' biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. Prior to publication of the proposed rule, the status review was subjected to peer review. Peer reviewer comments are available at
This status review report provides a thorough discussion of the life history, demographic risks, and threats to the three angelshark species. We considered all identified threats, both individually and cumulatively, to determine whether these angelshark species respond in a way that causes actual impacts at the species level. The collective condition of individual populations was also considered at the species level, according to the four viable population descriptors discussed above.
Based on the best available scientific and commercial information described or referenced above, and included in the status review report, we have determined that the sawback angelshark (
Next we consider whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species. The comments that we received on the proposed rule and the additional information that became available since the publication of the proposed rule did not change our conclusions regarding any of the section 4(a)(1) factors or their interactions for these species. In fact, the majority of the new information received (Maynou
None of the information we received from public comment on the proposed rule affected our extinction risk evaluations of these three angelshark species. We note that based on comments from Dr. Ramadan (pers. comm. 2016), we no longer find it likely that the
While this information has been used to provide minor updates to our status review report, our evaluations and conclusions regarding extinction risk for these species remain the same. Therefore, we incorporate herein all information, discussion, and conclusions, with the minor updates noted above, on the extinction risk of the three angelshark species in the status review report (Miller 2016) and proposed rule (80 FR 40969; July 14, 2015).
Finally, we considered conservation efforts to protect each species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species' status is improved. While none of the information we received from public comment on the proposed rule affected our conclusions regarding conservation efforts to protect the three angelshark species, we have updated the status review report (Miller 2016) to reflect the information provided by ElasmoCan during the public comment period on their conservation initiatives in the Canary Islands (ElamoCan pers. comm. 2016). We incorporate herein all information, discussion, and conclusions on the protective efforts for the three angelshark species in the status review report (Miller 2016) and proposed rule (80 FR 40969; July 14, 2015).
We have reviewed the best available scientific and commercial information, including the petition, the information in the status review report (Miller 2016), the comments of peer reviewers, public comments, and information that has become available since the publication of the proposed rule. Based on the best available information, we find that all three
Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 U.S.C. 1538). In addition, recognition of the species' plight through listing promotes conservation actions by Federal and State agencies, foreign entities, private groups, and individuals. Because the ranges of these three species are entirely outside U.S. jurisdiction, the main effects of these endangered listings are prohibitions on take, including export and import.
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations, because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions.
Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12 (h)).
The best available scientific and commercial data as discussed above identify the geographical areas occupied by
On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA. Because we are listing the three
(1) Possessing, delivering, transporting, or shipping any individual or part (dead or alive) taken in violation of section 9(a)(1);
(2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual or part, in the course of a commercial activity;
(3) Selling or offering for sale in interstate or foreign commerce any individual or part, except antique articles at least 100 years old; and
(4) Importing or exporting these angelshark species or any part of these species.
We emphasize that whether a violation results from a particular activity is entirely dependent upon the facts and circumstances of each incident. Further, an activity not listed may in fact constitute or result in a violation.
Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9: (1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species; and (2) continued possession of parts that were in possession at the time of listing. Such parts may be non-commercially exported or imported; however the importer or exporter must be able to provide evidence to show that the parts meet the criteria of ESA section 9(b)(1) (
A complete list of the references used in this final rule is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, this final rule is exempt from review under Executive Order 12866 and the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required.
Endangered and threatened species, Exports, Imports, Transportation.
For the reasons set out in the preamble, 50 CFR part 224 is amended as follows:
16 U.S.C. 1531-1543 and 16 U.S.C. 1361
(h) The endangered species under the jurisdiction of the Secretary of Commerce are:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is issuing regulations under the Tuna Conventions Act to implement Resolution C-15-04 (
This rule is effective August 1, 2016.
Copies of the Regulatory Impact Review and other supporting documents are available via the Federal eRulemaking Portal:
Rachael Wadsworth, NMFS, West Coast Region, 562-980-4036.
On April 22, 2016, NMFS published a proposed rule in the
The final rule is implemented under the Tuna Conventions Act (16 U.S.C. 951
This rule implements Resolution C-15-04 for U.S. commercial fishing vessels used in the IATTC Convention Area and prohibits any part or whole carcass of a mobulid ray caught by vessels owners or operators in the IATTC Convention Area from being retained on board, transshipped, landed, stored, sold, or offered for sale. The rule provides that the crew, operator, and owner of a U.S. commercial fishing vessel must promptly release unharmed, to the extent practicable, any mobulid ray (whether live or dead) caught in the IATTC Convention Area as soon as it is seen in the net, on the hook, or on the deck, without compromising the safety of any persons. If a mobulid ray is live when caught, the crew, operator, and owner of a U.S. commercial fishing vessel must follow the requirements for release that are incorporated into regulatory text. Regulations at 50 CFR 300.25 already required purse seine vessels to release all rays, except those being retained for consumption aboard the vessel, as soon as practicable after being identified on board the vessel during the brailing operation. This rule revises regulations at 50 CFR 300.25 to specify that there are other regulatory release requirements specifically for mobulid rays, as described below.
The rule provides an exemption in the case of any mobulid ray caught in the IATTC Convention Area on a purse seine vessel that is not seen during fishing operations and is delivered into the vessel hold. In this circumstance, the mobulid ray may be stored on board and landed, but the vessel owner or operator must show the whole mobulid ray to the on-board vessel observer at the point of landing for recording purposes, and then dispose of the mobulid ray at the direction of the responsible government authority. In U.S. ports, the responsible governmental authority is the NOAA Office of Law Enforcement divisional office nearest to the port or other authorized personnel. Mobulid rays that are caught and landed in this manner may not be sold or bartered, but may be donated for purposes of domestic human consumption consistent with relevant laws and policies.
In addition, this rule would also revise related codified text for consistency with the recent amendments to the Tuna Conventions Act made by Title II of Public Law 114-81, effective on November 5, 2015 (Tuna Conventions Act of 1950). The rule updates the purpose and scope for 50 CFR part 300, subpart C, by clarifying that the regulations in the subpart are issued under the “amended” authority of the Tuna Conventions Act of 1950, and that the regulations implement “recommendations and other decisions” of the IATTC for the conservation and management of stocks of “tunas and tuna-like species and other species of fish taken by vessels fishing for tunas and tuna-like species” in the IATTC Convention Area. The rule also updates the definitions description at § 300.21 to clarify that the terms defined in § 300.2 include terms defined in the Antigua Convention. The rule also revises the description in § 300.25, which states how NOAA implements IATTC recommendations and decisions through rulemaking, to clarify that the Secretary, in consultation with the Secretary of State and, with respect to enforcement measures, the U.S. Coast Guard on behalf of the Secretary of the Department of Homeland Security, may promulgate such regulations as may be necessary to carry out U.S. international obligations.
In addition, to improve the readability of the regulatory text, this action moves several paragraphs of regulatory text related to bycatch in § 300.25(e) to a new section (§ 300.27) that is dedicated to incidental catch and retention requirements. Several paragraphs in the prohibitions at § 300.24 are updated for consistency with the new section.
NMFS received three letters in response to the proposed rule during the
In § 300.27(g), the description of responsible government authority in U.S. ports was revised to clarify that the responsible governmental authority in U.S. ports is the NOAA Office of Law Enforcement divisional office nearest to the port. Previously the language specified the Western Division and Pacific Island Division, which may be too limiting to vessels landing in ports outside of these regions. In addition, the language within the same paragraph is revised to clarify that the observer should be shown the whole mobulid ray to the observer at the point of landing specifically for recording purposes rather than for other purposes.
The NMFS Assistant Administrator has determined that this rule is consistent with the Tuna Conventions Act and other applicable laws. This rule has been determined to be not significant for purposes of Executive Order 12866. Additionally, although there are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act (PRA), existing collection-of-information requirements still apply under the following Control Numbers: 0648-0148, 0648-0214, and 0648-0593. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid Office of Management and Budget control number.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. On December 29, 2015, the NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016. Id. at 81194.
The certification under the Regulatory Flexibility Act was developed for this regulatory action at the proposed rule stage using SBA's former size standards. Thus, NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly regulated by this regulatory action are commercial finfish fishing businesses. The new standard could result in a few less commercial finfish businesses being considered small. However, NMFS has determined that the new size standard does not affect its underlying analysis and, thus, NMFS has not changed its decision to certify this regulatory action.
As described in the proposed rule, the small entities that would be affected by this action are U.S. commercial fishing vessels that may be used for IATTC fisheries in the IATTC Convention Area (
NMFS considers all entities subject to this action to be small entities as defined by both the former, lower size standards and the revised size standards. Because each affected vessel is a small business, this proposed action is considered to equally affect all of these small entities in the same manner. This action is not expected to change the typical fishing practices of affected vessels or the income of U.S. vessels because these vessels do not target mobulid rays, and do not commonly catch mobulid rays, even incidentally. The action is not expected to have a significant economic impact on substantial number of small entities. Accordingly, vessel income is not expected to be altered as a result of this rule. This action is not likely to increase the economic or record keeping and reporting burden on U.S. vessel owners and operators.
Further details on the factual basis for the certification were published in the proposed rule (April 22, 2016, 81 FR 23669) and are not repeated here. No comments were received regarding the certification. Therefore, the certification published with the proposed rule that states this rule is not expected to have a significant economic impact on a substantial number of small entities is still valid. As a result, a regulatory flexibility analysis was not required and none was prepared.
The Assistant Administrator for Fisheries has determined that good cause exists under 5 U.S.C. 553(d)(3) to waive the requirement for a 30-day delay in effectiveness. If this rule were subject to the 30-day delay in effectiveness, the United States would not be able to satisfy its international obligations to implement legally binding IATTC Resolution C-15-04 by August 1, 2016, which is the effective date specified in the resolution. Additionally, the rule does not require the regulated entities to undertake actions (such as purchasing equipment, re-writing software, creating new reporting sheets, or training in new skills) in order to come into compliance with this rule prior to the effective date. As soon as the rule is filed with the Office of the Federal Register, notice will be sent to inform members of the tuna-fishing industry.
Fish, Fisheries, Fishing, Fishing vessels, International organizations, Marine resources, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:
16 U.S.C. 951
The regulations in this subpart are issued under the authority of the Tuna Conventions Act of 1950, as amended, (Act) and apply to persons and vessels subject to the jurisdiction of the United States. The regulations implement recommendations and other decisions of the Inter-American Tropical Tuna Commission (IATTC) for the conservation and management of stocks of tunas and tuna-like species and other species of fish taken by vessels fishing for tunas and tuna-like species in the IATTC Convention Area.
In addition to the terms defined in § 300.2, in the Act, the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention), and the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention), the terms used in this subpart have the following meanings. If a term is defined differently in § 300.2, in the Act, or in the Antigua Convention, the definition in this section shall apply.
(e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught by a fishing vessel of the United States of class size 4-6 using purse seine gear in the Convention Area as required under § 300.27(a).
(f) When using purse seine gear to fish for tuna in the Convention Area, fail to release any non-tuna species as soon as practicable after being identified on board the vessel during the brailing operation as required in § 300.27(b).
(h) Fail to use the sea turtle handling, release, and resuscitation procedures in § 300.27(c).
(t) Use a U.S. fishing vessel to fish for HMS in the Convention Area and retain on board, transship, land, store, sell, or offer for sale any part or whole carcass of an oceanic whitetip shark (
(w) Set or attempt to set a purse seine on or around a whale shark (
(x) Fail to release a whale shark encircled in a purse seine net of a fishing vessel as required in § 300.27(f).
(cc) To retain on board, transship, store, land, sell, or offer for sale any part or whole carcass of a mobulid ray, as described in § 300.27(g).
(dd) Fail to handle or release a mobulid ray as required in § 300.27(h).
The revision reads as follows:
(a)
(a)
(b)
(c)
(1) Whenever a sea turtle is sighted in the net, a speedboat shall be stationed close to the point where the net is lifted out of the water to assist in release of the sea turtle;
(2) If a sea turtle is entangled in the net, net roll shall stop as soon as the sea turtle comes out of the water and shall not resume until the sea turtle has been disentangled and released;
(3) If, in spite of the measures taken under paragraphs (c)(1) and (c)(2) of this section, a sea turtle is accidentally brought on board the vessel alive and active, the vessel's engine shall be disengaged and the sea turtle shall be released as quickly as practicable;
(4) If a sea turtle brought on board under paragraph (c)(3) of this section is alive but comatose or inactive, the resuscitation procedures described in § 223.206(d)(1)(i)(B) of this title shall be used before release of the turtle.
(d)
(e)
(f)
(g)
(h)
(1) No mobulid ray may be gaffed, no mobulid ray may be lifted by the gill slits or spiracles or by using bind wire against or inserted through the body, and no holes may be punched through the bodies of mobulid ray (
(2) Applicable to purse seine operations, large mobulid rays must be brailed out of the net by directly releasing the mobulid ray from the brailer into the ocean. Large mobulid rays that cannot be released without compromising the safety of persons or the mobulid ray before being landed on deck, must be returned to the water as soon as possible, either utilizing a ramp from the deck connecting to an opening on the side of the boat, or lowered with a sling or net, using a crane if available. The minimum size for the sling or net must be at least 25 feet in diameter.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for dusky rockfish in the West Yakutat District of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2016 total allowable catch of dusky rockfish in the West Yakutat District of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), July 27, 2016, through 2400 hours, A.l.t., December 31, 2016.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2016 total allowable catch (TAC) of dusky rockfish in the West Yakutat District of the GOA is 275 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of dusky rockfish in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 270 mt, and is setting aside the remaining 5 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for dusky rockfish in the West Yakutat District of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for dusky rockfish in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 26, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific ocean perch in the West Yakutat District of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2016 total allowable catch of Pacific ocean perch in the West Yakutat District of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), July 27, 2016, through 2400 hours, A.l.t., December 31, 2016.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2016 total allowable catch (TAC) of Pacific ocean perch in the West Yakutat District of the GOA is 2,847 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of Pacific ocean perch in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,747 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the West Yakutat District of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific ocean perch in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 26, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Colorado Potato Administrative Committee, Area No. 2 (Committee) to revise the grade requirement currently prescribed for 1
Comments must be received by September 30, 2016.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Sue Coleman, Marketing Specialist, or Gary D. Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email:
Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposal is issued under Marketing Agreement No. 97 and Marketing Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposal invites comments on revisions to the grade requirement currently prescribed for Size B potatoes under the order. This proposal would relax the current minimum grade requirement for Size B red potatoes from U.S. Commercial grade to U.S. No. 2 grade. This change was unanimously recommended by the Committee at a meeting held on March 17, 2016.
Section 948.22 authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the order's production area. Section 948.21 authorizes the modification, suspension, or termination of regulations issued pursuant to § 948.22.
Under the Colorado potato marketing order, the State of Colorado is divided into three areas of regulation for marketing order purposes. These include: Area 1, commonly known as the Western Slope; Area 2, commonly known as San Luis Valley; and, Area 3, which consists of the remaining producing areas within the State of Colorado not included in the definitions of Area 1 or Area 2. Currently, the order only regulates the handling of potatoes produced in Area 2 and Area 3. Regulation for Area 1 has been suspended.
The grade, size, and maturity requirements specific to the handling of potatoes grown in Area 2 are contained in § 948.386 of the order. The current handling regulation requires that, for all varieties, Size B potatoes (1
At the March 17, 2016, Committee meeting, industry participants indicated to the Committee that there is demand in several markets, including the food service market, for Size B, U.S. No. 2 grade red potatoes. They further stated
Relaxing the grade requirement to allow shipments of U.S. No. 2 grade Size B red potatoes would make more potatoes available to consumers and would allow Area 2 handlers to move more of the area's potato production into the fresh market. This change is expected to benefit producers, handlers, and consumers of potatoes.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 66 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 150 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
During the 2014-2015 marketing year, the most recent full marketing year for which statistics are available, 14,075,876 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold into the fresh market. Based on information reported by USDA's Market News Service, the average f.o.b. shipping point price for the 2014-2015 Colorado potato crop was $8.60 per hundredweight. Multiplying $8.60 by the shipment quantity of 14,075,876 hundredweight yields an annual crop revenue estimate of $121,052,534. The average annual fresh potato revenue for each of the 66 handlers is therefore calculated to be $1,834,129 ($121,052,534 divided by 66), which is less than the SBA threshold of $7,500,000. Consequently, on average most of the Colorado Area No. 2 potato handlers may be classified as small entities.
In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for the 2014 Colorado fall potato crop was $8.25 per hundredweight. Multiplying $8.25 by the shipment quantity of 14,075,876 hundredweight yields an annual crop revenue estimate of $116,125,977. The average annual fresh potato revenue for each of the 150 Colorado Area No. 2 potato producers is therefore calculated to be approximately $774,173 ($116,125,977 divided by 150), which is greater than the SBA threshold of $750,000. Consequently, on average, many of the Area No. 2 Colorado potato producers may not be classified as small entities.
This proposal would relax the minimum grade requirement prescribed for 1
This relaxation is expected to benefit producers, handlers, and consumers of Colorado Area 2 potatoes by allowing a greater quantity of potatoes from the production area to enter the fresh market. The anticipated increase in volume is expected to translate into greater returns for handlers and producers, and more purchasing options for consumers.
After discussing possible alternatives to this proposed rule, the Committee determined that a relaxation in the grade requirement for Size B red potatoes would meet the industry's current needs while maintaining the integrity of the order's quality objectives. During its deliberations, the Committee considered making no changes to the handling regulation, as well as relaxing the grade requirement for all Size B potatoes. The Committee believes that a relaxation in the handling regulation for Size B red potatoes is necessary to allow handlers to pursue new markets, but lowering the grade requirement for all other types and varieties of Size B potatoes to U.S. No. 2 grade or better could erode the quality reputation of the area's production. Therefore, the Committee found that there were no other viable alternatives to the proposal as recommended.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, (Generic Vegetable and Specialty Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would relax minimum grade requirement under the Colorado Area 2 potato marketing order. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.
In addition, the Committee's meeting was widely publicized throughout the Colorado potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the March 17, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Potatoes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 948 is proposed to be amended as follows:
7 U.S.C. 601-674.
(a) * * *
(3)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to revise the regulatory definition of volatile organic compounds (VOC) under the Clean Air Act (CAA). This proposed revision would add 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (also known as HFE-347pcf2; CAS number 406-78-0) to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone formation. In the “Rules and Regulations” section of this
Written comments must be received on or before August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0041, at
Souad Benromdhane, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C539-07, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919) 541-5315; email address:
This document proposes to revise the EPA's regulatory definition of VOC for purposes of preparing state implementation plans (SIPs) to attain the national ambient air quality standards (NAAQS) for ozone under title I of the CAA by adding HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone formation. We have published a direct final rule in the “Rules and Regulations” section of this
If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.
We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the
Entities potentially affected by this direct final rule include, but are not necessarily limited to, state and local air pollution control agencies that adopt and implement regulations to control air emissions of VOC; and industries manufacturing and/or using HFE-347pcf2 as a precision cleaning agent to remove contaminates including oil, flux, fingerprints from items like medical devices, artificial implants, crucial military and aerospace items, electric components, printed circuit boards, optics, jewelry, ball bearings, aircraft guidance systems, film, relays and a variety of metal components, among others. In addition to being available in the docket, an electronic copy of this proposal will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this action will be posted on the EPA's Web site
This proposed action would revise the EPA's regulatory definition of VOC for purposes of preparing SIPs to attain the NAAQS for ozone under title I of the CAA, by adding HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone formation. We have explained our reasons for this action in the preamble to the direct final rule. The regulatory text for the proposal is identical to that for the direct final rule published in the “Rules and Regulations” section of this
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. It does not contain any recordkeeping or reporting requirements.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users of the compound from requirements to control emissions of the compound.
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 imposes no enforceable duty on any state, local or tribal governments or the private sector.
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 proposed rule would remove HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Since HFE-347pcf2 is utilized in specific industrial applications where children are not present and dissipates quickly, there is no exposure or disproportionate risk to children. This proposed rule would remove HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This action does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action would remove HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users of the compound from requirements to control emissions of the compound.
Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the North Carolina SIP, submitted by the North Carolina Department of Environmental Quality (NC DEQ) on March 24, 2016, and the portions of a revision to the Alabama State Implementation Plan (SIP),
Comments must be received on or before August 31, 2016.
Submit your comments, identified by Docket ID No EPA-R04-OAR-2016-0209 at
Sean Lakeman of the 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. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at
By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) and from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.
Through these proposed actions, EPA is proposing to approve North Carolina's March 24, 2016, SIP submission and the portions of Alabama's December 9, 2015, SIP submission addressing interstate transport requirements for the 2010 NO
On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO
States were required to submit infrastructure SIP submissions for the 2010 1-hour NO
The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “each such plan” submission must address.
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as “infrastructure SIP”
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 CAA, which specifically address nonattainment SIP requirements.
Another example of ambiguity within section 110(a)(1) and (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 section 110(a)(1) and (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 attainment plan SIP submissions required by part D to meet the “applicable requirements” of section 110(a)(2); thus, 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
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 section 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. 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 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 SIP 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 (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions;
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 section 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 section 110(a)(1) and (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 SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
For each new NAAQS, section 110(a)(2)(D)(i)(I) of the CAA requires each state to submit a SIP revision that contains adequate provisions prohibiting emissions activity in the state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in any downwind state. EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or conjointly as the “good neighbor” provision of the CAA. Section 110(a)(2)(D)(i)(I) requires the elimination of upwind state emissions that significantly contribute to nonattainment or interference with maintenance of the NAAQS in another state.
Alabama has concluded that it does not contribute significantly to nonattainment of the 2010 1-hour NO
First, there are no designated nonattainment areas for the 1-hr NO
Second, as part of its December 9, 2015 submittal, Alabama examined NO
Third, in its submittal, Alabama identifies SIP-approved regulations at Alabama Administrative Code 335-3-8 that require controls and emission limits for certain NO
For all the reasons discussed above, EPA has preliminarily determined that Alabama does not contribute significantly to nonattainment of the 2010 1-hour NO
Alabama has concluded that it does not interfere with maintenance of the 2010 1-hour NO
North Carolina has concluded that it does not contribute significantly to nonattainment of the 2010 1-hour NO
First, as noted above, there are no designated nonattainment areas for the 1-hr NO
Second, North Carolina examined 1-hour NO
Third, North Carolina reviewed 1996-2011 annual NO
Fourth, in addition to the CSA, North Carolina cites to a number of State regulations that address additional control measures, means, and techniques to reduce NO
For all of the reasons discussed above, EPA has preliminarily determined that North Carolina does not contribute significantly to nonattainment of the 2010 1-hour NO
North Carolina has concluded that it does not interfere with maintenance of the 2010 1-hour NO
As described above, EPA is proposing to approve North Carolina's March 24, 2016, SIP revision and the portions of Alabama's December 9, 2015, SIP revision addressing prongs 1 and 2 of CAA section 110(a)(2)(D)(i) 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.
• Are not “significant regulatory actions” 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);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do 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 SIPs are 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 rules do not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will they 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.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve three State Implementation Plan (SIP) revisions submitted by the State of Vermont. These revisions primarily amend several aspects of Vermont's new source review permitting regulations. The permitting revisions are part of Vermont's major and minor stationary source preconstruction permitting programs, and are intended to align Vermont's regulations with the federal new source review regulations. The revisions also contain amendments to other Clean Air Act (CAA) requirements, including updating the State's ambient air quality standards and certain emissions limits for sources of nitrogen oxides and sulfur dioxide. This action is being taken in accordance with the Clean Air Act.
Written comments must be received on or before August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R01-OAR-2014-0617 at
Ida E. McDonnell, Manager, Air Permits, Toxics, and Indoor Programs Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, (OEP05-2), Boston, MA 02109-3912, phone number (617) 918-1653, fax number (617) 918-0653, 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 (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Placer County Air Pollution Control District (PCAPCD) and Ventura County Air Pollution Control District (VCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO
Any comments on this proposal must arrive by August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0262 at
Kevin Gong, EPA Region IX, (415) 972-3073,
Throughout this document, “we,” “us” and “our” refer to the EPA. This proposal addresses the following local rules: PCAPCD Rule 250, “Stationary Gas Turbines,” and VCAPCD Rule 74.15.1, “Boilers, Steam Generators, and Process Heaters.” In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
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 December 14, 2015, for inclusion into the Florida SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 Annual Fine Particulate Matter (PM
Written comments must be received on or before August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0192 at
Tiereny Bell, 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. The telephone number is (404) 562-9088. Ms. Bell can also be reached via electronic mail at
On December 14, 2012 (78 FR 3086, January 15, 2013), EPA promulgated a revised primary annual PM
This rulemaking is proposing to approve portions of Florida's PM
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.
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 requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements are summarized 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 110(a)(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 2012 Annual PM
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 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 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
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 new source review (NSR) pollutants, including greenhouse gases (GHG). 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 SIP 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
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 SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
The Florida infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.
Additionally, the following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(9), Florida Statutes, authorizes FDEP to “[a]dopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state,” and section 403.8055, Florida Statutes, authorizes FDEP to “[a]dopt rules substantively identical to regulations adopted in the
EPA has made the preliminary determination that the provisions contained in these State regulations and sections of the Florida Statutes, and Florida's practices satisfy section
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) 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 that 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.
Additionally, the following two sections of the Florida Statutes provide FDEP the authority to take specific actions in support of this infrastructure element. Section 403.061(6), Florida Statutes, requires FDEP to “[e]xercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.” Section 403.121, Florida Statutes, authorizes FDEP to seek judicial and administrative remedies, including civil penalties, injunctive relief, and criminal prosecution for violations of any FDEP rule or permit.
EPA has made the preliminary determination that Florida's SIP and practices are adequate for program enforcement of control measures, regulation of minor sources and modifications, and preconstruction permitting of major sources and major modifications related to the 2012 Annual PM
In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), FDEP's infrastructure submissions demonstrate that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards and general policies, a system of permits, fee schedules for the review of plans, and other planning needs. Section 403.061(35), Florida Statutes, authorizes FDEP to exercise the duties, powers, and responsibilities required of the state under the federal CAA. Section 403.061(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 403.182, 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 with respect to sub-elements (i) and (iii), EPA submitted a letter to FDEP on April 19, 2016, outlining 105 grant commitments and current status of these commitments for fiscal year 2015. The letter EPA submitted to FDEP 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. As such, a “board or body” is not responsible for approving permits or enforcement orders in Florida, and the requirements of section 128(a)(1) are not applicable. Florida is only subject to the requirements of 128(a)(2) and submitted the applicable statutes for incorporation into Florida SIP. Florida Statutes, specifically subsections 112.3143(4), F.S.,
Therefore, EPA is proposing to approve Florida's infrastructure SIP submissions as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
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 December 17, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site
The following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this element. Section 403.061(35) gives FDEP the broad authority to implement the CAA. Section 403.061(9) authorizes FDEP to “[a]dopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state, and from time to time review and modify such programs as necessary.” EPA has made the preliminary determination that Florida adequately demonstrates a commitment to provide future SIP revisions related to the 2012 Annual PM
With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 and 2). EPA is proposing to approve Florida's infrastructure submission submitted on December 14, 2015, for the 2012 Annual PM
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).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Maine relating to the regulation of fine particulate matter (that is, particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometer, generally referred to as “PM
Written comments must be received on or before August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R01-OAR-2014-0291 at
Patrick Bird, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, (mail code OEP05-2), Boston, MA 02109-3912; telephone number: (617) 918-1287; email address:
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 (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve the state implementation plan (SIP) revision submitted by the State of Maryland for the purpose of establishing Maryland's adoption of the requirements in EPA's control technique guidelines (CTG) for fiberglass boat manufacturing materials. In the “Rules and Regulations” section of this
Comments must be received in writing by August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0304 at
Gavin Huang, (215) 814-2042, or by email at
For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Modoc County Air Pollution Control District (MCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern MCAPCD's administrative and procedural requirements to obtain preconstruction permits that regulate emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are proposing to approve these local rules under the CAA.
Any comments on this proposal must arrive by August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0119 at
Ya-Ting (Sheila) Tsai, EPA Region IX, (415) 972-3328,
Throughout this document, “we,” “us” and “our” refer to the EPA. This proposal addresses the following local rules: 2.3, 2.5, 2.7, and 2.10. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Proposed rule.
On March 22, 2011, and May 3, 2012, the Commonwealth of Kentucky, through the Kentucky Division for Air Quality (KDAQ), submitted revisions to the Kentucky State Implementation Plan (SIP) on behalf of the Louisville Metro Air Pollution Control District (District). At this time, the Environmental Protection Agency (EPA) is proposing to approve several portions of the submissions that modify the District's air quality regulations as incorporated into the SIP. The revisions to the regulatory portion of the SIP that EPA is proposing to approve pertain to changes to the District's air quality standards for lead (Pb), particulate matter (both PM
Written comments must be received on or before August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0521 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. The telephone number is (404) 562-8726. Mr. Wong can be reached via electronic mail at
Sections 108 and 109 of the CAA govern the establishment, review, and revision, as appropriate, of the NAAQS to protect public health and welfare. The CAA requires periodic review of the air quality criteria—the science upon which the standards are based—and the standards themselves. EPA's regulatory provisions that govern the NAAQS are found at 40 CFR 50—
The March 22, 2011, SIP submission revises Regulation 1.02 by adding, removing, and modifying definitions and consolidates Regulations 3.02, 3.03, 3.04, and 3.05 into Regulation 3.01 by removing Regulations 3.02 through 3.05 and expanding Regulation 3.01.
EPA is proposing to approve all of the changes to Regulation 1.02
Specifically, an additional sentence has been added to the definition of “ambient air” to reflect computer dispersion modeling guidance provided by EPA regarding public access to private property that is not under the control of the stationary source from which emissions under study originate. The definition of “emission standard” was modified to provide examples of what makes an emission standard legally enforceable (namely, federal, state, or local law or regulation, District permit, or Board Order) and to recognize that an opacity limit is an emission standard. The definition of “malfunction” has been revised to add the qualification that the equipment failure causes, or is likely to cause, emissions that exceed an applicable emission standard. Definitions have been added for the terms “bypass,” “preventable upset condition,” and “upset condition,” which are used in Regulation 1.07, a part of the federally-approved SIP. The definition of “excess emissions” was added to provide clarity as to the requirements in 401 KAR 63:020. The definition of “welfare,” taken from section 302(h) of the CAA, has been added to clarify which types of harmful effects from the emissions of toxic air contaminants are prohibited. The definition of “toxic air contaminant” has been added to differentiate between the specific “hazardous air pollutant” (HAP) list pursuant to section 112 of the Clean Air Act and the specific “toxic air pollutant” lists pursuant to Kentucky regulations 401 KAR 63:021 (11-11-86) and 401 KAR 63:022 (11-11-86). The District has also exempted from the definition of “volatile organic compound” five additional organic compounds that the EPA, on November 29, 2004, exempted from its corresponding definition at 40 CFR 51.100(s).
EPA is also proposing to approve the changes to Regulation 3.01 (to the extent that they are not superseded by changes in the May 3, 2012, submittal)
EPA believes that these proposed changes to the regulatory portion of the SIP are consistent with section 110 of the CAA and meet the regulatory requirements pertaining to SIPs. Pursuant to CAA section 110(l), the Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in CAA section 171), or any other applicable requirement of the Act. With respect to the District's addition of exemptions from the definition of “volatile organic compound,” the change is approvable under section 110(l) because it reflects changes to federal regulations based on findings that the exempted compounds are negligibly reactive.
EPA is not taking action on the changes to Regulations 1.06 identified in the March 22, 2011, SIP submission.
The May 3, 2012, submission builds on the revisions to Regulation 3.01 proposed in the March 22, 2011, submission by updating the District's ambient air quality standards to reflect the NAAQS for Pb, PM
On November 12, 2008, EPA promulgated a new 1-hour primary and secondary NAAQS for Pb at a level of 0.15 micrograms per cubic meter (μg/m
On October 17, 2006, EPA revised the 24-hour primary and secondary PM
On July 18, 1997, EPA revoked the 1-hour primary NAAQS for O
On February 9, 2010, EPA promulgated a new 1-hour primary NAAQS for NO
On June 22, 2010, EPA promulgated a revised primary SO
EPA has reviewed the revisions to Regulation 3.01 in the May 3, 2012, SIP submission, including the NAAQS updates for Pb, particulate matter, O
In this rule, 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, EPA is proposing to incorporate by reference Jefferson County Regulation 1.02—
EPA is proposing to approve the portions of the Commonwealth of Kentucky's March 22, 2011, and May 3, 2012, SIP revisions identified in section II, above, because they are consistent with the CAA.
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 (Public Law 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, Sulfur dioxide, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to take action on portions of six submissions from the State of Utah that are intended to demonstrate that the State Implementation Plan (SIP) meets certain interstate transport requirements of the Clean Air Act (Act or CAA). These submissions address the 2006 and 2012 fine particulate matter (PM
Comments must be received on or before August 31, 2016.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2016-0107 at
Adam Clark, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. (303) 312-7104,
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions and organize your comments;
• Explain why you agree or disagree;
• Suggest alternatives and substitute language for your requested changes;
• Describe any assumptions and provide any technical information and/or data that you used;
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced;
• Provide specific examples to illustrate your concerns, and suggest alternatives;
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and,
• Make sure to submit your comments by the comment period deadline identified.
On September 21, 2006, the EPA revised the primary 24-hour NAAQS for PM
Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as the EPA may prescribe. Section 110(a)(2) requires states to address structural SIP elements such as monitoring, basic program requirements, and legal authority that are designed to provide for implementation, maintenance, and enforcement of the NAAQS. The SIP submission required by these provisions is referred to as the “infrastructure” SIP. Section 110(a) imposes the obligation upon states to make a SIP submission to the EPA for a new or revised NAAQS, but the contents of individual state submissions may vary depending upon the facts and circumstances.
CAA section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state (known as the “good neighbor” provision). The two provisions of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interfere with maintenance). Section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4).
In this action, the EPA is addressing prong 4 with regard to the 2006 and 2012 PM
The Utah Department of Environmental Quality (Department or UDEQ) submitted the following: A certification of Utah's infrastructure SIP for the 2006 PM
Each of these infrastructure certifications addressed all of the required infrastructure elements under section 110(a)(2).
In Utah's 2006 PM
In Utah's 2006 PM
UDEQ addressed visibility for the 2008 Pb NAAQS by pointing to the short distance travelled by Pb emissions, and by noting that there was not a significant source of Pb in Utah within 100 miles of a Class I area.
As stated in the EPA's September 13, 2013 Infrastructure SIP Guidance Memo (“2013 Guidance”), “[o]ne way in which prong 4 may be satisfied for any relevant NAAQS is through an air agency's confirmation in its infrastructure SIP submission that it has an approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process.”
On May 26, 2011, Utah submitted to the EPA a SIP revision to address the requirements of the regional haze program. The EPA partially approved and partially disapproved Utah's SIP revision on December 14, 2012 (77 FR 74355). In that action, the EPA disapproved Utah's NO
In response to the EPA's December 14, 2012 partial disapproval, UDEQ submitted further SIP revisions on June 4, 2015, and October 20, 2015, to meet the regional haze requirements for NO
On July 5, 2016, the EPA finalized action on Utah's June 4, 2015 Regional Haze SIP, approving the PM
The 2013 Guidance states that section 110(a)(2)(D)(i)(II)'s prong 4 requirements can be satisfied by approved SIP provisions that the EPA has found to adequately address a state's contribution to visibility impairment in other states. The EPA interprets prong 4 to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.
The 2013 Guidance lays out two ways in which a state's infrastructure SIP submittal may satisfy prong 4. As explained above, one way is through a state's confirmation in its infrastructure SIP submittal that it has an EPA approved regional haze SIP in place. In the absence of a fully approved regional haze SIP, a state can make a demonstration in its infrastructure SIP submittal that emissions within its jurisdiction do not interfere with other states' plans to protect visibility. Such a submittal should point to measures in the state's SIP that limit visibility-impairing pollutants and ensure that the resulting reductions conform with any mutually agreed emission reductions under the relevant regional haze regional planning organization (RPO) process.
UDEQ worked through its RPO, the WRAP, to develop strategies to address regional haze. To help states in establishing reasonable progress goals for improving visibility in Class I areas, the WRAP modeled future visibility conditions based on the mutually agreed emissions reductions from each state. The WRAP states then relied on this modeling in setting their respective reasonable progress goals. As a result, we consider emissions reductions from measures in Utah's SIP that conform with the level of emission reductions the State agreed to include in the WRAP modeling to meet the visibility requirement of CAA section 110(a)(2)(D)(i)(II).
With regard to the 2010 SO
The EPA is also proposing to approve Utah's prong 4 SIP submittal for the 2008 Pb NAAQS. The EPA agrees with UDEQ's submission, which states that significant impacts from Pb emissions from stationary sources are expected to be limited to short distances from the source. The State also noted that it does not have any major sources of Pb located within 100 miles of a neighboring state's Class I area. Further, when evaluating the extent to which Pb could impact visibility, the EPA has found Pb-related visibility impacts insignificant (
The EPA is proposing to disapprove Utah's prong 4 infrastructure SIP submittals for the 2006 PM
As noted, Utah relied on its Regional Haze SIP (Utah SIP Section XX), and specifically its participation in the WRAP, as justification for the approvability of prong 4 for 2006 PM
If the EPA disapproves an infrastructure SIP submission for prong 4, as we are proposing for the 2006 PM
The EPA is proposing to approve portions of Utah's infrastructure certifications which address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(II), and to disapprove portions of other certifications addressing this CAA requirement. The EPA is proposing to approve 110(a)(2)(D)(i)(II) prong 4 for the 2008 Pb and 2010 SO
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, the EPA's role is to approve state actions, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes approval of some state law as meeting federal requirements and proposes disapproval of other state law because it does not meet federal requirements; this proposed action does not propose 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 (Public Law 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 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 does not apply on any Indian reservation land or in any other area where the EPA or an Indian
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.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Request for stakeholder input.
The Environmental Protection Agency (EPA) is announcing plans to hold a public “listening session” on September 14, 2016 in Chicago, Illinois to obtain information from the public to help inform development of a new regulation establishing public notification requirements for combined sewer overflow discharges in the Great Lakes. This rulemaking is in response to new requirements included with the 2016 appropriations. EPA is requesting input from the public regarding potential approaches for these new public notification requirements for combined sewer overflow discharges in the Great Lakes through participation in the public listening session and by submitting information in writing at the listening sessions or to the agency directly through email, fax, or mail. The agency is undertaking this outreach to help it shape a future regulatory proposal intended to provide the affected public with information that will help better protect public health.
The session will be held on September 14, 2016. Comments must be received on or before September 23, 2016.
The public listening session will be held at the Environmental Protection Agency Region 5 Office (Lake Erie Room, Floor 12), 77 West Jackson Boulevard, Chicago, IL 60604-3507. Submit your comments, identified by Docket ID No. EPA-HQ-OW-2016-0378, to the
Lisa Biddle, Water Permits Division, Office of Water (4203M), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: 202-566-0350; fax number: 202-564-6392; email address:
EPA will hold an informal public listening session to afford an opportunity for the public to provide input on a regulatory action that EPA is considering to establish public notification requirements for combined sewer overflow discharges in the Great Lakes. Brief oral comments (three minutes or less) and written statements will be accepted at the session. The listening session will be held on September 14, 2016 at 10 a.m. at the Environmental Protection Agency Region 5 Office (Lake Erie Room, Floor 12), 77 West Jackson Boulevard, Chicago, IL 60604-3507. The listening session will continue until all speakers in attendance have had a chance to provide comments or 3 p.m., whichever comes first. If time allows after all comments have been heard, a broader discussion may take place regarding topics identified under Section III, Input on Public Notice Considerations.
Prior to the public meeting date, EPA will post any relevant materials to the following Web site:
The Environmental Protection Agency (EPA) will be proposing a rule to establish public notification requirements for combined sewer overflows (CSOs) to the Great Lakes, as required by Section 425 of the Consolidated Appropriations Act of 2016 (Pub. L. 114-113) (hereafter, referred to as “Section 425”). Section 425 requires EPA to work with the Great Lakes states to create these public notice requirements, and EPA is also seeking public input in the development of these requirements.
Municipal wastewater collection systems collect domestic sewage and other wastewater from homes and other buildings and convey it to wastewater treatment plants for proper treatment and disposal. The collection and treatment of municipal sewage and wastewater is vital to the public health in our cities and towns. In the United States, municipalities historically have used two major types of sewer systems. Many municipalities collect domestic sewage in a sanitary sewer system and convey the sewage to a publicly owned treatment works (POTW) for treatment. These municipalities also have separate sewer systems to collect surface
The other type, combined sewer systems, is designed to collect both sanitary sewage and stormwater runoff in a single-pipe system. This type of sewer system provides the primary means of surface drainage carrying rain and snowmelt away from streets, roofs, and other impervious surfaces. Combined sewer systems were among the earliest sewer systems constructed in the United States and were built until the first part of the 20th century.
A combined sewer system collects rainwater and snowmelt runoff, domestic sewage, and industrial wastewater into one pipe. Under normal conditions, it transports all of the wastewater it collects to a sewage treatment plant for treatment. The volume of wastewater can sometimes exceed the capacity of the combined sewer system or treatment plant (
CSOs contain untreated or partially treated human and industrial waste, toxic materials, and debris as well as stormwater. CSO events can be detrimental to human health and the environment because they introduce pathogens, bacteria, and other pollutants to receiving waters, causing beach closures, contaminating drinking water supplies and impairing water quality. Fish and other aquatic populations also can be impacted by the depleted oxygen levels that can be caused by CSOs.
Combined sewer systems serve a total population of about 40 million people nationwide. Most communities with CSOs are located in the Northeast and Great Lakes regions, particularly in Illinois, Indiana, Maine, Michigan, New York, Ohio, Pennsylvania, and West Virginia. Although large cities like New York, Philadelphia, and Atlanta have combined sewer systems, most communities with combined sewer systems have fewer than 10,000 people. Most combined sewer systems have multiple CSO discharge locations or outfalls, with some larger communities with combined systems having hundreds of CSO outfalls.
There are 184 communities with combined sewer systems serving communities in the United States portion of the Great Lakes and the Great Lakes System (“Great Lakes Basin”).
The Clean Water Act establishes national goals and requirements for maintaining and restoring the nation's waters. CSO discharges are subject to the technology-based and water quality-based requirements of the Clean Water Act under National Pollutant Discharge Elimination System (NPDES) permits. Technology-based effluent limitations for CSO discharges are based on the application of best available technology economically achievable (BAT) for toxic and nonconventional pollutants and best conventional pollutant control technology (BCT) for conventional pollutants. BAT and BCT effluent limitations for CSO discharges are determined based on “best professional judgment.” CSO discharges are not subject to permit limits based on secondary treatment requirements that are applicable to POTWs. Permits authorizing discharges from CSO outfalls must include more stringent water quality-based requirements, when necessary, to meet water quality standards (WQS).
EPA issued the CSO Control Policy on April 19, 1994 (59 FR 18688). The CSO Control Policy “represents a comprehensive national strategy to ensure that municipalities, permitting authorities, WQS authorities, and the public engage in a comprehensive and coordinative effort to achieve cost-effective CSO controls that ultimately meet appropriate health and environmental objectives.” The policy assigns primary responsibility for implementation and enforcement to NPDES permitting authorities and WQS authorities.
The policy also established objectives for CSO communities to: 1) Implement the Nine Minimum Controls and submit documentation on their implementation; and 2) Develop and implement a long-term CSO control plan (LTCP) to ultimately result in compliance with the Clean Water Act, including water quality-based requirements. In describing NPDES permit requirements for CSO discharges, the CSO Control Policy states that the BAT/BCT technology-based effluent limitations “at a minimum include[s] the nine minimum controls.” 59 FR 18696. One of the nine minimum controls is “Public notification to ensure that the public receives adequate notification of CSO occurrences and CSO impacts.” At a minimum, the technology based effluent limitations applicable to CSOs include the nine minimum controls.
In December 2000, as part of the Consolidated Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554), Congress amended the Clean Water Act by adding Section 402(q). This amendment is commonly referred to as the “Wet Weather Water Quality Act of 2000.” It requires that each permit, order, or decree issued pursuant to the Clean Water Act after the date of enactment for a discharge from a municipal combined sewer system shall conform to the CSO Control Policy.
Section 425 requires EPA to work with the Great Lakes states to create public notice requirements for combined sewer overflow discharges to the Great Lakes. Section 425(b)(2) provides that the notice requirements are to address the method of the notice, the contents of the notice, and requirements for public availability of the notice. Section 425(b)(3)(A) provides that at a minimum, the contents of the notice are to include the dates and times of the applicable discharge; the volume of the discharge; and a description of any public access areas impacted by the discharge. Section 425(b)(3)(B) provides that the minimum content requirements are to be consistent for all affected States.
Section 425(b)(4)(A) calls for follow-up notice requirements that provide a description of each applicable discharge; the cause of the discharge; and plans to prevent a reoccurrence of a combined sewer overflow discharge to the Great Lakes consistent with section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) or an administrative order or consent decree under such Act. Section 425(b)(4)(B) provides for annual publication requirements that list each treatment works from which the Administrator or the affected State receive a follow-up notice.
Section 425(b)(5) requires that the notice and publication requirements described in Section 425 shall be implemented by not later than December 18, 2017. However, the Administrator of the EPA may extend the implementation deadline for individual communities if the Administrator determines the community needs additional time to comply in order to avoid undue economic hardship. Finally, Section 425(b)(6) clarifies that “Nothing in this subsection prohibits an affected State from establishing a State notice requirement in the event of a discharge that is more stringent than the requirements described in this subsection.”
EPA is working with the Great Lakes States to identify and evaluate options for implementing Section 425. EPA has also met with various stakeholder groups that represent municipalities, industry practitioners, and environmental organizations to hear each of their perspectives. EPA will continue to meet with interested stakeholder groups throughout the rulemaking process. In addition, the public “listening session” on September 14, 2016 will provide stakeholders and other members of the public with an opportunity to share their views regarding potential new public notification requirements for CSOs in the Great Lakes Basin.
EPA and the Great Lake States will consider several options for creating public notice requirements for CSOs in the Great Lakes Basin under Section 425. In general, EPA and the Great Lake States are requesting comment on public notice requirements that provide for:
• Immediate notice of CSO discharge events to local public health officials and drinking water facilities. This notice is intended to alert public health officials and drinking water facilities to specific CSO discharges and support the development of appropriate responses to the discharges.
• Immediate notice of CSO discharge events to the public via text alerts, Web site notice, or other appropriate means. This notice is intended to alert the public to CSO discharges which may allow them to take steps to reduce their potential exposure to pathogens associated with the discharges.
• Immediate notice of CSO discharge events to the NPDES permitting authority. NPDES permits establish requirements to report CSO discharges to the NPDES authority. 40 CFR 122.41(l)(6) provides minimum requirements to report certain CSO discharges to the NPDES authority within 24 hours.
• Annual CSO notice. The annual CSO notice is intended to provide the public with a description of the current performance of their system as well as progress being made to reduce CSOs.
EPA solicits information from the public regarding any aspect of Section 425 of the Consolidated Appropriations Act of 2016, including:
(1) What means of receiving immediate notice of CSO discharge events is most helpful to the public?
(2) What should “immediate” mean in this context? How soon after a CSO discharge event commences should the public and local public health agencies be given notice?
(3) What type of information would be most appropriate for immediate notices? In addition to the statutorily required elements of (i) the dates and times of the applicable discharge; (ii) the volume of the discharge; and (iii) a description of any public access areas impacted by the discharge; what other pieces of information would be beneficial for the public, local public health agencies, public drinking water providers, etc. to receive as part of the public notice?
(4) What role should local public health agencies have in identifying immediate notification requirements?
(5) How should annual notices be made available to the public?
(6) What information should be included in annual notices and who should prepare the annual notices?
(7) Do EPA's requirements to notify NPDES permitting authorities under 40 CFR 122.41(l)(4), (6) and (7) have a role in the new public notice requirements?
(8) What regulatory framework is most appropriate for immediate notification requirements? For annual notices?
In addition to participation in the meeting, members of the public may share input through written comments to the public docket (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues a proposed rule that would modify the recordkeeping and reporting requirements for the groundfish fisheries in the Gulf of Alaska and the Bering Sea/Aleutian Islands management areas. This proposed rule is organized into four actions. Under the first action, NMFS would implement a requirement for tender vessel operators to use the applications software “tLandings” to prepare electronic landing reports. This action is necessary to improve timeliness and reliability of landing reports for catcher vessels delivering to tender vessels for use in catch accounting and inseason management. Under the second action, NMFS would
Submit comments on or before August 31, 2016.
You may submit comments, identified by NOAA-NMFS-2016-0021, by any of the following methods:
•
•
Electronic copies of the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) (collectively referred to as the “Analysis”) and the Categorical Exclusion prepared for this proposed rule may be obtained from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS (see
Keeley Kent, 907-586-7228.
NMFS Alaska Region manages the U.S. groundfish fisheries in the Exclusive Economic Zone off Alaska under the BSAI FMP and the GOA FMP. The FMPs were prepared by the North Pacific Fishery Management Council, under authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
This proposed rule is organized into four actions. Under the first action, NMFS would implement a requirement for tender vessel operators to use tLandings. Under the second action, NMFS would modify the definition of buying station so that tender vessels and land-based buying stations are differentiated under the regulations. Under the third action, NMFS would remove the requirement for buying stations to complete the buying station report. Under the fourth action, NMFS would modify the definition of a mothership to simplify the unnecessary paragraph formatting. The following sections of the preamble describe: (1) Background on the Interagency Electronic Reporting System, tendering, and tLandings; (2) the need for action; and (3) the proposed rule and its anticipated effects.
The Interagency Electronic Reporting System (IERS) is a collaborative program for reporting commercial fishery landings administered by NMFS, Alaska Department of Fish and Game (ADF&G), and the International Pacific Halibut Commission. The IERS consists of three main components: eLandings—a web-based application for immediate harvest data upload from internet-capable vessels or processors; seaLandings—a desktop application for vessels at sea without internet capability which transmits reports by satellite phone; and tLandings—a software application for tender vessels that records landings data on a USB flash drive (“thumb-drive”) that includes all of the data fields required under IERS. Current regulations require that landing reports be submitted via eLandings, or seaLandings for halibut, sablefish, and crab fisheries (§ 679.5(e)(5)). NMFS requires all shoreside or floating processors that hold a Federal processing permit (FPP) to use eLandings or other NMFS-approved software to submit landing reports for all groundfish species. All motherships holding a Federal fisheries permit (FFP) are required to enter landing information in eLandings, unless an internet connection is not available. seaLandings may be used when an internet connection is not available. Catcher/processors with an FFP are required to use eLandings, or seaLandings (when no internet connection is available), to submit Daily Production Reports.
NMFS has identified electronic reporting through eLandings as a way to improve data quality, automate processing of data, improve the process for correcting or updating information, allow for the availability of more timely data for fishery managers, and reduce duplicative reporting of similar information to multiple agencies.
A tender vessel is defined under § 679.2 as a vessel that is used to transport unprocessed fish or shellfish received from another vessel to an associated processor. An associated processor is defined under § 679.2 as having a contractual relationship with a buying station to conduct groundfish buying station activities for that processor. The contractual relationship in the Federal regulations creates joint responsibility for recordkeeping and reporting. A tender vessel is also included under the definition of a buying station, which receives unprocessed groundfish from a vessel for delivery to a shoreside processor, stationary floating processor, or mothership, but does not process fish (§ 679.2). Buying stations include both tender vessels and land-based entities.
Since tender vessels transport harvested fish to a processor and do not process the fish themselves, they are currently not required to participate in the IERS. Currently, tender vessels provide a written landing report for each delivery, commonly known as a “fish ticket” to the processor on delivery; the processor then prepares a cumulative landing report in eLandings. Although there is an optional field in the eLandings landing report for tender vessel identification number, processors are not required to identify tender vessel deliveries. If the tender vessel is not identified, NMFS cannot distinguish a tender vessel delivery to a processor from a vessel delivery to a processor.
The State of Alaska (State) allows vessels to contract with other vessels to receive fish from some fisheries managed by the State and deliver that fish to processors located within the State's jurisdiction. Unlike tenders, these vessels do not have a contract or association with a processor to transport unprocessed fish received from another vessel to a processor. Vessels engaging in this activity are called “transporters” under State regulations. The State created the statutory and regulatory authority for vessels to operate as transporters in 2003. Transporters must have a transporter permit from ADF&G, and, under a contractual arrangement with the vessel, are considered agents of the vessel. Because of the requirement in § 679.2 for a contractual relationship with a processor, a vessel acting as a transporter under the State definition would not be categorized as a tender vessel under the Federal regulations. Therefore, none of the requirements that apply to tenders would apply to vessels operating as a transporter under State regulations, and the provisions of this proposed rule that apply to tenders would not apply to transporters. See Sections 1.5.3 and 1.6.1 of the Analysis for further description and discussion of transporters.
tLandings is a computer application used on computers onboard tender vessels. tLandings was developed for use on tender vessels without internet access. The tLandings application is loaded onto a thumb drive and configured with a list of the authorized users, the processor's vessel list, and a species list, and includes the option for the processor to add a price list. The tender vessel operator would create the landing reports and store them on the thumb drive. Once the tender vessel trip is completed, the tender vessel operator would provide the thumb drive to the processor for upload into the eLandings repository database. The processor would then upload the eLandings landing report to a NMFS central server. This system requires one-time data entry on the tender vessel and the information is transferred to the processor, and then to the agency via eLandings. Digital harvest reports improve catch accounting and streamline the process. Though the use of tLandings is currently voluntary, a growing number of tender vessels and processors are using tLandings (see Section 1.4 of the Analysis).
Under the current regulations, the processor is responsible for reporting the information provided by the tender vessel on the fish ticket. The processor provides a booklet of fish tickets to associated tender vessels with the processor identification number printed on them. The tender vessel operator completes the fish ticket for each delivery and returns the fish tickets to the processor at the time of offload. Should the tender vessel submit an incorrect fish ticket, the processor would be responsible for tracking down the tender vessel to correct the information.
In November 2015, ADF&G adopted State regulations to require the use of tLandings for tender vessels who have submitted more than 2,000 salmon fish tickets or bought over 20 million pounds of salmon in 2012, 2013, or 2014, and for all groundfish delivered to tender vessels. ADF&G estimated that roughly 55 tender vessels would meet the threshold for the new regulation, but many already used tLandings for halibut and sablefish, salmon, and groundfish reporting. The State tLandings requirement became effective January 2016.
When a tender vessel receives catch from a vessel, the tender vessel operator completes a paper fish ticket. Once the transfer is complete, the vessel operator signs the paper fish ticket acknowledging the transfer of catch and agreeing to the information provided. When the tender vessel delivers the catch to the processor, the tender vessel operator provides the paper fish ticket to the processor. The processor then verifies the information and manually enters the fish ticket data into eLandings to create a landing report. Landing reports are required to be submitted to NMFS by noon of the day following the delivery. The processor's manual entry of fish ticket data, including review and correction of the data, sometimes makes it difficult for the processor to meet this submission deadline and can delay the availability of the tender vessel landing data to NMFS.
The lack of electronic data from tenders reduces data reliability and timeliness. Additionally, with the lack of electronic data from tenders, NMFS is unable to differentiate deliveries to tender vessels from deliveries to processors unless the processor voluntarily enters the tender vessel identification number in the eLandings report. NMFS has, in the past, raised concerns about landings data reliability and timeliness in analyses presented to the Council and fishery participants.
Data timeliness and reliability are paramount to effective inseason management. Almost real-time access to the data is particularly important for fast-paced fisheries that operate under small total allowable catch limits, constraining prohibited species catch (PSC) limits, or that have inconsistent and unpredictable levels of fishing effort. NMFS requires timely data for the successful management of these fisheries. In addition, NMFS uses timely data for any catch share program that involves transferable allocations of target species. NMFS inseason management and Office of Law Enforcement (OLE) rely on the data provided through eLandings to monitor compliance with requirements that quota holders not exceed their allocations. Management and enforcement of PSC-limited and catch share fisheries become more difficult when data access is delayed. For more information on the potential implications of the lack of electronic data entry on management, see Sections 1.3 and 2.4 of the Analysis.
This proposed rule would require tenders to use tLandings. The mandatory use of tLandings would provide a streamlined data entry mechanism that ensures efficient, precise data transmission. This action is necessary to enable NMFS to identify tender vessel deliveries and to provide reliable, expeditious data for catch accounting and inseason management of fisheries with tender vessel deliveries.
Under Action 1 of this proposed rule, tender vessel operators would be required to use tLandings to prepare electronic landing reports. Action 1 is necessary to improve data quality for deliveries made to tender vessels.
Under this proposed rule, the eLandings user (defined as a representative of a processor under § 679.2,
The tender vessel operator would be responsible for completing the tLandings landing report and submitting it to the processor. This would create a joint responsibility for the tLandings landing report information for the tender vessel operator and the processor. Section 1.9.4 of the Analysis provides additional detail on the monitoring and enforcement of the tLandings requirements.
Under this proposed rule, the general costs associated with requiring tender vessels to enter landing reports into tLandings are mainly attributable to equipment and training. NMFS assumes that tender vessels are likely to pay the costs for equipment and training (see Section 1.9.1.1 of the Analysis). To use tLandings, each tender vessel would need a laptop computer with a numeric key pad, a basic laser printer with ink cartridges and paper, a magstripe reader, and thumb drives that contain the tLandings application. NMFS estimates that using tLandings would increase the annual cost to tender vessels from $1,000 to $2,300. See Section 1.9.1.1 of the Analysis for more information on the estimated cost of equipment.
Operating the tLandings application requires some training and practice for both the tender vessel operators and processor staff. NMFS assumes that the initial and ongoing training costs to use tLandings would likely be shared by NMFS and the processor using tender vessels. NMFS may bear an initial cost for training processors on the use of tLandings, after which it would be the processors' responsibility to provide training for their tender vessel operators. NMFS estimates that it would require a full day of initial training for new tLandings users. Section 1.9.1.2 of the Analysis describes projected training costs in more detail.
Under this proposed rule, the tLandings requirement would reduce data entry errors and the time required to manually enter fish tickets. Requiring tLandings would reduce the likelihood of a processor needing to recall a tender vessel if a fish ticket is illegible or incorrectly filled out. Additionally, requiring tLandings would eliminate the need for comprehensive manual data entry by processor staff, simplifying and expediting the data transmission to NMFS. Because processors are already subject to an eLandings reporting requirement, processors likely have staff proficient with the IERS software, so there would be little additional training required for the tLandings requirement.
The ability for processors to upload the completed data from tLandings into IERS through eLandings means that landing data can be provided to NMFS more quickly and with greater reliability than the current paper-based reporting system. As Section 1.9 of the Analysis describes, the use of electronic data greatly reduces the likelihood of data entry errors and ensures data consistency and reliability, thereby reducing the costs and time required for NMFS or ADF&G staff to correct and verify data. Additionally, the data provided by the tLandings requirement would allow the Observer Program to more effectively identify deliveries to tenders for purposes of observer deployment to vessels within the partial coverage category.
Section 1.4 of the Analysis describes that some tender vessels are voluntarily using tLandings to report federal groundfish landings, and many are required to use tLandings to report landings made in State-managed fisheries. Therefore, the total additional costs and burden on tender vessel operations may be limited. Section 1.5.1 of the Analysis estimates that 30 tender vessels received Federal groundfish in the BSAI and GOA in 2015. Those tender vessels delivered to eight processors. Many tender vessels that operate in the Federal groundfish fisheries also operate in the State groundfish fisheries. Under State regulations these tender vessels are already subject to a State tLandings requirement and may already be equipped with tLandings from ADF&G. In 2015, 21 of the 30 tender vessels also took delivery of State groundfish. NMFS expects that there would be minimal additional cost for these tender vessels to also use tLandings for Federal groundfish. The eight processors that received Federal groundfish from tender vessels in 2015 also received State groundfish from tender vessels; therefore the effect of this proposed rule on processors is estimated to be minimal. Based on the most recent data from 2015, the tLandings requirement under this proposed rule would affect nine tender vessels.
Under this proposed rule, NMFS would add a data field to the tLandings application to track the location of tenders when they take deliveries from vessels. The tender vessel operator would be required to report the vessel's latitude and longitude at the time of each vessel delivery. This data is necessary to improve information on tender vessel activity in the GOA and vessel delivery patterns when delivering to a tender vessel as opposed to a processor. This data field is not expected to add a reporting burden on tender vessel operators.
Under Action 2 of this proposed rule, NMFS would revise the definitions of tender vessel and buying station for improved clarity. Currently, under § 679.2, the definition of a buying station includes both tender vessels and land-based buying stations. Under § 679.2, tender vessel is separately defined as a vessel used to transport unprocessed fish or shellfish received from another vessel to an associated processor. While many recordkeeping and reporting requirements that apply to buying stations should include both tender vessels and land-based buying stations, not all of the reporting requirements that apply to buying stations should apply to both tender
Under Action 3 of this proposed rule, NMFS would remove the requirement in § 679.5(d) for a buying station to submit a Buying Station Report. The most recent year of landing report data in 2015, show that all 54 active buying stations are associated with shoreside processors that use eLandings. NMFS receives the landing data it needs through eLandings, and so does not need to require that the data be submitted in a Buying Station Report. The Buying Station Report would be removed from the regulations. Removing the requirement to submit a Buying Station Report removes a duplicative reporting requirement and reduces the burden on the regulated public. Buying stations will continue to be required to submit landing reports using eLandings.
To implement proposed Action 3, NMFS would modify references in the regulations to clarify whether certain recordkeeping and reporting requirements apply to tender vessels, buying stations, or both. Additionally, NMFS will remove the qualifier `land-based' from references to buying stations where found in the regulations because buying station is defined in the regulations as a land-based entity. Finally, NMFS will revise the definition of “manager” to effectively include “stationary floating processor” managers.
Under Action 4 of this proposed rule, the definition of mothership in § 679.2 would be revised to simplify the structure of the definition by moving the text of paragraph (1) into the main body of the definition and deleting reserved paragraph (2). This minor technical correction does not substantively change the definition of a mothership.
Pursuant to section 304(b)(1)(A) and section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the BSAI FMP, the GOA FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. Copies of the IRFA are available from NMFS (see
The IRFA describes this proposed rule, why this rule is being proposed, the objectives and legal basis for this proposed rule, the type and number of small entities to which this proposed rule would apply, and the projected reporting, recordkeeping, and other compliance requirements of this proposed rule. It also identifies any overlapping, duplicative, or conflicting Federal rules and describes any significant alternatives to this proposed rule that would accomplish the stated objectives of the Magnuson-Stevens Act and other applicable statues and that would minimize any significant adverse economic impact of this proposed rule on small entities. The description of this proposed rule, its purpose, and its legal basis are described in the preamble and are not repeated here.
For Regulatory Flexibility Act purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
The Small Business Act (SBA) has established size criteria for all other major industry sectors in the United States, including fish processing businesses. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide.
Action 1 of the proposed rule would affect tender vessels and processors that receive deliveries of groundfish from tender vessels. For the purposes of the IRFA, a tender vessel is categorized as a wholesale business servicing the fishing industry. Most tender vessels are independently owned and operated entities that are contracted with processors. The exceptions are tender vessels owned by processors. NMFS does not have data on the number of employees on tender vessels, and therefore will conservatively assume all tender vessels that are independently owned and operated are small entities.
Of the 30 tender vessels affected by this action, five are owned by processors so do not qualify as a small entity. Therefore, there are 25 tender vessels that are small entities under the SBA definition. In 2015, there were 8 processors that received groundfish deliveries from tender vessels. None of these processors affected by this action qualify as small entities for the purposes of the SBA.
Action 2 of the proposed rule would not add new requirements for tender vessels or buying stations; it would only clarify which requirements the entities are subject to. Therefore this action would be expected to have a small positive impact. This action would affect the 30 tender vessels and 54 buying stations that were active in 2015.
Action 3 of the proposed rule would remove a requirement on participants that is not currently used; therefore, it would be expected to have no effect on participants.
Action 4 of the proposed rule would revise the definition of mothership to make it more straightforward and would not modify the definition in a substantive way; therefore, it would be expected to have no effect on participants.
This proposed rule would require modifications to the current recordkeeping and reporting requirements in the Alaska Interagency Electronic Reporting System collection (OMB Control Number 0648-0515). The modifications would include requiring tender vessel operators to complete the data fields on the tLandings tender
This proposed rule would remove the Buying Station Report requirement. NMFS receives the landing data it needs through eLandings, and does not need the data submitted in the Buying Station Report. The Buying Station Report would be discontinued from any future use. Removing the requirement to submit a Buying Station Report removes a duplicative reporting requirement and reduces the burden on the regulated public. Buying stations will continue to be required to submit landing reports using eLandings.
The Analysis did not reveal any Federal rules that duplicate, overlap, or conflict with this proposed rule.
An IRFA also requires a description of any significant alternatives to this proposed rule that would accomplish the stated objectives, are consistent with applicable statutes, and that would minimize any significant economic impact of this proposed rule on small entities. Under each action, NMFS considered two alternatives—the no action alternative and the action alternative. NMFS did not identify any other alternatives that would meet the objectives of these actions at a lower cost and reduced economic impact on small entities. The no action alternative for Action 1 would maintain the existing process of tender vessel operators completing paper fish tickets for each delivery and giving the information to the processor to transcribe and upload into eLandings. Maintaining the manual writing and submission of tender delivery data would not meet the objective of providing timely and accurate landing data. To help reduce the burden of this proposed regulation on small entities for electronic recordkeeping and reporting, NMFS would minimize the cost by developing the tLandings tender workstation application and providing that at no cost to participants to provide services and products useful to the industry, and by providing user support and training. The action alternatives for Actions 2, 3, and 4 have been determined to have either a small positive effect or no effect on participants, and therefore are not discussed further.
This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). NMFS has submitted these requirements to OMB for approval under Control Number 0648-0515. Public reporting burden is estimated to average per response: 15 minutes for IERS application processor registration; 35 minutes for eLandings landing report; 35 minutes for manual landing report; 15 minutes for catcher/processor or mothership eLandings production report; and 35 minutes for tLandings landing report.
Public comment is sought regarding: whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden statement; ways to enhance quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information, to NMFS (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at:
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:
16 U.S.C. 773
The addition and revisions to read as follows:
(c) * * *
(6) * * *
(i)
(e) * * *
(3) * * *
(i)
(5) * * *
(i) * * *
(A) * * *
(
(14)
(ii) The operator of a tender vessel taking delivery of fish or shellfish that is required to be reported to NMFS on a landing report under § 679.5(e)(5) must use tLandings to enter information about each landing of fish or shellfish and must provide that information to the User defined under § 679.2.
(iii) The User must configure and provide the tender vessel operator with the most recent version of the tLandings tender workstation application prior to the tender vessel taking delivery of fish or shellfish.
(iv) The tender vessel operator must log into the configured tLandings tender workstation application and provide the information required on the computer screen. Additional instructions for tLandings is on the Alaska Region Web site at
(v)
(B) The User must upload the data recorded in tLandings by the tender vessel to prepare the initial landing report for a catcher vessel delivering to a tender vessel that is required under § 679.5(e) within the submittal time limit specified under § 679.5(e).
(vi)
(a) * * *
(11)
(ii)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendment 113 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). This proposed rule would modify the Bering Sea and Aleutian Islands (BSAI) Pacific cod fishery to set aside a portion of the Aleutian Islands Pacific cod total allowable catch for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch for processing to shoreside processors located on land west of 170 W. longitude in the Aleutian Islands (Aleutian Islands shoreplants). The harvest set-aside would apply only if specific notification and performance requirements are met, and only during the first few months of the fishing year. This harvest set-aside would provide the opportunity for vessels, Aleutian Islands shoreplants, and the communities where Aleutian Islands shoreplants are located to receive benefits from a portion of the Aleutian Islands Pacific cod fishery, while the notification and performance requirements would preserve an opportunity for the complete harvest of the BSAI Pacific cod resource should complications arise with participation in the harvest set-aside fishery. This proposed rule is intended to promote the goals and objectives of Amendment 113, the FMP, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws.
Submit comments on or before August 31, 2016.
You may submit comments, identified by NOAA-NMFS-2015-0155, by any one of the following methods:
•
•
Electronic copies of Amendment 113 to the FMP and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (collectively, Analysis) prepared for this action may be obtained from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted by mail to NMFS at the above address; emailed to
Julie Scheurer, 907-586-7228.
NMFS manages the groundfish and Pacific cod fisheries in the Exclusive Economic Zone of the BSAI under the FMP. The North Pacific Fishery Management Council (Council) prepared, and the Secretary of Commerce approved, the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable laws. Regulations implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at 50 CFR part 600.
The Council submitted Amendment 113 for review by the Secretary of Commerce. A notice of availability of Amendment 113 was published in the
This proposed rule would modify the BSAI Pacific cod fishery to set aside a portion of the Aleutian Islands Pacific cod total allowable catch (TAC) for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch to Aleutian Islands shoreplants for processing. The harvest set-aside would apply only if specific notification and performance requirements are met, and only during the first few months of the fishing year. The following sections of this preamble provide a description of (1) the BSAI Pacific cod fishery; (2) the need for the proposed rule; and (3) the proposed rule.
To aid the reader, the following glossary table (Table 1) lists the abbreviations, acronyms, and other technical terms most commonly used throughout this document. These terms are defined and discussed further in the following sections of this preamble.
Pacific cod (
The FMP and its implementing regulations at § 679.20(c) require that, after consultation with the Council, NMFS specify an overfishing level (OFL), an acceptable biological catch (ABC), and a TAC for each target species or species group of groundfish, including Pacific cod, on an annual basis. The OFL is the level above which overfishing is occurring for a species or species group. The ABC is the level of a species' or species group's annual catch that accounts for the scientific uncertainty in the estimate of OFL, and any other scientific uncertainty. Under the FMP, the ABC is set below the OFL. The TAC is the annual catch target for a species or species group, derived from the ABC by considering social and economic factors and management uncertainty, and in the case of BSAI Pacific cod, after considering any harvest allocations for guideline harvest level (GHL) fisheries managed by the State of Alaska (State) and occurring within State waters. Under the FMP, the TAC must be set lower than or equal to the ABC.
The OFLs, ABCs, and TACs for BSAI groundfish are specified through the annual harvest specification process. A detailed description of the annual harvest specification process is provided in the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016). The annual harvest specification process for BSAI Pacific cod is briefly summarized here. Specific examples of Pacific cod OFLs, ABCs, TACs, and other apportionments of Pacific cod used in this preamble are based on the 2017 specifications from the final 2016 and 2017 harvest specifications for groundfish of the BSAI unless otherwise noted.
For Pacific cod, the harvest specifications establish an OFL, ABC, and TAC for the Bering Sea subarea (Bering Sea) of the BSAI, and a separate OFL, ABC, and TAC for the Aleutian Islands subarea (Aleutian Islands) of the BSAI. Before the Pacific cod TACs are established, the Council and NMFS consider social and economic factors, and management uncertainty, as well as two factors that are particularly relevant to BSAI Pacific cod: Pacific cod GHL fisheries that occur in the State waters of the BSAI, and an overall limit on the maximum amount of TAC that can be specified for BSAI groundfish.
Currently, the State manages two GHL fisheries for Pacific cod, one that occurs within State waters in the Bering Sea and one that occurs within State waters in the Aleutian Islands. Under current State regulations, each year the Bering Sea GHL fishery is limited to no more than 6 percent of the ABC specified for Pacific cod in the Bering Sea. The Aleutian Islands GHL fishery is limited to no more than 27 percent of the ABC specified for Pacific cod in the Aleutian Islands beginning in 2016, with annual “step-up” provisions that increase the amount of the GHL fishery if it was fully harvested in the previous year. The Aleutian Islands GHL fishery can increase to a maximum of 39 percent of the Aleutian Islands ABC or to a maximum of 15 million pounds (6,804 mt), whichever is less. Section 2.6.3 of the Analysis provides additional description of the GHL fisheries in the BSAI. Pacific cod TACs are specified at reduced levels that take into account the GHL fisheries so that the combined harvest limits from GHL fisheries and the TACs do not exceed the ABCs specified for the Bering Sea or Aleutian Islands.
The Council and NMFS also consider requirements under the FMP and regulations that limit the optimum yield for BSAI groundfish. The FMP and regulations establish 2.0 million metric tons (mt) as the maximum optimum yield of all BSAI groundfish species combined (Section 3.2.2.2 of the FMP and § 679.20(a)(1)). Under this requirement, the sum of the TACs for all groundfish species in the BSAI must be specified within the optimum yield range of 1.4 million to 2.0 million mt (see § 679.20(a)(1)(i)). Typically, NMFS specifies TACs for all BSAI groundfish that total to 2 million mt, even though summed ABCs for all BSAI groundfish species can exceed the upper limit of the optimum yield range. For example, in 2016, the total ABCs for all BSAI groundfish of 3.24 million mt substantially exceeded the 2 million mt limit for BSAI groundfish (81 FR 14773, March 18, 2016). However, the Council recommended and NMFS implemented TACs that equaled 2 million mt for all BSAI groundfish to ensure the 2 million mt optimum yield limit was not exceeded (81 FR 14773, March 18, 2016).
In 2016, the Pacific cod TACs for the Bering Sea and Aleutian Islands were reduced from their maximum permissible limits (
Once the TACs are established, regulations at § 679.20(a)(7)(i) allocate 10.7 percent of the Bering Sea Pacific cod TAC and 10.7 percent of the Aleutian Islands Pacific cod TAC to the Community Development Quota (CDQ) Program for the exclusive harvest by Western Alaska CDQ groups. Section
After subtraction of the CDQ allocation from each TAC, NMFS combines the remaining Bering Sea and Aleutian Islands TACs into one BSAI non-CDQ TAC, which is available for harvest by nine non-CDQ fishery sectors. Regulations at § 679.20(a)(7)(ii)(A) define the nine Pacific cod non-CDQ fishery sectors in the BSAI and specify the percentage allocated to each. The non-CDQ fishery sectors are defined by a combination of gear type (
NMFS manages each of the non-CDQ fishery sectors to ensure harvest of Pacific cod does not exceed the overall annual allocation made to each of the non-CDQ fishery sectors. NMFS monitors harvests that occur while vessels are directed fishing for Pacific cod (specifically targeting and retaining Pacific cod above specific threshold levels) and harvests that occur while vessels are directed fishing in other fisheries and incidentally catching Pacific cod (
An allocation to a non-CDQ fishery sector may be harvested in either the Bering Sea or the Aleutian Islands, subject to the non-CDQ Pacific cod TAC specified for the Bering Sea or the Aleutian Islands. If the non-CDQ Pacific cod TAC is or will be reached in either the Bering Sea or Aleutian Islands, NMFS will prohibit directed fishing for Pacific cod in that subarea for all non-CDQ fishery sectors (see § 679.20(d)(1)(iii)).
Allocations of Pacific cod to the CDQ Program and to the non-CDQ fishery sectors are further apportioned by seasons. Season dates for the CDQ and non-CDQ fishery sectors are established at § 679.23(e)(5). In general, regulations apportion CDQ and non-CDQ fishery sector allocations among three seasons that correspond to the early (A-season), middle (B-season), and late (C-season) portions of the year. The specific seasonal dates established for the CDQ Program and each of the non-CDQ fishery sectors are provided in the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016). Depending on the specific CDQ Program or non-CDQ fishery sector allocation, between 40 percent and 70 percent of the Pacific cod allocation is apportioned to the A-season, historically the most lucrative fishing season due to the presence of valuable roe in the fish and the good quality of the flesh during that time of year.
The allocation of Pacific cod among the CDQ Program and the nine non-CDQ fishery sectors, as well as the seasonal apportionment of those allocations, create a large number of separate sectoral-seasonal allocations. To help ensure the efficient management of these allocations, regulations allow NMFS to reallocate (rollover) any unused portion of a seasonal apportionment from any non-CDQ fishery sector (except the jig sector) to that sector's next season during the current fishing year, unless the Regional Administrator determines a non-CDQ fishery sector will not be able to harvest its allocation (see § 679.20(a)(7)(iv)(B)).
The 2017 ABCs, OFLs, TACs, CDQ and non-CDQ fishery sector allocations, and seasonal apportionments of BSAI Pacific cod are shown in Table 3 of this preamble. Table 3 of this preamble includes data from Tables 2 and 9 in the 2016 and 2017 final harvest specifications for the BSAI groundfish fisheries (81 FR 14773, March 18, 2016).
A variety of vessels using a variety of gear types harvest the Aleutian Islands Pacific cod TAC. Trawl CV and trawl CP vessels have been among the most active participants in the Aleutian Islands Pacific cod fishery. The trawl CV fishery sector harvested 55 percent of the Pacific cod from the Aleutian Islands on an average annual basis during 2003 through 2015 (Table 2-17 of the Analysis), while trawl CP sectors, which include the AFA and the Amendment 80 fishery sectors, harvested 29 percent of the Pacific cod from the Aleutian Islands on an average annual basis during 2003 through 2015 (Table 2-10 of the Analysis). The hook-and-line CP sector is the only other sector that has consistently participated in the Aleutian Islands Pacific cod fishery annually. The hook-and-line CP sector harvested 14 percent of the Pacific cod from the Aleutian Islands on an average annual basis during 2003 through 2015 (Table 2-13 of the Analysis). Non-trawl CVs have harvested only a very small portion of the Pacific cod from the Aleutian Islands: approximately 2 percent of the Pacific cod harvest on an average annual basis during 2003 through 2015 (Table 2-20 of the Analysis). Section 2.6.6 of the Analysis provides additional detail on harvesting in the Aleutian Islands.
Trawl CVs deliver their catch of Aleutian Islands Pacific cod to several types of processors in the Aleutian Islands. Some trawl CVs deliver their catch to CPs for processing on board the CP. In this situation, the CP is acting as a mothership. These CPs also harvest and process their own catch of Aleutian Islands Pacific cod. Some trawl CVs deliver their catch to stationary floating processors anchored in specific locations that receive and process catch on board but do not harvest and process their own catch. Some trawl CVs deliver their catch to shoreside processing facilities that are physically located on land within the Aleutian Islands; these facilities are defined as “Aleutian Islands shoreplants” in this proposed rule.
Currently, Aleutian Islands shoreplants are located in the communities of Adak and Atka, and these shoreplants can receive deliveries of Pacific cod from CVs. Although the Atka shoreplant has not received and processed Aleutian Islands Pacific cod, the shoreplant in Adak has received and processed relatively large amounts of Pacific cod. The vast majority of Aleutian Islands Pacific cod delivered to the Adak shoreplant comes from catch harvested by trawl CVs (Table 2-32 of the Analysis). The percentage of total Aleutian Islands Pacific cod processed by Aleutian Islands shoreplants has
The development of a local CV fleet has long been a goal of the local leadership in Adak, but currently the number of locally owned or locally operated CVs is limited. A variety of programs have been implemented to encourage economic opportunities for local CVs and processing operations. Some of these programs include the allocation of the Aleutian Islands pollock TAC to the Aleut Corporation, an Alaska Native tribal organization that represents specific community interests in Adak (70 FR 9856; March 1, 2005), allocations of Western Aleutian Islands golden king crab to the Adak Community Development Corporation under the BSAI Crab Rationalization Program (70 FR 10174; March 2, 2005), and the establishment of a Community Quota Entity Program in the Aleutian Islands that provides additional fishing opportunities for residents of fishery dependent communities in the Aleutian Islands and sustains participation in the halibut and sablefish IFQ fisheries (79 FR 8870; February, 14, 2014). Adak also acts as a port of embarkation and disembarkation for personnel on board CPs and CVs harvesting groundfish in the Aleutian Islands.
Despite only a having a small local CV fleet, Adak has a substantial degree of engagement in the Aleutian Islands Pacific cod fishery. Adak is home to a large shoreplant. Pacific cod is the primary species delivered to and processed at the Adak shoreplant. The Adak shoreplant has the capability to process one million round pounds (454 mt) of Pacific cod daily. When operational, the Adak shoreplant primarily receives and processes Pacific cod harvested from January through March, the period corresponding to the A season. Processing revenue from the A-season Aleutian Islands Pacific cod fishery has been the main source of income for the Adak shoreplant (and the primary source of raw fish tax revenue for the City of Adak). The processing of A-season Aleutian Islands Pacific cod has historically accounted for approximately 75 percent of the Adak shoreplant's revenue. The Adak shoreplant has not been operated continuously over the last decade. In some years, the facility has not received any deliveries of groundfish, crab, or halibut due to a variety of operational and logistical challenges, as well as changes in fishery management measures. Section 2.6.8 of the Analysis provides additional detail on Adak shoreplant processing operations.
Vessels operating out of Atka participate in halibut fisheries, and receive groundfish allocations through the Aleutian Pribilof Island Community Development Association (APICDA) CDQ group. As a member of APICDA, Atka benefits from CDQ shares in a number of commercial fisheries, including Pacific cod. In 2016, APICDA received an allocation of 15 percent, or 193 mt, of the Aleutian Islands CDQ Pacific cod allocation, as well as allocations of halibut, crab, and other Aleutian Islands groundfish (See the 2016 CDQ Program allocation matrix available at
The Atka shoreplant primarily processes halibut and sablefish. The local commercial fleet primarily harvests halibut, with limited harvests of sablefish. However, the community and processor have made substantial infrastructure investments to make the shoreplant a year-round operation with the capacity to process Pacific cod. Once completed, the processing capacity of the Atka shoreplant is anticipated to be approximately 400,000 round pounds (181 mt) of Pacific cod per day. Section 2.6.8 of the Analysis provides additional detail on Atka shoreplant processing operations.
Since 2008, trawl CVs have primarily delivered their catch of Aleutian Islands Pacific cod to a small group of CPs that operate as motherships (processing Pacific cod delivered by trawl CVs). As deliveries of Aleutian Islands Pacific cod harvest from trawl CVs to CPs has increased in recent years, the amount of trawl CV harvest delivered to Aleutian Islands shoreplants has decreased. From 2003 through 2007, an average of 69 percent of the annual trawl CV harvest of Aleutian Islands Pacific cod was delivered to Aleutian Islands shoreplants (see Table 2-32 of the Analysis), with the remainder of the harvest delivered to CPs acting as motherships or to stationary floating processors. From 2008 through June 2015, an average of 34 percent of the annual trawl CV harvest of Aleutian Islands Pacific cod was delivered to Aleutian Islands shoreplants, with the remainder of the harvest delivered to CPs acting as motherships or to stationary floating processors (see Table 2-32 of the Analysis). Even if 2011 and 2015 (the years when the Aleutian Islands shoreplants were not operational) are removed from consideration, an average of 45 percent of the annual trawl CV harvest of Aleutian Islands Pacific cod was delivered to Aleutian Islands shoreplants from 2008 through June 2015, a reduction of approximately 35 percent in the annual average between 2003 and 2007. Additionally, CPs have demonstrated the capacity to process the entire harvest of Pacific cod in the Aleutian Islands in years when no Aleutian Islands shoreplant is in operation. This proposed rule is intended in part to mitigate the risk that vessels, Aleutian Islands shoreplants, and the communities in which they are located will be preempted from participating in the Aleutian Islands Pacific cod fishery.
Section 2.6 of the Analysis provides additional description of the factors that have affected the harvesting and processing of Pacific cod in the Aleutian Islands.
In 2008, the Council began to examine the need for processing sideboards for processing vessels operating in the Aleutian Islands. As the Council considered this issue over the next several years, it recognized that several other management actions under consideration by the Council might greatly affect any action to modify the Aleutian Islands Pacific cod fishery.
Since 2008, Aleutian Islands fishing communities, and specifically the community of Adak and its shoreplant, have lost their historical place in the Pacific cod fishery. The amount of Pacific cod being delivered to Aleutian Islands shoreplants has been highly variable and vulnerable, which is not conducive to stable shoreside operations. Several factors have contributed to this instability, and therefore the need for this proposed action, including decreased Pacific cod biomass in the Aleutian Islands subarea; the establishment of separate OFLs, ABCs, and TACs for Pacific cod in the Bering Sea and the Aleutian Islands (referred to as the “BSAI TAC split”); changing Steller sea lion protection measures; and changing fishing
By October 2013, decisions on some of these other management actions were completed, and the Council again considered modifications to the Aleutian Islands Pacific cod fishery at its February 2014 meeting. After receiving recommendations from the Council's Advisory Panel and testimony from the public, the Council developed a suite of alternatives and options for consideration. The Council adopted its preferred alternative for Amendment 113 at its October 2015 meeting.
Pacific cod biomass in the Aleutian Islands declined steadily from about 2000 until 2014 (see Section 3.3 of the Analysis), although the stock assessment in 2015 indicated some stabilization. Prior to 2011, the Pacific cod stock assessment model for the BSAI had been based on an abundance estimate from the eastern Bering Sea that was expanded to the entire BSAI. In 2011, based on information that the proportion of the combined BSAI biomass in the Aleutian Islands subarea might be smaller than previously estimated, the Council requested a stock assessment specific to Pacific cod in the Aleutian Islands subarea. Prior to the Aleutian Islands-specific stock assessment, approximately 16 percent of the Pacific cod biomass was attributed to the Aleutian Islands; however, the stock assessment revealed that the actual distribution was in the 7 to 9 percent range. After considering the combined effects of a declining Aleutian Islands biomass of Pacific cod, revisions to the stock assessment, and the proportion of the stock attributed to the Aleutian Islands, the Council recommended splitting the BSAI Pacific cod TAC between the two subareas. See Section 3.3 of the Analysis for more information about the BSAI TAC split. The declining biomass, revised stock assessment, and BSAI TAC split resulted in a substantial decrease in the TAC available for harvest in the Aleutian Islands.
The western distinct population segment of Steller sea lions was listed as threatened under the Endangered Species Act in 1990 (55 FR 49204, November 26, 1990), and reclassified as endangered in 1997 (62 FR 30772, June 5, 1997). Since then, NMFS has restricted fishing with trawl gear near Steller sea lion rookeries and managed fisheries to limit and disperse harvest in important Steller sea lion foraging areas. In 2011, NMFS increased the areas of closure for directed fishing for Pacific cod in the western Aleutian Islands to ensure the fisheries were not likely to jeopardize the continued existence of the western distinct population segment of Steller sea lions or adversely modify their designated critical habitat. These protection measures reduced harvest opportunities for Pacific cod in the Aleutian Islands, shifting more fishing effort to the Bering Sea, which contributed to the decline in deliveries of Pacific cod to Aleutian Islands shoreplants.
In 2014, NMFS implemented new Steller sea lion protection measures in the Aleutian Islands (79 FR 70286, November 25, 2014) that are less restrictive than the measures previously in place; however, in that year NMFS also split the BSAI TAC into separate TACs for the Bering Sea and Aleutian Islands subareas. While the BSAI TAC split greatly reduced the potential impacts of the Pacific cod fisheries on Steller sea lion Pacific cod prey resources, it also resulted in a substantial reduction in the amount of Pacific cod available for harvest in the Aleutian Islands. Consequently, implementation of the less restrictive Steller sea lion protection measures in 2014 did not improve opportunities for deliveries of Pacific cod to shoreside processors that support communities in the Aleutian Islands, given the effects of the BSAI split.
Additional information about the effects of Steller sea lion protection measures on the Aleutian Islands Pacific cod fishery and Aleutian Islands communities is available in Section 3.3 of the EIS prepared for the Steller sea lion protection measures (Available at
Some of the recent decline in processing of Aleutian Islands Pacific cod by Aleutian Islands shoreplants is likely due to the reduction in Aleutian Islands Pacific cod biomass, the BSAI TAC split, and Steller sea lion protection measures, but changes in fishing behavior by the offshore sector, starting with the implementation of two types of rationalization programs in 2008, has also contributed to the decline in Aleutian Islands Pacific cod delivered and processed at Aleutian Islands shoreplants. In 2008, both Amendment 80 and Amendment 85 were implemented. Amendment 80 provided an allocation of the TACs for six groundfish species, including Pacific cod, to facilitate the development of cooperative arrangements among the eligible non-pelagic trawl CPs, thus allowing opportunities for consolidation within the Amendment 80 sector and allowing for increased processing participation by the sector in other fisheries such as Aleutian Islands Pacific cod. Amendment 85 reduced the allocation of BSAI Pacific cod to trawl sectors from 47 percent to 37.8 percent and further apportioned the BSAI Pacific cod allocation among the different trawl sectors.
As a result of the implementation of Amendment 80 and Amendment 85, the fishing behavior for the trawl sectors changed in the Aleutian Islands Pacific cod fishery. Section 2.7.1 of the Analysis shows that prior to 2008, a majority of the Aleutian Islands Pacific cod processed by the offshore sector came from CP harvest, but after 2008, CV deliveries of Aleutian Islands Pacific cod to CPs played a more significant role in the offshore processing. The percentage of the total CV deliveries of Aleutian Islands Pacific cod to shoreplants decreased from an annual average of 69 percent prior to 2008, to an annual average of 34 percent since 2008, with the remainder being delivered to the offshore sector (motherships and floating processors). Before Amendment 80 to the FMP was implemented in 2008, between 3 and 6 percent of the total BSAI Pacific cod landings were made at Adak. However, since 2012, the share of total BSAI Pacific cod landings made at Adak has been 1 to 2 percent. The flexibility of Amendment 80 likely afforded the offshore sector the ability to change its fishing behavior in the Aleutian Islands Pacific cod fishery to lessen the impacts of Amendment 85, a lower Aleutian Islands Pacific cod biomass, and the BSAI Pacific cod TAC split. When compared to the offshore sector, the Aleutian Islands shoreplants have little ability to change their behavior to reduce the impacts resulting from a lower Aleutian Islands Pacific cod biomass and the BSAI Pacific cod TAC split, since the Aleutian Islands shoreplants rely entirely on CV deliveries of Aleutian Islands Pacific cod. This disparity in flexibility between the offshore sector and Aleutian Islands shoreplants leaves the Aleutian Islands shoreplants at a significant disadvantage in adapting to changes in the Aleutian Islands Pacific cod fishery.
Generally, this proposed rule would establish a harvest set-aside in which a portion of the Aleutian Islands Pacific
The Council determined and NMFS agrees that a harvest set-aside is needed for several reasons. First, the Council acknowledged that the TAC for Aleutian Islands Pacific cod was significantly lower than predicted. Second, the rationalization programs, and particularly the Amendment 80 Program, have allowed an influx of processing capacity into the Aleutian Islands Pacific cod fishery capable of processing the Aleutian Islands Pacific cod TAC, exacerbating the need for Council action to support Aleutian Islands fishing communities. The Council determined that without Council action, there would be a continued risk that fishing communities, and particularly Aleutian Islands shoreplants and the communities in which they are located, would not be able to sustain participation in the Aleutian Islands Pacific cod fishery. This proposed rule would maintain opportunities for remote fishing communities to participate in the Pacific cod fishery. Third, the Council recognized that multiple sectors have historically participated in the Aleutian Islands Pacific cod fishery, but for the CP sectors, the Aleutian Islands Pacific cod fishery contributed only 1 to 3 percent of total first wholesale gross revenue in recent years, compared to the shoreplants (Adak), where almost all of their total first wholesale gross revenue was from Aleutian Islands Pacific cod during the same period.
This proposed rule would strike a balance between providing fishing community protections and ensuring that the fishery sectors have a meaningful opportunity to fully harvest their allocations by including several thresholds to prevent Aleutian Islands Pacific cod from being unharvested. This proposed rule would provide benefits and stability to fishery-dependent fishing communities in the Aleutian Islands and is responsive to changes in management regimes like rationalization programs that necessitate putting protections in place to protect other non-rationalized fisheries.
The Council also stressed that this proposed rule would not affect any sector's BSAI Pacific cod allocation or the CDQ Pacific cod allocation in the Aleutian Islands. Non-CDQ sectors would continue to receive the allocations established under Amendment 85.
The Council recognized that neither of the existing Aleutian Islands shoreplants is currently processing Aleutian Islands Pacific cod. However, the Council also recognized that the protection measures and harvest set-aside in this proposed rule would minimize the risk of exclusion from, and maintain opportunities for participation in, the Aleutian Islands Pacific cod fishery by Aleutian Islands harvesters, processors, and communities.
This proposed rule would revise regulations to provide additional opportunities for harvesters to deliver Aleutian Islands Pacific cod to Aleutian Islands shoreplants. The Aleutian Islands Pacific cod TAC is not sufficient to allow all sectors to prosecute the Aleutian Islands Pacific cod fishery at their historical levels. Without protections, Aleutian Islands harvesters, shoreplants, and fishing communities could be preempted from the fishery by the offshore sector. This proposed action would create a set aside for vessels delivering to shoreplants, especially in low TAC years.
This proposed rule is intended to provide benefits to harvesters delivering to Aleutian Islands shoreplants, the shoreplants, and the communities where those shoreplants are located. This objective is consistent with long-standing policies recommended by the Council and regulations established by NMFS to provide harvesting and processing opportunities for communities in the Aleutian Islands.
Because of their remote location and limited economic alternatives, Aleutian Islands communities rely on harvesting and processing of the nearby fishery resources to support and sustain their communities. This proposed rule is intended to be directly responsive to National Standard 8 of the Magnuson-Stevens Act that states conservation and management measures shall take into account the importance of fishery resources to fishing communities in order to provide for the sustained participation of such communities, and to the extent practicable, minimize adverse economic impacts on such communities (16 U.S.C. 1851(a)(8)). Additional information on the history leading up to this proposed action and the Council's purpose and need statement are provided in Sections 2.3 and 2.2 of the Analysis, respectively.
The following section of this preamble describes how this proposed rule would revise management of the BSAI Pacific cod fishery to provide harvesting and delivery opportunities for Aleutian Islands communities, while considering and accommodating the harvesting and delivery patterns and needs of other participants in the BSAI Pacific cod fishery.
This proposed rule would modify several aspects of the BSAI Pacific cod fishery. This proposed rule would set aside a portion of the Aleutian Islands Pacific cod non-CDQ TAC for harvest by vessels directed fishing for Aleutian Islands Pacific cod for processing by Aleutian Islands shoreplants. However, the harvest set-aside would apply only if specific notification and performance requirements are met, and only during the first few months of the fishing year.
In order to implement Amendment 113, this proposed rule would:
• Define the term “Aleutian Islands shoreplant” in regulation;
• Calculate and define the amount of the Aleutian Islands Pacific cod TAC that would be available as a directed fishing allowance (DFA) and the amount that would be available as an incidental catch allowance (ICA);
• Limit the amount of A-season Pacific cod that could be harvested by the trawl CV sector in the Bering Sea prior to March 21 (Bering Sea Trawl CV A-Season Sector Limitation);
• Set aside some or all of the Aleutian Islands Pacific cod non-CDQ DFA for harvest by vessels directed fishing for Aleutian Islands Pacific cod for processing by Aleutian Islands shoreplants from January 1 to March 15 (Aleutian Islands CV Harvest Set-Aside);
• Require that either the City of Adak or the City of Atka annually provide notification to NMFS prior to November 1 of its intent to process Aleutian Islands Pacific cod during the upcoming fishing year in order for the Aleutian Islands CV Harvest Set-Aside and the Bering Sea Trawl CV A-Season Sector Limitation to be effective in the upcoming fishing year; and
• Remove the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside if less than 1,000 mt of the harvest set-aside is delivered to (
The following sections provide greater detail about the rationale for and effect of the regulatory changes proposed in this rule.
This proposed rule would add a definition to § 679.2 for “Aleutian Islands shoreplant” to mean a processing facility that is physically located on land west of 170° W. longitude within the State of Alaska. This proposed definition is needed because the existing term “shoreside processor” in § 679.2 can include processing vessels that are moored or otherwise fixed in a location (
This proposed rule would add a new paragraph (viii) to § 679.20(a)(7). This new paragraph would include the primary regulatory provisions of this proposed rule. To aid the reader in understanding how this proposed rule would apply, NMFS provides examples of the proposed Aleutian Islands CV Harvest Set-Aside, harvest limitations, and performance measures in this section of the preamble using 2017 harvest specifications for BSAI Pacific cod (81 FR 14773, March 18, 2016). For the remainder of this preamble, unless otherwise specified, all references refer to non-CDQ allocations and apportionments of BSAI Pacific cod.
This proposed rule would require that NMFS annually specify an ICA and a DFA derived from the Aleutian Islands non-CDQ TAC. Each year, during the annual harvest specifications process described at § 679.20(c), NMFS would specify an amount of Aleutian Islands Pacific cod that NMFS estimates will be taken as incidental catch when directed fishing for non-CDQ groundfish other than Pacific cod in the Aleutian Islands. This amount would be the Aleutian Islands ICA and would be deducted from the Aleutian Islands non-CDQ TAC. The amount of the Aleutian Islands non-CDQ TAC remaining after subtraction of the Aleutian Islands ICA would be the Aleutian Islands DFA.
NMFS would specify the Aleutian Islands ICA and DFA so that NMFS could clearly establish the amount of Aleutian Islands Pacific cod that would be used in determining the amount of the harvest set-aside described in the following sections of this preamble. It would also aid the public in knowing how much of the Aleutian Islands non-CDQ TAC is available for directed fishing prior to the start of fishing to aid in the planning of fishery operations.
Although the amount of the Aleutian Islands ICA may vary from year to year, NMFS anticipates that an Aleutian Islands ICA of 2,500 mt likely would be needed to support incidental catch of Pacific cod in other Aleutian Islands non-CDQ directed groundfish fisheries. NMFS examined recent levels of incidental catch of Pacific cod in other Aleutian Islands non-CDQ groundfish fisheries from 2013 through 2015, and has initially determined that 2,500 mt should adequately account for incidental catch if Amendment 113 is approved and implemented. In future years, NMFS would specify the Aleutian Islands ICA in the annual harvest specifications based on recent and anticipated incidental catch of Aleutian Islands Pacific cod in other Aleutian Islands non-CDQ directed groundfish fisheries.
Using the 2017 Aleutian Islands non-CDQ TAC from Table 3 (11,465 mt), and assuming an Aleutian Islands ICA of 2,500 mt, the 2017 Aleutian Islands DFA would equal 8,965 mt (11,465 mt−2,500 mt = 8,965 mt). Under this proposed rule, the Aleutian Islands DFA would be the maximum amount of Pacific cod available for directed fishing by all non-CDQ fishery sectors in all seasons in the Aleutian Islands.
As noted earlier in this preamble, trawl CVs harvest almost all of the Aleutian Islands Pacific cod that is received for processing by Aleutian Islands shoreplants. Additionally, the trawl CV sector can harvest its entire allocation of BSAI Pacific cod in the Bering Sea, and in recent years has harvested its A-season BSAI Pacific cod allocation very early in the A season. In the Bering Sea, the fishery starts in earnest on January 20, with a peak in fishing around mid-February, followed by a slow decline in catch during March. In the Aleutian Islands, the season is significantly shorter, with fishing effort ramping up during the last two weeks in February and peaking in early March, followed by a dramatic decline in mid-March. The Pacific cod fishery in the Aleutian Islands starts later than in the Bering Sea in part because of when Pacific cod aggregate in the Aleutian Islands, allowing efficient harvest by trawl vessels. Because the trawl CV sector can harvest its entire A-season allocation in the Bering Sea and can harvest it very quickly, there may be no Pacific cod available for harvest during the A-season in the Aleutian Islands. Setting aside an amount of the BSAI trawl CV sector A-season allocation for harvest and delivery in the Aleutian Islands would provide the opportunity for vessels, Aleutian Islands shoreplants, and the communities where Aleutian Islands shoreplants are located to receive benefits from a portion of the BSAI Pacific cod fishery.
In recent years, the trawl CV sector has harvested its A-season BSAI Pacific cod allocation very quickly, primarily because the trawl CV sector has been able to harvest almost its entire BSAI Pacific cod allocation in the Bering Sea. For example, in 2014, NMFS closed the trawl CV sector to directed fishing on March 16 (79 FR 15255; March 19, 2014). In 2015, NMFS closed the trawl CV sector to directed fishing on February 27 (80 FR 11332; March 3, 2015). This rapid rate of trawl CV harvest in the Bering Sea restricts potential harvesting and delivery opportunities for trawl CVs that participate in the Aleutian Islands Pacific cod fishery and Aleutian Islands shoreplants during the lucrative A-season.
To prevent the trawl CV sector from harvesting its entire BSAI A-season Pacific cod allocation in the Bering Sea before vessels can harvest Aleutian Islands Pacific cod for processing by Aleutian Islands shoreplants, this proposed rule would establish the Bering Sea Trawl CV A-Season Sector Limitation to limit the amount of the trawl CV sector's A-season allocation that can be harvested in the Bering Sea prior to March 21. The Bering Sea Trawl CV A-Season Sector Limitation would ensure that some of the trawl CV sector's A-season allocation remains available for harvest in the Aleutian Islands by vessels that deliver their catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for
After calculating the Aleutian Islands ICA and DFA, NMFS would calculate the Bering Sea Trawl CV A-Season Sector Limitation and the amount of the trawl CV sector A-season allocation that could be harvested in the Bering Sea prior to March 21. The Bering Sea Trawl CV A-Season Sector Limitation would be an amount equal to the lesser of either the Aleutian Islands DFA (as described above) or 5,000 mt. The Bering Sea Trawl CV A-Season Sector Limitation also would be equivalent to the Aleutian Islands CV Harvest Set-Aside, which would be the amount reserved for harvest by vessels directed fishing for Aleutian Islands Pacific cod for processing by Aleutian Islands shoreplants, described in the following section of this preamble. The amount of the trawl CV sector's A-season allocation that could be harvested in the Bering Sea prior to March 21 would be the amount of Pacific cod that remained after deducting the Bering Sea Trawl CV A-Season Sector Limitation from the BSAI trawl CV sector A-season allocation listed in the annual harvest specifications (and as determined at § 679.20(a)(7)(iv)(A)(
The Council considered a range of options on the amount of the Bering Sea Trawl CV A-Season Sector Limitation, and the specific date when the limitation should be lifted. The Council considered amounts for the Bering Sea Trawl CV A-Season Sector Limitation ranging from 3,000 to 7,000 mt. The Council determined and NMFS agrees that a maximum of 5,000 mt is the appropriate amount because it represents a large percentage of the total amount of Pacific cod available to the non-CDQ fishery sectors in recent years, and is in the range necessary to provide benefits to Aleutian Islands fishing communities, including shoreplant operations, when considered in combination with the GHL A-season harvest. Additionally, the Analysis shows that 5,000 mt is the approximate long-term average of the amount of Pacific cod processed at Aleutian Islands shoreplants between 2003 and 2015, when Aleutian Islands shoreplants were operational (Section 2.7.1.2 of the Analysis).
The Council also considered three dates—March 1, 15, and 21—for when the Bering Sea Trawl CV A-Season Sector Limitation should be lifted. Recent trawl CV sector harvest patterns from 2014 and 2015 show that without the limitation on harvests in the Bering Sea in place until March 21, the entire trawl CV allocation could be taken before Aleutian Islands Pacific cod have typically aggregated in early- or mid-March (see Section 2.7.1.1 of the Analysis). The March 21 date would best preserve the opportunity for vessels to continue to fish in the Aleutian Islands without having the entire A-season trawl CV sector allocation taken in the Bering Sea. The March 21 date also would not occur so late in the year that the trawl CV sector would be precluded from fully harvesting its A-season allocation. As shown in Table 30 in Section 2.7.1.1 of the Analysis, in only 3 of the 13 years between 2003 and 2015 did the trawl CV sector take the entire A-season (from January 20 until April 1) to harvest its BSAI Pacific cod A-season allocation. In the other years during this period, on average, the trawl CV sector A-season fishery closed on March 15.
Using the 2017 Aleutian Islands non-CDQ TAC from Table 3 (11,465 mt), and assuming an Aleutian Islands ICA of 2,500 mt, the Aleutian Islands DFA would be 8,965 mt. With a DFA of 8,965 mt, the Bering Sea Trawl CV A-Season Sector Limitation would be 5,000 mt, because 5,000 mt is less than the DFA of 8,965 mt. With a Bering Sea Trawl CV A-Season Sector Limitation of 5,000 mt, the maximum amount of Pacific cod that could be harvested in the Bering Sea by the trawl CV sector during the A-season prior to March 21 would be 31,732 mt (
This proposed rule would require that all, or some portion, of the Aleutian Islands DFA be set aside for harvest by vessels directed fishing for Aleutian Islands Pacific cod for processing by Aleutian Islands shoreplants. This Aleutian Islands CV Harvest Set-Aside would be available for harvest by vessels using any authorized gear type and that deliver their catch to Aleutian Islands shoreplants for processing. NMFS would account for harvest and processing of Aleutian Islands Pacific cod under the Aleutian Islands CV Harvest Set-Aside separate from, and in addition to, its accounting of Aleutian Islands Pacific cod catch by the nine non-CDQ fishery sectors established under Amendment 85 to the FMP. Because of this separate accounting, the proposed Aleutian Islands CV Harvest Set-Aside would not increase or decrease the amount of BSAI Pacific cod allocated to any of the non-CDQ fishery sectors. The Aleutian Islands CV Harvest Set-Aside would apply from January 1 until March 15 of each year, unless certain notification and performance measures, described in the following section of the preamble, are not satisfied.
The amount of the Aleutian Islands CV Harvest Set-Aside would be calculated as described above for the Bering Sea Trawl CV A-Season Sector Limitation. It would be an amount equal to the lesser of either 5,000 mt or the Aleutian Islands DFA. NMFS would notify the public of the Aleutian Islands CV Harvest Set-Aside through the annual harvest specifications process.
When the Aleutian Islands CV Harvest Set-Aside is set equal to the Aleutian Islands DFA, directed fishing for Pacific cod in the Aleutian Islands could only be conducted by vessels that deliver their catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing. Vessels that do not want to deliver their directed catch of Aleutian Islands Pacific cod to Aleutian Islands shoreplants for processing would be prohibited from directed fishing for Pacific cod in the Aleutian Islands during the time the Aleutian Islands CV Harvest Set-Aside is in effect. These vessels would be permitted to conduct directed fishing for groundfish other than Pacific cod in the Aleutian Islands during the time the Aleutian Islands CV Harvest Set-Aside is in effect and their harvests of Pacific cod would accrue toward the Aleutian Islands ICA. CPs would be permitted to
When the Aleutian Islands DFA is greater than 5,000 mt, and therefore the Aleutian Islands CV Harvest Set-Aside is set equal to 5,000 mt, the difference between the DFA and the Aleutian Islands CV Harvest Set-Aside would be available for directed fishing by all non-CDQ fishery sectors with sufficient A-season allocations and could be processed by any eligible processor. This difference would be called the “Aleutian Islands Unrestricted Fishery.” In years when there would be both an Aleutian Islands CV Harvest Set-Aside and an Aleutian Islands Unrestricted Fishery, vessels could conduct directed fishing for Pacific cod in the Aleutian Islands and deliver their catch to Aleutian Islands shoreplants or to any eligible processor for processing as long as the Aleutian Islands Unrestricted Fishery is open to directed fishing. CPs would be permitted to conduct directed fishing for Pacific cod in the Aleutian Islands as long as the Aleutian Islands Unrestricted Fishery is open to directed fishing. NMFS would determine whether the Aleutian Islands Unrestricted Fishery is sufficient to support a directed fishery and would notify the public through a notice in the
While the Aleutian Islands CV Harvest Set-Aside is in effect, NMFS would account for Aleutian Islands Pacific cod caught by vessels and delivered to Aleutian Islands shoreplants for processing against the appropriate fishery sector allocation, the ICA or the DFA, and the Aleutian Islands CV Harvest Set-Aside or the Aleutian Islands Unrestricted Fishery. For example, if a pot CV greater than 60 ft LOA conducted directed fishing for Aleutian Islands Pacific cod and delivered that catch to an Aleutian Islands shoreplant for processing while the Aleutian Islands CV Harvest Set-Aside was in effect, NMFS would deduct that Pacific cod from (1) the 60 ft LOA or greater pot CV sector's A-season allocation, and (2) that portion of the Aleutian Islands DFA that is the Aleutian Islands CV Harvest Set-Aside. If that same vessel conducted directed fishing for Aleutian Islands Pacific cod and delivered that catch offshore while the Aleutian Islands CV Harvest Set-Aside was in effect, NMFS would deduct that Pacific cod from (1) the 60 ft LOA or greater pot CV sector's A-season allocation, and (2) that portion of the Aleutian Islands DFA that is the Aleutian Islands Unrestricted Fishery (if available). If no portion of the Aleutian Islands DFA were available for the Aleutian Islands Unrestricted Fishery, that catch would have to be delivered to an Aleutian Islands shoreplant. If that same vessel conducted directed fishing for sablefish in the Aleutian Islands, retained Pacific cod up to the maximum retainable amount, and delivered its sablefish and Pacific cod catch to an Aleutian Islands shoreplant for processing while the Aleutian Islands CV Harvest Set-Aside was in effect, NMFS would deduct that Pacific cod from the Aleutian Islands ICA, and it would not accrue toward the set-aside.
If certain notification and performance measures are met, the Aleutian Islands CV Harvest Set-Aside would be in effect from January 1 until March 15 of each year. If the entire set-aside was harvested and delivered prior to March 15, the Bering Sea Trawl CV A-Season Sector Limitation and Aleutian Islands CV Harvest Set-Aside would be lifted. The Aleutian Islands CV Harvest Set-Aside would end at noon on March 15 even if the entire set-aside had not been harvested and delivered to Aleutian Islands shoreplants. When the set-aside ends, any remaining Aleutian Islands DFA could be harvested by any non-CDQ fishery sector with remaining A-season allocation, and the harvest could be delivered to any eligible processor. If a vessel had been directed fishing for Aleutian Islands Pacific cod, but had not yet delivered that Pacific cod for processing when the harvest set-aside was lifted, that vessel could deliver its Pacific cod to any eligible processor. If a vessel had been directed fishing for Aleutian Islands Pacific cod, but had not yet delivered that Pacific cod for processing when the Aleutian Islands Unrestricted Fishery closed, but the Aleutian Islands CV Harvest Set-Aside was still in effect, it would be required to deliver that Pacific cod to an Aleutian Islands shoreplant for processing or be in violation of the directed fishing closure.
The Council determined and NMFS agrees that the March 15 date for lifting the Aleutian Islands CV Harvest Set-Aside is preferred for several reasons. On average, March 15 represents the average date of the peak of the Aleutian Islands Pacific cod fishery for CVs. During the period analyzed (2003 through 2015), a significant portion of Aleutian Islands Pacific cod was not delivered shoreside until mid-March (see Table 2-37 of the Analysis). Establishing a date much earlier than March 15 to relieve the Aleutian Islands CV Harvest Set-Aside would not meet the Council's goals to sustain participation in the Aleutian Islands Pacific cod fishery by Aleutian Islands communities. The protections afforded by reserving a portion of the Aleutian Islands Pacific cod non-CDQ TAC for vessels delivering to Aleutian Islands shoreplants would be lifted before the Pacific cod aggregated on the Aleutian Islands fishing grounds.
The Council and NMFS considered earlier dates by which to lift these restrictions, but given historical harvesting and delivery patterns for Aleutian Islands Pacific cod, the longer the Aleutian Islands CV Harvest Set-Aside remains in effect during the A-season each year, the greater the opportunity for complete harvest and delivery of the Aleutian Islands CV Harvest Set-Aside. The March 15 date provides greater social and economic stability for Aleutian Islands fishing communities than earlier dates. Limiting the duration of the Aleutian Islands CV Harvest Set-Aside to March 15 also would provide an opportunity for CPs to harvest Pacific cod, and for CVs to harvest and deliver Pacific cod to CPs or stationary floating processors, before the end of the A season. The proposed March 15 date balances the opportunities for all participants. Additional information is provided in Section 2.7.2.4 of the Analysis.
The Council and NMFS considered different maximum amounts for the Aleutian Islands CV Harvest Set-Aside: 3,000 mt, 5,000 mt, and 7,000 mt. For reasons described under the Bering Sea Trawl CV A-Season Sector Limitation section of this preamble, they determined 5,000 mt represents an adequate and appropriate amount for the Aleutian Islands CV Harvest Set-Aside. Under this proposed rule, any amount of the Aleutian Islands DFA above the Aleutian Islands CV Harvest Set-Aside would be available to any sector for directed fishing and could be processed by any eligible processor. By limiting the Aleutian Islands CV Harvest Set-Aside to a maximum of 5,000 mt, additional harvesting and processing opportunities would be provided to CPs, and CVs delivering to CPs or stationary floating processors, when the Aleutian Islands DFA is greater than 5,000 mt.
Continuing with the example above for calculating the Bering Sea Trawl CV A-Season Sector Limitation, and using amounts from the 2017 annual
The remainder of the Aleutian Islands DFA after deducting the Aleutian Islands CV Harvest Set-Aside would be available to any sector prior to March 15, and could be processed by any eligible processor. For the example described above, this Aleutian Islands Unrestricted Fishery would be 3,965 mt (8,965 mt−5,000 mt = 3,965 mt). This means that until March 15, 5,000 mt could be harvested by vessels for processing by Aleutian Islands shoreplants, and 3,965 mt could be harvested by vessels for processing by any eligible processor.
Stranding is a term sometimes used to describe TAC that remains unharvested due to regulations. The Council recommended performance measures to prevent the stranding of Aleutian Islands non-CDQ Pacific cod TAC. These measures would make the Aleutian Islands CV Harvest Set-Aside available to other sectors if the set-aside was not requested, if limited processing occurred at Aleutian Islands shoreplants, or if the Aleutian Islands CV Harvest Set-Aside was taken before March 15.
The first performance measure would require that either the City Manager of the City of Adak or the City Manager of the City of Atka notify NMFS of its intent to process Aleutian Islands Pacific cod in the upcoming fishing year. If neither city submits such notification to NMFS, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside would not be in effect for the upcoming fishing year. The Council's recommendation for this proposed measure did not specify who from Adak or Atka would be responsible for notifying NMFS of the intent to process Pacific cod. Therefore, NMFS proposes that the City Manager would be the person responsible for submitting the required notification to NMFS because both Adak and Atka have a person in the role of City Manager. NMFS solicits public comment on whether the City Manager is the appropriate person to provide such notification.
The Council recommended allowing the cities of Adak and Atka to voluntarily notify NMFS prior to November 1 if they do not intend to process Aleutian Islands Pacific cod in the upcoming year. NMFS considered this recommendation, but decided it was not necessary to state in regulations. While Adak or Atka could notify NMFS prior to November 1 that it does not intend to process, there would be no penalty if the city reconsidered and decided later, but before November 1, that it would process Aleutian Islands Pacific cod and notified NMFS accordingly.
This proposed rule would require annual notification in the form of a letter or memorandum signed by the City Manager of the city intending to process Aleutian Islands Pacific cod in the upcoming fishing year. This signed letter or memorandum would be the official notification of intent. This proposed rule would require that the official notification of intent be postmarked no later than October 31. NMFS would require that the official notification of intent be submitted to the NMFS Alaska Regional Administrator by certified mail through the United States Postal Service. Certified mail would provide the city with a proof of postmark date and date of receipt by NMFS Alaska Region. Because the official notification of intent must be postmarked by October 31, and NMFS may not receive the official notification of intent in a timely manner owing to weather, flight schedules, and other unpredictable circumstances with mail service in remote Alaskan communities, this proposed rule would also require the City Manager to submit an electronic copy of the official notification of intent and the certified mail receipt with postmark via email to NMFS. Email submission of electronic copies of the official notification of intent and the certified mail receipt with postmark by October 31 would provide NMFS with the timely information it needs to manage the upcoming fisheries. Email notification would be in addition to notification via certified U.S. Mail; email notification would not replace the requirement for notification through the U.S. Postal Service.
A city's notification of intent to process Aleutian Islands Pacific cod would be required to contain the following information: Date, name of city, a statement of intent to process Aleutian Islands Pacific cod, statement of calendar year during which the city intends to process Aleutian Islands Pacific cod, and the signature of and contact information for the City Manager of the city whose shoreplant is intending to process Aleutian Islands Pacific cod.
On or shortly after November 1, the Regional Administrator would send a signed and dated letter either confirming receipt of the city's notification of their intent to process Aleutian Islands Pacific cod, or informing the city that notification was not received by the deadline.
Of the two notification dates considered, November 1 and December 15, the Council preferred November 1 because it would provide more time for offshore processors and non-Aleutian Islands shoreplants to make the necessary arrangements to harvest and process Aleutian Islands Pacific cod if no Aleutian Islands shoreplants would be operating in the upcoming year. A notification date of December 15 would not give vessels and offshore processors sufficient time to prepare for the harvest and processing of the full amount of the Aleutian Islands Pacific cod non-CDQ TAC if no Bering Sea Trawl CV A-Season Sector Limitation or Aleutian Islands CV Harvest Set-Aside applied.
While this proposed rule would make the set-aside available for processing by any shoreplant west of 170° W. longitude in the Aleutian Islands, the Council recognized that only the City of Adak and the City of Atka could be prepared to process Aleutian Islands Pacific cod; therefore, the Council specified that the notification requirement would only be required from either Adak or Atka and not another city that might have an Aleutian Islands shoreplant in the future. The shoreplants in Adak and Atka are likely to have the capacity to process sufficient Pacific cod to meet the other performance measures described below. Although another Aleutian Islands shoreplant may process Pacific cod from the Aleutian Islands CV Harvest Set-Aside, the set-aside would only go into effect if Adak or Atka, or both, submitted a notice of intent to process in the upcoming fishing year. The Council could consider requiring notification from additional Aleutian Island cities with shoreplants in the future, if they develop and the need arises.
The second performance measure would remove the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside for the remainder of the A-season if less than 1,000 mt of Aleutian Islands CV Harvest Set-Aside is delivered to Aleutian Islands shoreplants by February 28. This proposed performance measure is intended to ensure that shoreside processing is actually occurring at a time early
The third performance measure would suspend the Bering Sea Trawl CV A-Season Sector Limitation for the remainder of the year if the entire Aleutian Islands Harvest Set-Aside (5,000 mt using the 2017 example) is fully harvested and processed by Aleutian Islands shoreplants before March 15. This performance measure would recognize that if the entire Aleutian Islands CV Harvest Set-Aside is harvested and delivered, there would be no reason to continue to restrict trawl CV sector harvests in the Bering Sea because the intent for the set-aside and sector limitation would have been met.
NMFS typically publishes the proposed harvest specifications for groundfish of the BSAI in the
If this proposed rule is approved and implemented, during the annual harvest specifications process described above, NMFS would publish in the proposed harvest specifications the amounts for the Aleutian Islands ICA, DFA, CV Harvest Set-Aside, and Unrestricted Fishery, as well as the Bering Sea Trawl CV A-Season Sector Limitation, and the amount available for harvest by trawl CVs in the Bering Sea while the set-aside is in effect. These amounts would be published in a separate table to supplement the table in the harvest specifications that describes the final gear shares and allowances of the BSAI Pacific cod TAC for the upcoming year. NMFS also would publish a notice in the
For 2017, NMFS proposes to amend the 2017 harvest specifications by adding the following table to the harvest specifications. If Amendment 113 and this proposed rule are approved, and if NMFS receives timely notification of intent to process from either Adak or Atka, the harvest limits in Table 4 would be in effect in 2017.
Pursuant to Section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that Amendment 113 to the FMP and this proposed rule are consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An Initial Regulatory Flexibility Analysis (IRFA) was prepared for this action, as required by Section 603 of the
This proposed rule would directly regulate three groups of entities. First, this proposed rule would directly regulate trawl CVs harvesting Pacific cod in the BSAI because this proposed rule could limit how much Pacific cod those trawl CVs could harvest in the Bering Sea, and it could prohibit trawl CVs from participating in the Aleutian Islands Pacific cod fishery if they do not deliver their Pacific cod catch to Aleutian Islands shoreplants. Second, this proposed rule would directly regulate all non-trawl CVs who are harvesting Pacific cod in the Aleutian Islands because it could prohibit those non-trawl CVs from participating in the Aleutian Islands Pacific cod fishery if they do not deliver their Pacific cod catch to Aleutian Islands shoreplants. Third, this proposed rule would directly regulate all CPs harvesting Pacific cod in the Aleutian Islands because this proposed rule could limit how much Pacific cod those CPs can harvest and process in the Aleutian Islands. This proposed rule would not directly regulate the City of Adak or the City of Atka because it does not impose a requirement on those cities, and this proposed rule would not directly regulate entities participating in the harvesting and processing of Pacific cod managed under the GHL fisheries in the Bering Sea or Aleutian Islands.
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
Based on the best available and most recent complete data from 2012 through 2014, between 10 and 16 CPs, and an estimated 43 CVs (trawl and non-trawl) could be directly regulated by this action in the BSAI. Of these, no CP is estimated to be a small entity, while 6 trawl CVs and 26 non-trawl CVs are estimated to be small entities based on the best available data on the gross receipts from these entities and their known affiliates. Therefore, a total of 32 vessels considered to be small entities would be directly regulated by this action. The IRFA assumes that each vessel is a unique entity; therefore, the total number of directly regulated entities may be an overestimate because some vessels are likely affiliated through common ownership. These potential affiliations are not known with the best available data and cannot be predicted.
Under this proposed rule, a portion of the Aleutian Islands non-CDQ Pacific cod TAC would be reserved for CVs harvesting Aleutian Islands Pacific cod and delivering their catch to Aleutian Islands shoreplants for processing during a portion of the year. The trawl CV sector has been the most active in the Aleutian Islands Pacific cod fishery among all of the CV sectors. Therefore, small entities in the trawl CV sector, as well as other CVs in other sectors that are small entities, that deliver Pacific cod to Aleutian Islands shoreplants would be likely to benefit from implementation of this proposed rule. Small entities in the trawl CV sector that harvest Pacific cod exclusively in the Bering Sea could experience some negative effects because the Bering Sea Trawl CV A-Season Sector Limitation established by this proposed rule would restrict the harvest of a portion of the trawl CV sector allocation in the Bering Sea for a portion of the year.
The RFA requires identification of any significant alternatives to the proposed rule that accomplish the stated objectives of the proposed action, consistent with applicable statutes, and that would minimize any significant economic impact of the proposed rule on small entities. The Council considered a status quo alternative and one action alternative with several options and suboptions. The combination of options and suboptions under the action alternative effectively provided a broad range of potential alternative approaches to status quo management. Under the status quo, there would be a continued risk that fishing communities in the Aleutian Islands would not be able to sustainably participate in the Aleutian Islands Pacific cod fishery. The action alternative does not affect any non-CDQ fishery sector's Pacific cod allocation, or the TAC of Aleutian Islands Pacific cod. The action alternative would accomplish the stated objectives of prioritizing a portion of the Aleutian Islands Pacific cod TAC for harvest by CVs that deliver their catch to Aleutian Islands shoreplants for processing, while minimizing adverse economic impacts on small entities and the potential for stranding a portion of the Aleutian Islands Pacific cod TAC.
The Council considered a range of dates, varying amounts of Aleutian Islands Pacific cod for the harvest set-aside and Bering Sea sector limitation, and a suite of mechanisms to relieve the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside under the action alternative. The Council recommended the proposed combination of dates, harvest set-aside amounts, harvest limitations, and provisions to relieve the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside that would give fishery participants sufficient opportunity to harvest and deliver Aleutian Islands Pacific cod to the benefit of Aleutian Islands communities and shoreplants without stranding the trawl CV sector allocation or the Aleutian Islands Pacific cod TAC. The Council recommended and NMFS is proposing selected options in the action alternative such that if specific notification or minimum harvest and processing requirements are not met by a specific date, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside would either not go into effect in the upcoming year, or they would be relieved for the remainder of the year.
The Council considered and rejected two options under the action alternative. One option would have required that if less than 50 percent of the Aleutian Islands CV Harvest Set-Aside had been landed at an Aleutian Islands shoreplant by a given date,
The Council also considered and rejected an option that would have exempted certain processing vessels with a history of processing Aleutian Islands Pacific cod in at least 12 out of 15 recent years from the proposed restrictions on processing and would have allowed them to process up to 2,000 mt of Aleutian Islands Pacific cod while the set-aside was in effect. This option could have allowed up to 10 processing vessels to continue to process Pacific cod during the A-season, limiting the effectiveness of this proposed rule to minimize the risk of a diminished historical share of Aleutian Islands Pacific cod being delivered to Aleutian Islands shoreplants and the communities where those shoreplants are located.
NMFS has not identified any duplication, overlap, or conflict between this proposed action and existing Federal rules.
The recordkeeping, reporting, and other compliance requirements would be increased slightly under this proposed rule. This proposed rule contains new requirements for the cities of Adak and Atka to provide notice to NMFS of its intent to process Aleutian Islands Pacific cod in the upcoming fishing year in order for the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands CV Harvest Set-Aside to apply.
This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval under OMB Control Number 0648-ANIP, a temporary new information collection that will be merged into OMB Control Number 0648-0213 upon approval by OMB. Public reporting burden for Notification of Intent to Process Aleutian Islands Pacific cod is estimated to average 30 minutes per individual response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the
Notwithstanding any other provision of the law, no person is required to respond to, nor shall 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. All currently approved NOAA collections of information may be viewed at:
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:
16 U.S.C. 773
(a) * * *
(7) * * *
(viii)
(
(
(B)
(C)
(D)
(
(
(
(
(
(
(
(
(
(E)
(
(
(
(
(
Agricultural Marketing Service, USDA.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, as amended, (5 U.S.C. App.), the Agricultural Marketing Service (AMS), U.S. Department of Agriculture (USDA), is announcing a meeting of the National Organic Standards Board (NOSB) to assist the USDA in the development of standards for substances to be used in organic production and to advise the Secretary of Agriculture on any other aspects of the implementation of Organic Foods Production Act.
The Board will receive public comments via webinar on November 3, 2016 from 1:00 p.m. to approximately 4:00 p.m. Eastern Time (ET). A face-to-face meeting will be held November 16-18, 2016, from 8:30 a.m. to approximately 6:00 p.m. ET. The deadline to submit written comments and/or sign up for oral comment at either the webinar or face-to-face meeting is 11:59 p.m. ET, October 26, 2016.
The November 3, 2016 webinar is virtual and will be accessed via the internet and/or phone. Access information will be available on the AMS Web site prior to the webinar. The November 16-18, 2016 meeting will take place at the Chase Park Plaza Hotel, 212 N. Kingshighway Blvd., St. Louis, MO 63108. Detailed information pertaining to the webinar and face-to-face meeting, including instructions about providing written and oral comments can be found at
Ms. Michelle Arsenault, Advisory Committee Specialist, National Organic Standards Board, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2642-S, Mail Stop 0268, Washington, DC 20250-0268; Phone: (202) 720-3252; Email:
The NOSB makes recommendations to the Department of Agriculture about whether substances should be allowed or prohibited in organic production and/or handling, assists in the development of standards for organic production, and advises the Secretary on other aspects of the implementation of the Organic Foods Production Act (7 U.S.C. 6501-6522). The public meeting allows the NOSB to discuss and vote on proposed recommendations to the USDA, receive updates from the USDA National Organic Program (NOP) on issues pertaining to organic agriculture, and receive comments from the organic community. The meeting is open to the public. All meeting documents, including the meeting agenda, NOSB proposals and discussion documents, instructions for submitting and viewing public comments, and instructions for requesting time for oral comments will be available on the AMS Web site at
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including
Comments regarding this information collection received by August 31, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA
Notice of meetings.
The National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule Committee (Committee) will meet in Washington, DC. Attendees may also participate via webinar and conference call. The Committee operates in compliance with the Federal Advisory Committee Act (FACA). Committee information can be found by visiting the Committee's Web site at:
The meeting will be held in-person and via webinar/conference call on the following dates and times:
All meetings are subject to cancellation. For updated status of meetings prior to attendance, please contact the person listed under
The meeting will be held at the Forest Service International Programs Office, 1 Thomas Circle, Suite 400, Washington, DC For anyone who would like to attend via webinar and/or conference call, please visit the Web site listed above or contact the person listed in the section titled
Written comments may be submitted as described under
Jennifer Helwig, Committee Coordinator, by phone at 202-205-0892, or by email at
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 this meeting is to provide:
1. Continued deliberations on formulating advice for the Secretary,
2. Discussion of Committee work group findings,
3. Hearing public comments, and
4. Administrative tasks.
This meeting is open to the public. The agenda will include time for people to make oral comments of three minutes or less. Individuals wishing to make an oral comment should submit a request in writing by August 26, 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's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Jennifer Helwig, USDA Forest Service, Ecosystem Management Coordination, 201 14th Street SW., Mail Stop 1104, Washington, DC 20250-1104, or by email at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating the five-year review (“Sunset Review”) of the antidumping and countervailing duty (“AD/CVD”) order(s) listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty order(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address:
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (“APO”) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Historically, changes in fisheries management regulations have been shown to result in impacts to individuals within the fishery. An understanding of social impacts in fisheries—achieved through the collection of data on fishing communities, as well as on individuals who fish—is a requirement under several federal laws. Laws such as the National Environmental Protection Act and the Magnuson Stevens Fishery Conservation Act (as amended 2007) describe such requirements. The collection of this data not only helps to inform legal requirements for the existing management actions, but will inform future management actions requiring equivalent information.
Literature indicates fisheries rationalization programs have an impact on those individuals participating in the affected fishery. The Pacific Fisheries Management Council implemented a rationalization program for the Pacific Coast Groundfish limited entry trawl fishery in January 2011. This research aims to continue to study the individuals in the affected fishery over the long term. Data collection will shift from a timing related to changes in the catch share program design elements to a five-year cycle. In addition, the study will compare results to previous data collection efforts in 2010, 2012, and 2015/2016. The data collected will provide updated and more comprehensive descriptions of the industry as well as allow for analysis of changes the rationalization program may create in the fishery. The measurement of these changes will lead to a greater understanding of the social impacts the management measure may have on the individuals in the fishery. To achieve these goals, it is critical to continue data collection for comparison to previously collected data and establish a time-series which will identify changes over the long term. Analysis can also be correlated with any regulatory adjustments due to the upcoming five-year review of the program. This study will continue data collection efforts to achieve the stated objectives.
This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; 12-month finding and availability of status review document.
We, the National Marine Fisheries Service, have completed a comprehensive status review under the Endangered Species Act (ESA) for porbeagle shark (
This finding was made on August 1, 2016.
The status review document for porbeagle sharks is available electronically at:
Julie Crocker, NMFS Greater Atlantic Regional Fisheries Office, 978-282-8480 or Marta Nammack, NMFS Office of Protected Resources, 301-427-8469.
We, the National Marine Fisheries Service (NMFS), received a petition, dated January 20, 2010, from Wild Earth Guardians (WEG) requesting that we list porbeagle sharks throughout their entire range, or as Northwest Atlantic, Northeast Atlantic, and Mediterranean DPSs under the ESA. WEG also requested that we designate critical habitat for the species. We also received a petition, dated January 21, 2010, from the Humane Society of the United States (HSUS) requesting we list a Northwest Atlantic DPS of porbeagle shark as endangered. In response to these petitions, we published a “negative” 90-finding on July 12, 2010, in which we concluded that the petitions did not present substantial scientific and commercial information indicating that listing under the ESA may be warranted.
In August 2011, the petitioners filed complaints in the U.S. District Court for the District of Columbia challenging our denial of the petitions. On November 14, 2014, the court published a Memorandum Opinion granting the plaintiffs' requests for summary judgment in part, denying our request for summary judgment, and vacating the 2010 90-day finding for porbeagle sharks. The court ordered us to prepare a new 90-day finding. The court entered final judgment on December 12, 2014 (remand). The new 90-day finding, which published on March 27, 2015 (80 FR 16356), was based primarily on information that had become available since 2010, including a new Canadian assessment of the Northwest Atlantic stock and new information in recent proceedings from the International Convention for the Conservation of Atlantic Tunas (ICCAT), regulatory documents, published literature, and
As described in the 90-day finding (80 FR 16356, March 27, 2015), new assessments, management actions, and other information became available subsequent to the 2010 90-day finding. This information indicated that the petitioned actions may be warranted and a review of the status of the species was initiated. The standard for making a positive 90-day finding (
We are responsible for determining whether the porbeagle shark is threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA further defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened). Section 4 of the ESA also requires us to determine whether any species is endangered or threatened as a result of any of the following five factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence 16 U.S.C. 1533(a)(1)(A)-(E)). Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any state or foreign nation or political subdivision thereof to protect the species. In evaluating the efficacy of existing domestic protective efforts, we rely on the Services' joint
The status review report for porbeagle sharks is composed of two components: (1) A scientific literature review and analysis of the five ESA Section 4(a)(1) factors and (2) an assessment of the extinction risk. A biologist in NMFS' Greater Atlantic Region's Sustainable Fisheries Division with expertise in shark ecology was appointed to complete the first component, undertaking a scientific review of the life history and ecology, distribution and abundance, and an analysis of the ESA Section 4(a)(1) factors. An Extinction Risk Analysis (ERA) team was convened to conduct the extinction risk analysis using the information in the scientific review as a basis. The ERA team was comprised of a fishery management specialist from NMFS' Highly Migratory Species Management Division, two research fishery biologists from NMFS' Northeast and Southeast Fisheries Science Centers, and the Sustainable Fisheries Division biologist who did the scientific literature review and analysis of Section 4(a)(1) factors. The ERA team had group expertise in shark biology and ecology, population dynamics, highly migratory species management, and stock assessment science. The ERA team also reviewed the information in the scientific literature review. The status review report for porbeagle sharks (Curtis
The status review report was subjected to independent peer review as required by the Office of Management and Budget Final Information Quality Bulletin for Peer Review (M-05-03; December 16, 2004). The status review report was peer reviewed by four independent specialists selected from government, academic, and scientific communities, with expertise in shark biology, conservation and management, and specific knowledge of porbeagle sharks. The peer reviewers were asked to evaluate the adequacy, quality, and completeness of the data considered and whether uncertainties in these data were identified and characterized in the status review as well as to evaluate the findings made in the “Assessment of Extinction Risk” section of the report. They were also asked to specifically identify any information missing or lacking justification, or whether information was applied incorrectly in reaching conclusions. All peer reviewer comments were addressed prior to finalizing the status review report. Comments received are posted online.
We subsequently reviewed the status review report, cited references, and peer review comments, and concluded that the status review report, upon which this listing determination is based, provides the best available scientific and commercial information on porbeagle sharks. Much of the information discussed below on porbeagle shark biology, genetic diversity, distribution, abundance, threats, and extinction risk is attributable to the status review report. However, we have independently applied the statutory provisions of the ESA, including evaluation of the factors set forth in Section 4(a)(1)(A)-(E); our regulations regarding listing determinations; and, our DPS and Significant Portion of its Range (SPR) policies in making the listing determination.
Porbeagle sharks belong to the family Lamnidae, genus
Porbeagle sharks are found in both the Northern and Southern Hemispheres. They are commonly found in waters over the continental shelf, shelf edges, and in open ocean waters. In the Northern Hemisphere, they are found in the North Atlantic Ocean in pelagic and coastal waters in and adjacent to the Northeast coast of the United States, Newfoundland Banks, Iceland, Barents, Baltic, and North Seas, the coast of Western Europe down to the Northwest African coast, and the Mediterranean Sea. They are absent from waters of the North Pacific. In the Southern Hemisphere, they are distributed in a continuous band around the globe in temperate waters of the Southern Atlantic, Southern Indian, and Southern Pacific Oceans. Like other lamnid sharks, the porbeagle shark is endothermic (warm-blooded). There is no evidence suggesting that the range of the species has contracted.
It prefers cold, temperate waters and does not occur in equatorial waters. Generally, porbeagle sharks prefer waters less than 18 °C (64 °F) but have been documented in waters ranging from 1-26 °C (34-79 °F) (Compagno, 2002; Francis
The porbeagle shark is found from surface and inshore waters (less than 1 m (3 ft)) to deep (>1,000 m (>3,281 ft)) depths, with variations in depth distribution depending on the season and region (Compagno 2001; Pade
The porbeagle shark is a habitat generalist and not substantially dependent on any particular habitat type. Its use of habitat is influenced by temperature and prey distribution, but the shark has broad temperature tolerances and an opportunistic diet (Curtis
The porbeagle shark is an aplacental, viviparous species with oophagy. This means embryos develop inside eggs that are retained in the mother's body until the young are born live. There is no placental connection, and the eggs are consumed in utero during gestation and development (Jensen
In a comparison of life history characteristics of 38 shark species, the population growth rate of porbeagle sharks in the Northwest Atlantic was in the lower-third of the species examined. The reported population growth rate was 1.022 (values less than 1 indicate negative population growth rates) with a mean generation time of approximately 18 years (Cortes, 2002). Juvenile survival rates were among the highest of the shark species analyzed, resulting in high overall natural survival rates (84-90 percent). A recent assessment (Cortes
Stocks are often used to define populations for fisheries management purposes. These stock management units are not equivalent to DPSs unless they also meet the criteria for identifying a DPS. As described in the report for the 2009 porbeagle stock assessment meeting (International Council for the Exploration of the Sea (ICES)/ICCAT, 2009), four stocks have been identified in the Atlantic Ocean. These include two in the Northern Hemisphere—the Northwest and Northeast Atlantic stocks—and two in the Southern Hemisphere—the Southwest and Southeast Atlantic stocks. There may also be an Indo-Pacific stock in the Southern Hemisphere, but the stock boundaries remain unclear. The Northwest Atlantic stock includes porbeagle sharks from the waters on and adjacent to the continental shelf of North America, and the Northeast stock includes porbeagle sharks from the waters in and adjacent to the Barents Sea south to Northwest Africa, including the Mediterranean Sea. In defining stocks, a range of information is considered, including fisheries, biological, distribution, genetic, and tagging information. While these stocks do not necessarily equate to DPSs, they are useful delineations for discussing the population abundance and trends as this is how data for this species are frequently collected and reported.
Tagging and genetic data help define stock structure. Tagging studies may use conventional or electronic tags to collect data on an animal's movements. Conventional tags have a unique number and contact information printed on them. When an animal with a tag is captured, scientists can use the tag number to identify the location and date of release as well as any other information recorded when the animal was tagged. This information, along with information recorded when the animal is recaptured, can be used to identify information such as how long the shark was at large, distance between release and recapture locations, and how much the animal grew during that time. There are several limitations to interpreting conventional tagging data. First, it relies on recapturing the animal and reporting that capture to researchers. In studies of porbeagle sharks, the recapture and reporting rate is approximately 10 percent of tags deployed (Kohler
Tagging data indicate that porbeagle shark movements across the North Atlantic are limited (that is, a limited number of porbeagle sharks move across the Atlantic), but do occur (ICES/ICCAT, 2009). One porbeagle shark tagged in the Northeast Atlantic was recaptured off Newfoundland, Canada; this means that trans-Atlantic movements occur at least occasionally (ICES, 2007). The greatest distance documented between conventional tag release and recapture location is 4,260 km. The time between tagged/released and recapture has been as long as 16.8 years (N. Kohler, NMFS, unpublished data as reported in Curtis
Several recent studies have used PSATs to track porbeagle sharks in the Northwest and Northeast Atlantic and the Southwest Pacific (Pade
Mature female porbeagle sharks appear to make the largest movements in the Northwest Atlantic. Several sharks tagged off Canada swam southward to the subtropical Sargasso Sea and northern Caribbean region, presumably to pup (Campana
Genetic data can also help define population structure. Though the available data from tags indicate little exchange between the Northwest and Northeast Atlantic stocks (likely due to the low overall sample size), genetic analysis shows these stocks mix (Pade
There are several genetic studies that show marked differences between the Northern and Southern Hemispheres, supporting the conclusions that these populations do not mix (Pade
As described above, porbeagle sharks are managed for fisheries purposes by stock unit. Therefore, much of the data on the abundance of populations is by stock. In the North Atlantic, porbeagle sharks have declined from 1960s population levels due to overharvesting. However, the populations are currently stable or increasing and are on a trajectory to recovery (Curtis
While porbeagle sharks in the North Atlantic are overfished, overfishing is not occurring. (SCRS, 2014; Curtis
This means that while the North Atlantic stock sizes are smaller than threshold levels (because of fishing or other causes), the annual catch rate is at a level that is allowing rebuilding. There is also evidence to suggest that the populations in the Southern Hemisphere, while overfished, are stable or increasing (ICES/ICCAT, 2009; Pons and Domingo, 2010; Francis
For 2005, the stock was estimated to be between 188,000 to 195,000 (DFO, 2005) individuals, 12-24 percent of the 1961 estimates (Gibson and Campana, 2005). Campana
Campana
Furthermore, estimated total biomass (the weight of all porbeagle sharks collectively) is also increasing. In 2009,
Maximum likelihoood estimation is a technical, computer-intensive statistical approach that allows a researcher to evaluate the parameters in a model to identify those with the greatest likelihood of having produced the observed (given) data. This statistical analysis produces a maximum likelihood value. By iteratively changing the parameters in the model until this value is found to be highest (maximum), the researcher can identify those parameters most likely to have produced the observed data.
Model runs with different parameters or parameter values will result in different maximum likelihood values. Therefore, this approach can be used to evaluate a series of models as to which model is the preferred model; that is, which model fits the data best. Models with higher maximum likelihood values are more likely than those with lower values to have produced the observed data. Therefore, models with higher maximum likelihood values may be preferred.
Using this approach, Campana
All model variations, except model 2, showed increases in the overall population since 2001. Model 2 suggested that there could have been slightly fewer fish in 2009 than 2001, but, as noted above, based on the maximum likelihood method, the researchers identified this model variation as the “least plausible” variation and indicated that it is not likely an indicator of the true trend in the population (Campana
Similarly, all four model variations show increases in female stock numbers and three of the four show increases in general populations from 2005-2009. Again, model 2 was the exception. This model estimated a slight decrease (approximately two percent or 4,000 fish) in the overall population from 2005 to 2009. As mentioned, this model was determined to be the “least plausible” (Campana
The models used by Campana
In 2009, the ICES/ICCAT stock assessment working group ran a BSP model for the Northwest Atlantic stock, which was considered in addition to the forward projecting age- and sex-based model from Campana
The ICES/ICCAT (2009) working group looked at all available models, data, and fits to the data. They determined that, in recent years, total biomass is increasing and fishing mortality is decreasing. This indicates that the Northwest Atlantic stock is recovering. These results are supported by more recent assessments (Campana
Porbeagle sharks from the Northeast Atlantic stock are also found in the Mediterranean Sea. The Mediterranean Sea is in the southeastern edge of the porbeagle shark's range in the North Atlantic, and the species has always been uncommon in the region (Storai
Semba
There are no abundance trend data for porbeagle sharks in Australian waters. Historically, Japanese longline vessels operating in Australian waters caught porbeagle sharks, but these vessels have been excluded from these waters since 1997 and domestic Australian fishing effort is greatly reduced in areas where porbeagle sharks were caught (Bruce
The level of diversity in genetic samples can also be an indicator of the population size. Mitochondrial DNA from samples in the North and South Atlantic show high diversity, indicative of a large population. Porbeagle sharks are the third most dominant species in the sub-Antarctic region of the South Pacific and are common throughout the Southern Hemisphere (Semba
In summary, stocks in the North Atlantic have stabilized and appear to be increasing. The Southwest Atlantic stock is considered overfished but overfishing is not occurring. Information on the Southeast Atlantic stock is too limited to determine the overfished/overfishing status, but it has been stable and not declining since the 1990s (ICES/ICCAT, 2009; SCRS, 2014). Populations in New Zealand also appear to be increasing (Francis
As described above, the ESA's definition of “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” The term “distinct population segment” is not recognized in the scientific literature and is not clarified in the ESA or its implementing regulations. Therefore, the Services adopted a joint policy for recognizing DPSs under the ESA (DPS Policy; 61 FR 4722) on February 7, 1996. Congress has instructed the Secretaries of Interior and Commerce to exercise this authority with regard to DPSs “* * * sparingly and only when biological evidence indicates such an action is warranted.” The DPS Policy requires the consideration of two elements when evaluating whether a vertebrate population segment qualifies as a DPS under the ESA: (1) The discreteness of the population segment in relation to the remainder of the species or subspecies to which it belongs; and (2)
A population segment of a vertebrate species may be discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon (an organism or group of organisms) as a result of physical, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA (
The petition from Wild Earth Guardians requested that we list porbeagle sharks throughout their entire range, or as Northwest Atlantic, Northeast Atlantic, and Mediterranean Distinct Populations Segments (DPS) under the ESA, and that we designate critical habitat for the species. The petition from the HSUS requested we list a Northwest Atlantic DPS of porbeagle shark as endangered.
In the Status Review, the ERA team considered the available information to assess whether there are any porbeagle population segments that satisfy the DPS criteria of both discreteness and significance. Rather than limit the analysis to only the potential DPSs identified by the petitioners, the ERA team considered whether any DPSs could be determined for porbeagle sharks. Data relevant to the discreteness question included physical, ecological, behavioral, tagging, and genetic data. As described above, porbeagle sharks occur in the North Atlantic and in a continuous band around the Southern Hemisphere. They are absent from equatorial waters. Recent assessments have identified four stocks: The Northwest, Northeast, Southwest, and Southeast Atlantic stocks for fishery management purposes. An additional Indo-Pacific stock may also be present, but Southern Hemisphere stock boundaries are unclear (CITES, 2013).
The population in the North Atlantic is separated from the population in the Southern Hemisphere, as porbeagle sharks are absent from equatorial waters. It is likely that their preference for colder water temperatures limits movement between the Northern and Southern Hemispheres. The genetic data support that they do not move between these hemispheres, as genetic studies show marked differences between the populations in the North Atlantic and the Southern Hemisphere. This indicates that porbeagle sharks in the North Atlantic and porbeagle sharks in the Southern Hemisphere do not interbreed (Padre
There is no information indicating that porbeagle sharks in the Mediterranean Sea, where they are historically rare, are isolated from the Northeast Atlantic stock. There are no direct genetic or tagging data on porbeagle sharks in the Mediterranean Sea, but numerous other highly migratory species (tunas, sharks) are known to move in and out of the Mediterranean Sea. Given that porbeagle sharks are widely distributed and highly migratory, it is reasonable to expect that porbeagle sharks in the Mediterranean Sea would mix with porbeagle sharks in other parts of the Northeast Atlantic. There is no information to indicate that porbeagle sharks in the Mediterranean Sea are a discrete population. As there is no evidence that the Mediterranean Sea population of porbeagle sharks is discrete, it was considered as part of the Northeast Atlantic stock for the remainder of the analysis.
Both tagging and genetic data can provide insight into whether a population is discrete. Conventional and satellite tagging data suggest limited, but occasional movements of porbeagle sharks between the Northwest and Northeast Atlantic, as well as long distance movements into subtropical latitudes of the North Atlantic (Kohler
In the North Atlantic, the porbeagle shark does cross international governmental boundaries. There are regulatory mechanisms in place across the species' range with respect to conserving and recovering porbeagle stocks. Similar regulatory mechanisms have been implemented on both sides of the Atlantic. These mechanisms include regulating directed catch and bycatch
Tagging data in the Southern Hemisphere are very limited. Porbeagle sharks have a continuous distribution throughout the Southern Hemisphere (Semba
In accordance with the DPS policy, the ERA team also reviewed whether these two population segments identified in the discreteness analysis were significant. If a population segment is considered discrete, its biological and ecological significance relative to the species or subspecies must then be considered. We must consider available scientific evidence of the discrete segment's importance to the taxon to which it belongs. Data relevant to the significance question include morphological, ecological, behavioral, and genetic data, as described above. The ERA team found that the loss of either population segment would result in a significant gap in the range of the taxon and, therefore, both were significant. We considered the information presented in the status review and the following factors, identified in the DPS policy, which can inform the significance determination: (a) Persistence of the discrete segment in an ecological setting unusual or unique for the taxon; (b) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (c) evidence that the discrete segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; and (d) evidence that the discrete segment differs markedly from other populations of the species in its genetic characteristics. A discrete population segment needs to satisfy only one of these criteria to be considered significant.
The range of each discrete population (
The ESA (Section 3) defines endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Neither we nor the USFWS have developed any formal policy guidance about how to further define the thresholds for when a species is endangered or threatened. We consider the best available information and apply professional judgment in evaluating the level of risk faced by a species in deciding whether the species is currently in danger of extinction throughout all or in a significant portion of its range (endangered) or likely to become so in the foreseeable future (threatened). We evaluate both demographic risks, such as low abundance and productivity, and threats to the species, including those related to the factors specified by the ESA Section 4(a)(1)(A)-(E).
As described above, we convened an ERA team to evaluate extinction risk to the species. This section discusses the methods used to evaluate demographic factors, threats, and overall extinction risk to the species now and in the foreseeable future. For this assessment, the term “foreseeable future” was defined as two generation times (40 years), consistent with other recent assessments for shark species. A generation time is defined as the time it takes, on average, for a sexually mature female porbeagle shark to be replaced by offspring with the same spawning capacity. As a late-maturing species, with slow growth rate and relatively low productivity, it would likely take more than a generation time for conservative management actions to be realized and reflected in population abundance indices. The ERA team reviewed other comparable assessments (which used generation times of either one or two generations) and discussed the appropriate timeframe for porbeagle sharks. The ERA team determined that, for porbeagle sharks, there was reasonable confidence across this time period (40 years) that the information on threats and management is accurate.
Often the ability to measure or document risk factors is limited, and information is not quantitative or very often lacking altogether. Therefore, in assessing risk, it is important to include both qualitative and quantitative information. In previous NMFS' status reviews, Biological Review Teams have used a risk matrix method, described in detail by Wainwright and Kope (1999), to organize and summarize the professional judgement of a panel of knowledgeable scientists. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews (see
Using these concepts, the ERA team evaluated demographic risks by individually assigning a risk score to each of the four demographic criteria (abundance, growth rate/productivity, spatial structure/connectivity, diversity). The scoring for the demographic risk criteria correspond to the following values: 1—very low, 2—low, 3—medium, 4—high, and 5—very high. A demographic factor was ranked very low if it is very unlikely the factor contributes or will contribute significantly to the risk of extinction. A factor was ranked low if it is unlikely it contributes or will contribute significantly to the risk of extinction. A factor was ranked medium if it is likely it contributes to or will contribute significantly to the risk of extinction. A factor was ranked high if it is highly likely that it contributes or will contribute significantly to the risk of extinction, and a factor was ranked very high if it is very highly (extremely) likely that the factor contributes or will contribute significantly to the risk of extinction.
Each team member scored each demographic factor individually. Each team member identified other demographic factors and/or threats that would work in combination with factors ranked in the higher categories to increase risk to the species. After scores were provided, the team discussed the range of perspectives and the supporting data for these perspectives. Team members were given the opportunity to adjust the scores, if desired, after discussion. The scores were then tallied, reviewed, and considered in the overall risk determination. As noted above, this scoring was carried out for each of the two identified DPSs.
The ERA team also performed a threats assessment for the porbeagle shark by evaluating the impact that a particular threat was currently having on the extinction risk of the species. Threats considered included habitat destruction, modification, or curtailment; overutilization; disease or predation; inadequacy of existing regulatory mechanisms; and other natural or manmade threats, because these are the five factors identified in Section 4(a)(1) of the ESA. The scoring for the threats correspond to the following values: 1—very low, 2—low, 3—medium, 4—high, and 5—very high. A threat was given a rank of very low if it is very unlikely that the particular threat contributes or will contribute to the decline of the species. That is, it is very unlikely that the threat will have population-level impacts that reduce the viability of the species. A threat was ranked as low if it was unlikely the threat contributes or will contribute to the decline of the species. A threat was ranked as medium if it was likely that it contributes or will contribute to the decline of the species and high if it highly likely that it contributes or will contribute to the decline of the species. A threat was given a rank of very high if it was very highly (extremely) likely that the particular threat contributes or will contribute to the decline of the species. Detailed definitions of the risk scores can be found in the status review report. Similar to the demographic parameters, the ERA team was asked to identify other threat(s) and/or demographic factor(s) that may interact to increase the species extinction risk. The ERA team also considered the ranking with respect to the interactions with other factors and threats. For example, team members identified that threats due to the inadequacy of existing regulatory mechanisms may interact with the threat of overutilization and slow population growth rates (a demographic factor) to increase the risk extinction. When potential interactions such as these were identified, the team then evaluated those interactions (in this case interactions between the regulatory mechanisms, overutilization, and growth rates) to determine whether they would significantly change the ranking of the threat (in this case inadequacy of regulatory mechanisms). Team members again discussed their rankings and the supporting data and were given a chance to revise scores based on the discussion. These scores were considered with the demographic scores in the overall risk assessment.
The ERA team members were then asked to use their informed professional judgment to make an overall extinction risk determination for the porbeagle shark. The results of the demographic risks analysis and threats assessment, described below, informed this ranking. For this analysis, the ERA team defined four levels of extinction risk: Not at risk, low risk, moderate risk, and high risk. A species is at high risk of extinction when it is at or near a level of abundance, spatial structure and connectivity, and/or diversity and resilience that place its persistence in question. Demographic risk may be strongly influenced by stochastic (random events or processes that may affect the population) or depensatory (resulting from a depressed breeding population) processes. Similarly, a species may be at high risk of extinction if it faces clear and present threats (
The ERA team adopted the “likelihood point” method for ranking the overall risk of extinction to allow individual team members to express uncertainty. For this approach, each team member distributed 10 `likelihood points' among the extinction risk categories (that is, each team member had 10 points to distribute among the four extinction risk categories). Uncertainty is expressed by assigning points to different risk categories. For example, a team member would assign all 10 points to the `not at risk' category if he/she was certain that the definition for `not at risk' was met. However, he/she might assign a small number of points to the `low risk' category and the majority to the `not at risk' category if there was a low level of uncertainty regarding the risk level. The more points assigned to one particular category, the higher the level of certainty. This approach has been used in previous NMFS status reviews (
The ERA team did not make recommendations as to whether the species should be listed as threatened or endangered. Rather, the ERA team drew scientific conclusions about the overall risk of extinction faced by the North Atlantic and Southern Hemisphere populations of porbeagle shark under present conditions and in the foreseeable future (as noted above, defined as two generation times or 40 years) based on an evaluation of the species' demographic risks and assessment of threats.
Both DPSs have declined significantly from historical levels. In the North Atlantic, these declines appear to have been halted and the DPS' abundance and biomass are increasing (ICES/ICCAT, 2009; Campana
Targeted removal from a population can result in a population structure (
The literature review found no information to indicate that there has been a change in distribution of porbeagle sharks due to climate change or that porbeagle sharks would be unable to adapt to potential changes in prey distribution. Changes in temperature in the range of those predicted under various climate scenarios (Hare
In the United States, commercial fishermen can land porbeagle under a directed or incidental shark permit. In the past, most porbeagle sharks have been landed via pelagic longline, but there have also been some incidental landings in Gulf of Maine fisheries targeting other species. According to logbook data, pelagic longline fishermen have not reported landing any porbeagle sharks in the last few years (2013-2015) and reported landing only between 3 and 23 sharks each year from 2010 through 2012 (NMFS, unpublished data). The majority of porbeagle sharks caught by pelagic longline fishermen from 2010 through 2015 were released alive (on average 78 percent per year). There are strict regulations in the pelagic longline fishery including restrictions on hook size, hook type, and bait type. There are no mesh restrictions in the shark gillnet fishery under the management plan for highly migratory species. However, incidental gillnet landings of porbeagle sharks have occurred in the Gulf of Maine. Gillnet fisheries operating in this area are subject to the requirements of other fishery management plans such as the Northeast multispecies and monkfish plans. These plans restrict the mesh sizes and overall fishing effort in the Gulf of Maine. The commercial porbeagle shark fishery is regulated by a TAC of 11.3 mt dressed weight (dw) (24,912 lb dw) and a commercial quota. The U.S. commercial quota is the portion of the TAC that can be landed by fishermen with a commercial fishing permit and is adjusted annually based on any overharvest from previous years. In recent years, the commercial quota was reduced due to overharvest from previous fishing years. The commercial quota was 1.5 mt (3,307 lb) dw in 2010, 1.6 mt (3,479 lb) dw in 2011, and 0.7 mt (1,585 lb) dw in 2012. In 2013, the fishery was closed due to overharvest in the previous years. It reopened in 2014 with a quota of 1.2 mt (2,820 lb) dw; however, by early December 2014, 198 percent of the quota (2.5 mt dw or 5,586 lb dw) had been reported landed and triggered a commercial fishery closure for the rest of 2014 and all of 2015. This reported overharvest represents approximately 27 individual fish if the catch consisted of large adults (Curtis
Landings in Canada have progressively decreased from a peak of 1,400 mt (3,086,471 lbs) in 1995 to 92 mt (202,825 lbs) in 2007, corresponding with decreasing TAC levels. Canadian landings have been below the TAC since 2007. There were no landings in the directed fishery in 2012, and the directed fishery has been closed since 2013.
At mortality rates less than four percent of the vulnerable biomass, recovery for the Northwest Atlantic stock was estimated to be achievable in 5 to 100 years (Campana
There are restrictions on catch in the EU. In 2010, regulations set the EU TAC at zero in domestic waters and prohibited EU vessels from fishing for, retaining on board, transferring from one ship to another, and landing porbeagle sharks in international waters. Since 2010, the TAC has been at zero (SCRS, 2014). Under the older TAC of 436 mt (961,200 lbs), the Northeast Atlantic stock was projected to remain stable (ICES/ICCAT, 2009). The elimination of directed and bycatch fisheries is expected to allow the population to rebuild.
Data in the Southern Hemisphere are more limited. Since 2000, the CPUE in the Uruguayan fleet has been stable or slightly increasing (Pons and Domingo, 2010); and Uruguay prohibited retention of porbeagle sharks in 2013. Argentinian and Chilean fisheries have also harvested porbeagle sharks as incidental catch. In Argentina, catches ranged from 19-70 mt (41,890-154,300 lbs) from 2003-2006. Live sharks greater than 4.9 ft (1.5 m) are required to be released (CITES, 2013). In Chilean fisheries, landings are mostly unreported but are thought to comprise less than two percent of harvests (Hernandez
Although catch on the high seas, including the Japanese catch of porbeagle sharks outside of the Canadian Exclusive Economic Zone, was once considered a significant factor in total catch from the Northwestern Atlantic stock of porbeagle sharks, the ICES/ICCAT (2009) assessment found that catch levels on the high seas occurred at low levels, indicating that bycatch and directed catch in this area is minor and does not pose a significant risk to the species (ICES/ICCAT, 2009). Information on catch ratios indicated that the relative abundance of porbeagle shark in the catch tended to be greatest on or near the continental shelf and declined markedly in the high seas (ICES/ICCAT, 2009). There were differences in the catch ratios among fisheries from different nations, but the relative proportion of porbeagle sharks in the high seas catch was almost always less than 2 percent (ICES/ICCAT, 2009). Bycatch of porbeagle sharks within some major ICES and Northwest Atlantic Fisheries Organization (NAFO) longline fisheries was reported to be very rare, and bycatch in the North and South Atlantic swordfish pelagic longline fisheries was very low (ICES/ICCAT 2009). Because North Atlantic porbeagle stocks are increasing in abundance, any ongoing discards or additional unreported mortality does not appear to be of a magnitude that is negatively impacting the stocks.
In addition to bycatch in pelagic longline gear, incidental catch in Canada and the United States occurs in trawl, gillnet, and bottom longline fisheries for various groundfish species (Simpson and Miri, 2013; NAFO, unpublished data:
Underreporting of incidental catch is often noted as a concern (ICES/ICCAT, 2009; CITES, 2013; Simpson and Miri, 2013), particularly in high seas fisheries. The level of capture of porbeagle sharks in the high seas longline fisheries is unclear as there is non-reporting and generic reporting of sharks. However, the ICES/ICCAT (2009) assessment estimated the potential porbeagle shark catch based on observed catch ratios of porbeagle sharks to tuna and swordfish. For the Northwest Atlantic, this analysis indicated that unaccounted high seas longline catches were a minor portion of the total reported catch historically and that catches have been even smaller in recent years (ICES/ICCAT, 2009). The data on non-reporting in Southern Hemisphere fisheries are less certain, but there is little evidence that these catches would significantly alter stock assessments (Semba
Recreational catch is minimal (NMFS, 2013). Harvests are extremely low in the United States, Canada, and New Zealand (CITES, 2009; WCPFC, 2014). Regulations in Canada and the United States limit the gear that is allowed to be used for sharks. Most porbeagle sharks caught in recreational fisheries are released with a small percentage being retained. In the United States, porbeagle sharks must be at least 4.5 ft (137 cm) fork length and one shark (porbeagle or other) per vessel per trip can be landed. Recreational gears in the United States are restricted to rod and reel and handline.
Estimates of the catch in the United States vary depending on the data source analyzed. Data on recreational catch are available through the Marine Recreational Fisheries Statistics Survey (MRFSS) and from the large pelagic survey (LPS). MRFSS is a generalized angler survey; LPS is a specialized survey focused on highly migratory species such as pelagic sharks and tunas. This specialization allows for a higher level of sampling needed to obtain more precise estimates. However, because of limited overlap in species distribution and recreational fishery effort, some species such as porbeagle sharks are less commonly encountered by recreational anglers (Curtis
When animals are captured and released, whether in commercial or recreational fisheries, it is important to understand at-vessel and post-release mortality. At-vessel mortality rate is the percentage of animals that are dead when retrieved from the fishing gear; post-release mortality refers to the percentage of animals that die after being released from fishing gear alive. Several researchers have evaluated at-vessel mortality, and mortality rates have varied. In several of the studies, at-vessel mortality in longline gear averaged around 20 percent (Marshall
Applying the 27 percent mean post-release mortality rate to the mean 20 percent mortality rate from the other studies suggests an average total mortality of approximately 47 percent. These studies suggest that there is great deal of variability in mortality rates. Survival rates are dependent on numerous factors, including soak time,
The ERA team also considered whether any of the demographic factors or other threats would interact with this threat to increase its overall threat level. As described above, stocks have been overfished; however, fishing pressure has decreased, and overfishing is no longer occurring. Stocks have stabilized, and some are increasing. Under current management, stocks are projected to continue to recover. Therefore, this threat was ranked as medium. The threat from overutilization would be higher if there were threats due to inadequate regulation coupled with the life history of porbeagle sharks (low productivity). As described below, the inadequacy of existing regulations measures was determined to be a low risk by the ERA team for the North Atlantic DPS and medium for the Southern Hemisphere DPS. Regulatory mechanisms to protect porbeagle sharks are widespread and improving throughout their range. The porbeagle shark's inherently low productivity indicates that recovery from overutilization will take a long time, on the order of decades. After considering these factors, the ERA team concluded that the threat from overutilization would not significantly increase due to interactions with other risk factors. Therefore, the ERA team maintained the ranking of medium.
The only interactions with overutilization identified by the status review team were the inadequacy of regulatory mechanisms and the porbeagle shark's growth rate/productivity. However, we also evaluated potential interactions between overutilization and spatial structure/connectivity and overutilization and diversity. Risks associated with spatial structure/connectivity and diversity are both ranked very low for the North Atlantic and Southern Hemisphere DPSs. Porbeagle sharks are distributed broadly across both the North Atlantic and the Southern Hemisphere. The species is highly mobile, and, as described above, the available data indicate that there is connectivity within each DPS. The genetic studies also indicate that there is high genetic diversity and reproductive connectivity within each DPS. Genetic diversity appears to be sufficiently high and not indicative of isolated or depleted populations. Overutilization does not appear to have reduced the genetic diversity or limited the spatial distribution and connectivity. Given this and that the risk from both these factors is considered very low, interactions between these factors and overutilization would not increase the ranking from medium.
Porbeagle sharks are listed under Annex I of UNCLOS which establishes conservation for highly migratory fish stocks on the high seas and encourages cooperation between nations on their management. Listings under Annex II of the Barcelona Convention, Appendix III of the Bern Convention, and Annex V of the OSPAR Convention are intended to protect porbeagle sharks and their habitats in the Northeast Atlantic and the Mediterranean Sea. The CMS Migratory Shark Memorandum of Understanding and Appendix II of CMS aim to enhance conservation of migratory sharks and require range states to coordinate management efforts for trans-boundary stocks. Inclusion under Appendix II of CITES results in regulation of trade and close monitoring. International trade must be non-detrimental to the survival of the stock. CCAMLR implemented a moratorium on all directed shark fishing in the Antarctic region in 2006 and encourages the live release of incidentally caught sharks. Under these governments, organizations and conventions, porbeagle sharks are currently one of the most widely protected sharks in the world.
Management efforts and regulations that benefit porbeagle sharks have increased in the United States, Canada, and other waters in recent years. In the United States, the shark must be landed with its fins naturally attached (which helps prevent the illegal practice of finning, as species identification is enhanced by the presence of fins which may facilitate identification for enforcement and data collection), a commercial fishing permit is required, and the fishery is regulated by a TAC that is adjusted annually based on any overharvests. Other measures in highly migratory species fisheries in the United States include retention limits, time/area closures, observer requirements, and reporting requirements. These measures are designed to prevent overfishing and allow an increase in biomass. Canada has closed the mating grounds to directed fisheries, and catch is regulated by a TAC limit that has been lowered in recent years. In 2013, Canada suspended the directed porbeagle shark fishery and will not resume it until the stock has sufficiently recovered (Canada/ICCAT 2014, Doc. No. PA4-810). Canada also has a national plan for the conservation and management of sharks and their long-term sustainable use. This plan outlines monitoring and management measures, including observer coverage and dockside monitoring. New Zealand and Australia have harvest quotas, and catches have been greatly reduced. Uruguay has also implemented fishing regulations for porbeagle sharks.
An ICCAT working paper from the 19th Special Meeting of ICCAT (CPC/ICCAT, 2015; Doc. No. COC 314/2014)
Domestic, regional, and international regulation designed to reduce catch and rebuild stocks have been broadly implemented. Directed porbeagle shark fisheries have been mostly eliminated, many fisheries require live release of incidentally caught animals, and trade restrictions have been implemented. This improved management has resulted in declining catches, and overfishing is not occurring. The ERA team ranked this factor as low for the North Atlantic population and as medium for the Southern Hemisphere, where there is less rigorous monitoring, reporting and enforcement of regulations resulting in more uncertainty in their effectiveness.
In both DPSs, this threat could interact with the medium threat of overutilization to increase the risk of extinction and with the demographic factor of slow population growth rates to increase the risk of extinction. The threat of overutilization has been reduced through improved management as has this threat. The shark's inherently low productivity means that recovery from past utilization will take decades, but this would not significantly increase the ranking of this threat as the current regulations have ended overfishing and stocks are rebuilding. The ERA team found that the significant interacting threats are being simultaneously reduced, supporting the low and medium rankings for the North Atlantic and Southern Hemisphere DPSs, respectively.
We also considered whether measures to protect the species (
Overall, this threat was ranked low for both DPSs. Genetic studies indicate that isolation is not a factor affecting this species in the North Atlantic. In the Southern Hemisphere, the population is widespread in a continuous circumglobal band, and there is no evidence that any of the populations in the Southern Hemisphere might be isolated. Given its migratory nature, isolation does not appear to be a factor impacting the porbeagle shark.
Low productivity has the potential to make the species more vulnerable to threats, but is considered in modelling and assessment and in management and conservation actions. Several Ecological Risk Assessments have evaluated the productivity of the porbeagle shark in terms of its vulnerability to certain fisheries. Results from these assessments have varied. Cortes
The results of an ecological risk assessment are used to determine a species' vulnerability to a specific fishery and can be a first step in the assessment process. Although a risk assessment considering a specific vulnerability may rank porbeagle sharks higher than other sharks in some respects, this is not necessarily an indicator of a high risk of extinction. Thus, results of stock assessments, which incorporate additional and more quantitative sources of information than ERAs, should generally outweigh the qualitative outputs from ERAs when available.
Global climate change, including warming and acidification, is unlikely to substantially impact porbeagle populations. The species has an inherently high adaptive capacity. They are highly mobile, have a broad temperature tolerance, and have a generalist diet. They are highly likely to adapt to changing conditions. Chin
In an assessment of 82 Northeast U.S. fishery species, Hare
This threat may interact with the threat of overutilization and the demographic factor of low population growth rates. Since overutilization is being reduced through improved management, which takes into account the porbeagle shark's life history (
Both demographic factors and threats were ranked on a scale from very low to very high by the ERA team members. For the demographic factors, diversity and spatial structure/connectivity were ranked very low for each DPS, abundance was ranked low for each DPS, and growth rate/productivity was ranked medium for each DPS. For the threats, habitat destruction, modification, or curtailment and disease or predation were both ranked very low for each DPS; inadequacy of existing regulation mechanisms was ranked low for the North Atlantic DPS and other natural or manmade threats was ranked low for each DPS; overutilization was ranked medium for each DPS and inadequacy of existing regulation mechanisms was ranked medium for the Southern Hemisphere DPS. No demographic factors or threats were ranked high or very high.
The only demographic factor ranked above low was growth rate/productivity. The porbeagle shark's life history traits make the populations vulnerable to threats and slow to recover from depletion. The only threats ranked above low are overutilization (both DPSs) and inadequacy of existing regulatory mechanisms (Southern Hemisphere DPS). These threats are ranked as medium. Recent management efforts across the globe have reduced fishing mortality. There are a number of countries or organizations that restrict the harvest of porbeagle sharks. Due to these efforts, stocks are no longer declining and most have begun to recover. Given their life history traits, recovery is likely to take decades, but demographic risks are mostly low and significant threats have been reduced. The inadequacy of existing regulatory mechanisms for the Southern Hemisphere DPS was ranked medium due to uncertainties in monitoring, reporting, and enforcement of regulations when compared to the North Atlantic, suggesting the Southern Hemisphere DPS may be more vulnerable to this threat.
As described, the ERA team used a “likelihood analysis” to evaluate the overall risk of extinction. The ERA team did not find either DPS to be at high risk of extinction as no team members assigned points to this category. For the North Atlantic DPS, the current level of extinction risk was 7.5 percent likelihood of moderate risk, 80 percent likelihood of low risk, and 12.5 percent likelihood of not at risk. For the foreseeable future, the ERA team found that the level of moderate risk remained the same, the level of low risk decreased to 62.5 percent and the not-at-risk level increased to 30 percent. For the Southern Hemisphere population, the current levels were 25 percent likelihood of moderate risk, 72.5 percent likelihood of low risk, and 2.5 percent likelihood of not at risk. Similar to the North Atlantic DPS, the level of moderate risk for the Southern Hemisphere DPS remained at 25 percent in the foreseeable future; the low risk decreased to 70 percent, and the not at risk category increased to 5 percent.
While these numbers reflect the percentage of risk assigned to each category, we also evaluated the points assigned to each category by individual team members to better understand the risk. Each individual team member assigned 10 points across the risk categories. As described above, no points were assigned to the high risk category for the North Atlantic DPS for the current or foreseeable future categories of risk. In the North Atlantic DPS, no more than 1 point was assigned by any individual to the moderate risk currently or in the foreseeable future. Each team member assigned eight points to the low risk category and one or two points to the not at risk category for the current risk. For the foreseeable future, team members assigned 4 to 8 points to the `low risk' and 1 to 6 to the `not at risk' categories.
As with the North Atlantic DPS, each team member assigned 10 points across the four categories for the Southern Hemisphere DPS. No team member assigned points to the high risk category for this DPS for either the current or foreseeable future level of risk. For the current level of extinction risk, team members each assigned 2-3 points to the moderate category and 7-8 points to the low category; one team member assigned a single point to the not at risk category. For the level of risk through the foreseeable future, team members assigned 1-4 points to the moderate category and 6-8 points to the low category; two team members each assigned one point to the not at risk category.
The ERA team determined that, overall, both DPSs are at low risk of extinction. While the overall risk is low, there is some likelihood of a moderate risk of extinction, especially in the Southern Hemisphere DPS. The scoring, along with the information in the status review, indicates that the moderate level of risk in the Southern Hemisphere population is due to the uncertainty in current stock status and projections for the Southern Hemisphere, and more uncertainty about the adequacy of current and future regulatory mechanisms, including fishery monitoring, reporting, and enforcement in that region. In addition, generation times are longer in the Southern Hemisphere and the DPS is potentially more vulnerable to depletion. Populations with longer generation times and low productivity cannot rebound as quickly as populations with short generation times and high productivity. Considering the factors and despite the uncertainty, each team member assigned the majority of the points to the low risk category, resulting in 75 percent of the points being assigned to the low/not at risk categories. Based on this, we conclude that, while there is some uncertainty, the Southern Hemisphere DPS is at low risk of extinction currently and in the foreseeable future. We also conclude that the North Atlantic DPS is at low risk of extinction currently and in the foreseeable future.
The ERA team noted that there is a higher likelihood that the North Atlantic DPS is at low risk of extinction than the Southern Hemisphere DPS. Despite these concerns, they still agreed that there was a much greater likelihood of Southern Hemisphere porbeagle sharks having an overall low risk of extinction. For both DPSs, the ERA team determined that overall extinction risk is likely to be lower in the foreseeable future (40 years) than it is currently, due to improved management and recent indications of population recoveries. This decrease in risk in the foreseeable future is reflected in the decrease in the percentages in the low level category and the increases in the not at risk category. This shift, while relatively small in the Southern Hemisphere, indicates that the porbeagle population will face fewer threats and populations will grow, provided effective management continues to be implemented. Recovery is likely to take decades, but the demographic risks are mostly low, and significant threats have been reduced.
We have independently reviewed the best available scientific and commercial information, including the status review report (Curtis
The ERA team concluded that the level of extinction risk to the North Atlantic DPS is low, with 92.5 percent of its likelihood points allocated to the “low risk” or “not at risk” category, both now and in the foreseeable future. Furthermore, the percentage assigned to the “not at risk” category increased for the foreseeable future, while the percentage assigned to the “low risk” category decreased. The ERA team allocated only 7.5 percent of its likelihood points to the “moderate extinction risk” category, both now and in the foreseeable future. Given this low level of risk and an evaluation of the demographic parameters and threats, we have determined that this DPS does not meet the definition of an endangered or threatened species and, as such, listing under the ESA is not warranted at this time.
The ERA team concluded that the Southern Hemisphere DPS was at low risk of extinction, though their distribution of likelihood points indicates that there was some uncertainty about this. However, 75 percent of the likelihood points were allocated to the “low risk” or “not at risk of extinction” category. The ERA Team's uncertainty about the level of risk is due to some uncertainty in the stock status, projections, and fishery monitoring/enforcement. Described in detail elsewhere, the primary threat to porbeagle sharks is overfishing. Strict management measures have been implemented to minimize this threat and, given that abundance and biomass have stabilized, these measures appear to be effective in addressing the threat. In addition, the available information indicates that the current population, while reduced from known historical levels, is sufficient to maintain population viability. We agree with the ERA Team's conclusions, and, therefore, we conclude that this DPS does not warrant listing as threatened or endangered under the ESA at this time.
We also considered the risk of extinction of porbeagle sharks throughout their range. As described above, porbeagle sharks are found in both the Northern and Southern Hemispheres. There is no evidence that this range has contracted or that there has been any loss of habitat. The abundance and biomass have stabilized and in many areas are increasing. As indicated above, overfishing is the primary threat to the species throughout its range. Regulations, both domestic and international, have been put in place across the range and overfishing is not occurring. As the primary threat has been reduced, the population has stabilized, and neither of the DPSs are threatened or endangered, we have concluded that the species as a whole is not threatened or endangered.
Though we find that the porbeagle shark, the North Atlantic DPS of the porbeagle shark, and the Southern Hemisphere DPS of the porbeagle shark (all of which are considered “species” under the ESA) are not in danger of extinction now or in the foreseeable future, under the SPR Policy, we must go on to evaluate whether these species are in danger of extinction, or likely to become so in the foreseeable future, in a “significant portion of its range” (79 FR 37578; July 1, 2014).
When we conduct an SPR analysis, we first identify any portions of the range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant or in which a species may not be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is endangered or threatened throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required (79 FR 37578, July 1, 2014). Making this preliminary determination triggers a need for further review, but does not prejudge whether the portion actually meets these standards such that the species should be listed.
If this preliminary determination identifies a particular portion or portions for potential listing, those portions are then fully evaluated under the “significant portion of its range” authority as to whether the portion is
The SPR policy further explains that, depending on the particular facts of each situation, NMFS may find it is more efficient to address the significance issue first, but in other cases it will make more sense to examine the status of the species in the potentially significant portions first. Whichever question is asked first, an affirmative answer is required to proceed to the second question.
As described elsewhere, the ERA team determined that there are two DPSs of porbeagle shark. Therefore, we will apply the SPR policy to the North Atlantic DPS, the Southern Hemisphere DPS, and the taxonomic species separately. The first step in applying the SPR policy is to identify portions of the range that may be significant and in which the species may be threatened or endangered.
In the North Atlantic DPS, we preliminarily identified two portions for further consideration—the western North Atlantic and the Mediterranean
In order to determine whether the western North Atlantic constitutes a significant portion of the North Atlantic DPS' range, we first examined whether this portion of the range is biologically significant. A portion of the range of a species is “significant” if the portion's contribution to the viability of the species is so important that, without the members of that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. As described above, this portion of the porbeagle range includes known mating and presumed pupping areas. These areas are important to the continued existence of the North Atlantic DPS as they allow for recruitment into the population. Recruitment into the population must occur for it to increase. While similar mating areas likely exist in the Northeast Atlantic, these areas have not yet been described. In addition, the loss of porbeagle sharks in the western North Atlantic would result in a significant gap in the distribution of the North Atlantic DPS as this is a relatively large area relative to the spatial distribution throughout the North Atlantic. We have concluded that the western North Atlantic portion is a significant portion of the North Atlantic DPS under the SPR policy.
Next, we examined whether porbeagle sharks were endangered or threatened in the western North Atlantic portion. As described elsewhere, the primary threat to porbeagle sharks is fishing. In the mating areas, there is no directed fishery for porbeagle sharks. Similarly, there is no directed fishing in the area of Emerald Basin. Porbeagle sharks may be incidentally caught in other fisheries. In the Sargasso Sea (presumed to be a pupping area), tagged sharks undertook multiple ascents and descents between 50 and 850 m (164 and 2,789 ft) in waters between 8 and 23 °C (46 and 73 °F). The mean daily depth in April and May was 480 m (1,575 ft) indicating that most of the pupping period was spent at depth (Campana
The second portion of the North Atlantic DPS' range identified as potentially significant under the SPR Policy is the Mediterranean Sea. Porbeagle shark abundance in the Mediterranean Sea is low, making them more vulnerable to threats in this area. As described elsewhere, the main threat to the species in the North Atlantic is fishing. In the Mediterranean Sea, catch rates are low. However, the available data suggest that porbeagle sharks were historically uncommon in this area. In addition, the Mediterranean Sea represents a small portion of the range of the North Atlantic DPS, which is found in the Mediterranean Sea and the North Atlantic. Given that porbeagle sharks are widely distributed and highly mobile within the North Atlantic, we did not find that the loss of the Mediterranean Sea portion of the range would severely fragment and isolate the population to a point where individuals would be prevented from moving to suitable habitats or would have an increased vulnerability to threats. We also did not find that the loss of this portion would result in a level of abundance for the remaining North Atlantic population that would to be so low or variable that it would cause the DPS to be at an increased risk of extinction due to environmental variation, anthropogenic perturbations, or depensatory processes. With mixing between the Northeast Atlantic and Mediterranean Sea animals, we would also expect that increases in the population in the Northeast Atlantic would have positive impacts on the population in the Mediterranean Sea as individuals may move from the Northeast Atlantic to the Mediterranean Sea. There is no substantial evidence that the loss of the Mediterranean portion of its range would isolate the North Atlantic DPS such that the remaining populations would be at risk of extinction from demographic processes. As described elsewhere, genetic data show that there is mixing between the populations across the North Atlantic. If this portion were lost, we would not expect it to result in a loss of genetic diversity in the DPS as a whole. Overall, we did not find any evidence to suggest that this portion of the range has increased importance over any other with respect to the species' survival. Given that porbeagle abundance is historically low in the Mediterranean Sea, that the Mediterranean Sea represents a small portion of the North Atlantic DPS' range, that mixing occurs between the Mediterranean Sea and the Northeast Atlantic, and that there is no evidence to suggest that the loss of the Mediterranean Sea portion would result in the remainder of the North Atlantic DPS being endangered or threatened, we have determined that this area does not represent a significant part of the North Atlantic DPS' range. Given that the portion is not significant, the question of whether it is endangered or threatened in this area is not addressed.
The other DPS considered under the SPR policy is the Southern Hemisphere DPS. Porbeagle sharks in the Southern Hemisphere are found in a continuous band around the globe, and the genetic data indicate that this population is mixing. For management purposes, ICCAT has identified two stocks in the South Atlantic. There may also be an Indo-Pacific stock. However, stock boundaries in the Southern Hemisphere remain unclear (Curtis
Finally, we also considered whether there is any portion of the range of the taxonomic species that could be considered significant under the SPR Policy and that is threatened or endangered. Two portions of the range of the species could be considered significant: The North Atlantic DPS and the Southern Hemisphere DPS. However, as we described above in our extinction risk analysis, these two DPSs are not in danger of extinction throughout their ranges or likely to become so in the foreseeable future. Therefore, there is no need to consider further whether any of these two DPSs constitute significant portions of the species' range.
Section 4(b)(1) of the ESA requires that listing determinations be based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any state or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information, including the petition, public comments submitted in response to the 90-day finding (80 FR 16356; March 27, 2015), the status review report (Curtis
We conclude that neither the North Atlantic nor Southern Hemisphere DPS of porbeagle shark is presently in danger of extinction, nor is it likely to become so in the foreseeable future throughout all or a significant portion of its range. We summarize the factors supporting this conclusion as follows: (1) The species is broadly distributed over a large geographic range within each hemisphere, with no barrier to dispersal within each DPS; (2) genetic data indicate that, within each DPS, populations are not isolated, have high genetic diversity, and reproductive connectivity; (3) there is no evidence of a range contraction, and there is no evidence of habitat loss or destruction; (4) while the species possesses life history characteristics that increase its vulnerability to overutilization, overfishing is not currently occurring within the range of either the North Atlantic or Southern Hemisphere DPS; (5) the best available information indicates that abundance and biomass has stabilized in the Southern Hemisphere and is increasing in the North Atlantic; (6) while the current population size in both DPSs has declined from historical numbers, the population sizes are sufficient to maintain population viability into the foreseeable future and consist of at least hundreds of thousands of individuals; (7) the main threat to the species is fishery-related mortality from incidental catch; however, there are strict management requirements in place to minimize this threat in many areas of the North Atlantic and Southern Hemisphere, and these measures appear to be effective in addressing this threat; (8) porbeagle shark's high mobility, broad temperature tolerance, and generalist habitat and opportunistic diet limit potential impacts from climate change; (9) directional effects of climate change are expected to be neutral; (10) there is no evidence that disease or predation is contributing to increasing the risk of extinction of either DPS; and (11) there is no evidence that either DPS is currently suffering from depensatory processes (such as reduced likelihood of finding a mate or mate choice or diminished fertilization and recruitment success) or is at risk of extinction due to environmental variation or anthropogenic perturbations.
Based on these findings, we conclude that the North Atlantic and Southern Hemisphere DPSs of the porbeagle shark are not currently in danger of extinction throughout all or a significant portion of their ranges, nor are they likely to become so within the foreseeable future. We have further concluded that the species as a whole is not currently in danger of extinction throughout all or a significant portion of its range nor is it likely to become so in the foreseeable future. Accordingly, the porbeagle shark does not meet the definition of a threatened or endangered species and, thus, does not warrant listing as threatened or endangered at this time.
Porbeagle sharks from Newfoundland, Canada to Massachusetts, and seasonally to New Jersey, were identified as a NMFS “species of concern” in 2006. A species of concern is one for which we have concerns regarding status and threats but for which insufficient information is available to indicate a need to list the species under the ESA. In identifying species of concern, we consider demographic and genetic diversity concerns; abundance and productivity; distribution; life history characteristics and threats to the species. Given the information presented in the status review and the findings of this listing determination, we are removing the designation of species of concern for porbeagle sharks in the North Atlantic DPS. This is a final action, and, therefore, we do not solicit comments on it.
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
A complete list of all references cited herein is available upon request (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice and request for applications.
ONMS is seeking applications for vacant seats for eight of its 13 national marine sanctuary advisory councils and Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council (advisory councils). Vacant seats, including positions (
Applications are due before or by Wednesday, August 31, 2016.
Application kits are specific to each advisory council. As such, application kits must be obtained from and returned to the council-specific addresses noted below.
• Channel Islands National Marine Sanctuary Advisory Council: Jessica Morten, NOAA Channel Islands National Marine Sanctuary, University of California, Santa Barbara, Ocean Science Education Building 514, MC 6155, Santa Barbara, CA 93106; 805-893-6433; email
• Cordell Bank National Marine Sanctuary Advisory Council: Lilli Ferguson, Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950; 415-464-5265; email
• Florida Keys National Marine Sanctuary Advisory Council: Beth Dieveney, Florida Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL 33040; 305-809-4710; email
• Greater Farallones National Marine Sanctuary Advisory Council: Carolyn Gibson, Greater Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129; 415-970-5252; email
• Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council: Shannon Ruseborn, NOAA Inouye Regional Center, NOS/ONMS/HIHWNMS/Shannon Ruseborn, 1845 Wasp Boulevard, Building 176, Honolulu, HI 96818; 808-725-5905; email
•
• National Marine Sanctuary of American Samoa Advisory Council: Joseph Paulin, National Marine Sanctuary of American Samoa, Tauese P.F. Sunia Ocean Center, P.O. Box 4318, Pago Pago, American Samoa 96799; 684-633-6500 extension 226; email
• Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council: Allison Ikeda, NOAA Inouye Regional Center, NOS/ONMS/PMNM/Allison Ikeda, 1845 Wasp Boulevard, Building 176, Honolulu, HI 96818; 808-725-5818; email
• Stellwagen Bank National Marine Sanctuary Advisory Council: Elizabeth Stokes, Stellwagen Bank National Marine Sanctuary, 175 Edward Foster Road, Scituate, MA 02066; 781-545-8026 extension 201; email
For further information on a particular national marine sanctuary advisory council, please contact the individual identified in the
ONMS serves as the trustee for a network of underwater parks encompassing more than 170,000 square miles of marine and Great Lakes waters from Washington state to the Florida Keys, and from Lake Huron to American Samoa. The network includes a system of 13 national marine sanctuaries and Papaha
The following is a list of the vacant seats, including positions (
Monitor
16 U.S.C. 1431
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Evaluation of Financial Empowerment Training Program.”
Written comments are encouraged and must be received on or before August 31, 2016 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
Documentation prepared in support of this information collection request is available at
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau or CFPB) is requesting a new information collection titled, “Consumer Response Company Response Survey.”
Written comments are encouraged and must be received on or before September 30, 2016 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
Documentation prepared in support of this information collection request is available at
This information collection reflects comments received in response to the Notice and Request for Information (RFI) the Bureau issued on March 24, 2015 (80 FR 15583), seeking input from the public on the potential collection and sharing of information about consumers' positive interactions with financial service providers including providing more information about a company's complaint handling such as highlighting the quality of responses to consumers by replacing the consumer “dispute” function with a two-part consumer feedback process. The consumer will have the ability to rate the company's response to and handling of his or her complaint on a one to five scale and provide a narrative description in support of the rating. Positive feedback about the company's handling of the consumer's complaint would be reflected by both high satisfaction scores and by the narrative in support of the score. Negative feedback about the company's handling of the consumer's complaint would be better supported and more useful to companies than the current “dispute” function. The Company Response Survey will replace the “dispute” option and allow consumers to offer both positive and negative feedback on their complaint experience.
Department of Defense.
Amendment of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is amending the charter for the Defense Innovation Advisory Board.
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
This committee's charter is being amended in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The amended charter and contact information for the Designated Federal Officer (DFO) can be obtained at
The DoD is amending the charter for the Defense Innovation Advisory Board previously announced on page 18842 of the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2016.
This priority is:
The project requirements for this competition are from the NFP for this competition, published elsewhere in this issue of the
The following definitions are from the Workforce Innovation and Opportunity Act (WIOA), the Rehabilitation Act, 34 CFR part 77, and the NFP. The source of each definition is noted following the text of the definition.
(a) Aligns with the skill needs of industries in the economy of the State or regional economy involved;
(b) Prepares an individual to be successful in any of a full range of
(c) Includes counseling to support an individual in achieving the individual's education and career goals;
(d) Includes, as appropriate, education offered concurrently with and in the same context as workforce preparation activities and training for a specific occupation or occupational cluster;
(e) Organizes education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable;
(f) Enables an individual to attain a secondary school diploma or its recognized equivalent and at least one recognized postsecondary credential; and
(g) Helps an individual enter or advance within a specific occupation or occupational cluster.
(a) For which an individual—
(1) Is compensated at a rate that—
(i)(A) Is not less than the higher of the rate specified in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the rate specified in the applicable State or local minimum wage law; and
(B) Is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or
(ii) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills; and
(2) Is eligible for the level of benefits provided to other employees;
(b) That is at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons; and
(c) That, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions.
(A) Job exploration by the individual;
(B) Working with an employer to facilitate placement including—
(i) Customizing a job description based on current employer needs or on previously unidentified and unmet employer needs;
(ii) Developing a set of job duties, a work schedule and job arrangement, and specifics of supervision (including performance evaluation and review), and determining a job location;
(iii) Representation by a professional chosen by the individual, or self-representation of the individual, in working with an employer to facilitate placement; and
(iv) Providing services and supports at the job location.
(i) There is at least one study that is a—
(A) Correlational study with statistical controls for selection bias;
(B) Quasi-experimental design study that meets the What Works Clearinghouse Evidence Standards with reservations; or
(C) Randomized controlled trial that meets the What Works Clearinghouse Evidence Standards with or without reservations.
(ii) The study referenced in paragraph (i) of this definition found a statistically significant or substantively important (defined as a difference of 0.25 standard deviations or larger) favorable association between at least one critical component and one relevant outcome presented in the logic model for the proposed process, product, strategy, or practice.
(a) Has a physical or mental impairment that for such individual constitutes or results in a substantial impediment to employment; and
(b) Can benefit in terms of an employment outcome from vocational rehabilitation services provided pursuant to Title I, III, or VI of the Rehabilitation Act.
(A)(1) Is not younger than the earliest age for the provision of transition services under section 614(d)(1)(A)(i)(VIII) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)(1)(A)(i)(VIII)); or
(2) If the State involved elects to use a lower minimum age for receipt of pre-employment transition services under the Rehabilitation Act, is not younger than that minimum age; and
(B)(1) Is not older than 21 years of age; or
(2) If the State law for the State provides for a higher maximum age for receipt of services under the Individuals with Disabilities Education Act (20 U.S.C. 1400
(C)(1) Is eligible for, and receiving, special education or related services under Part B of the Individuals with Disabilities Education Act (20 U.S.C. 1411
(2) Is an individual with a disability, for purposes of section 504 of the Rehabilitation Act.
(A)(i) For whom competitive integrated employment has not historically occurred; or
(ii) For whom competitive integrated employment has been interrupted or intermittent as a result of a significant disability; and
(B) Who, because of the nature and severity of their disability, need intensive supported employment services and extended services after the transition described in section (7)(13)(C) of the Rehabilitation Act, in order to perform the work involved.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2017 from the list of unfunded applications from this competition.
1.
2.
1.
To obtain a copy from ED Pubs, write, fax, or call: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827. FAX: (703) 605-6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1-877-576-7734.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.421B.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. Because of the limited time available to review applications and make a recommendation for funding, we strongly encourage applicants to limit the application narrative to no more than 75 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
In addition to the page-limit guidance on the application narrative section, we recommend that you adhere to the following page limits, using the standards listed above: (1) The abstract should be no more than one page, (2) the resumes of key personnel should be no more than two pages per person, and (3) the bibliography should be no more than three pages. The only optional materials that will be accepted are letters of support. Please note that our reviewers are not required to read optional materials.
Please note that any funded applicant's application abstract will be made available to the public.
3.
Applications for grants under this competition must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via
7.
a.
Applications for grants under the Transition Work-Based Learning Model Demonstrations, CFDA number 84.421B, must be submitted electronically using the Governmentwide
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Rehabilitation Services Administration—Disability Innovation Fund—Transition Work-Based Learning Model Demonstrations at
Please note the following:
• When you enter the
• Applications received by
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from
Once your application is successfully validated by
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: RoseAnn Ashby, U.S. Department of Education, Rehabilitation Services Administration, 400 Maryland Avenue SW., Room 5057, Potomac Center Plaza (PCP), Washington, DC 20202-2800. FAX: (202) 245-7593.
Your paper application must be submitted in accordance with the mail or hand-delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.421B), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
We will not consider applications postmarked after the application deadline date.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.421B), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
4.
The goal of the Transition Work-Based Learning Model Demonstration is to identify and demonstrate practices, which are supported by evidence, in providing work-based learning experiences in integrated settings under the VR program, in collaboration with State and local educational agencies, and other key partners within the local community, to improve post-school outcomes for students with disabilities. Such practices must be supported by strong theory and rigorously evaluated. Under the absolute priority, grant recipients are required to develop and implement a plan to measure the model demonstration project's performance and outcomes, including an evaluation of the practices and strategies implemented by the project. The cooperative agreement will specify the measures that will be used to assess the grantees' performance in achieving the goals and objectives of the competition, including the extent to which:
• Project participants successfully complete at least two work-based learning experiences, including one paid work experience;
• Participation in the project demonstrates that work-based learning experiences have contributed to student academic and career planning;
• Project participants enroll in postsecondary education or training; and
• Project participants obtain competitive integrated employment, including supported employment.
In its annual and final performance report to the Department, grant recipients will be expected to report the data specified in the absolute priority described in this notice and any additional data outlined in the cooperative agreement that is needed to assess its project's performance. The cooperative agreement and annual report will be reviewed by RSA and the grant recipient between the third and fourth quarter of each project period. Adjustments will be made to the project accordingly in order to ensure demonstrated progress towards meeting the goal and outcomes of the project.
5.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
RoseAnn Ashby, U.S. Department of Education, Rehabilitation Services Administration, 400 Maryland Avenue SW., Room 5057, PCP, Washington, DC 20202-5076. Telephone: (202) 245-7258, or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Innovation and Improvement, Department of Education.
Notice; correction.
On July 8, 2016, we published in the
Deadline for Notice of Intent to Apply: August 11, 2016. Deadline for Intergovernmental Review: November 7, 2016.
Adrienne Hawkins, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W256, Washington, DC 20202-5970. Telephone: (202) 453-5638, or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
This document corrects: (1) The deadline for intergovernmental review; and (2) the deadline for the notice of intent to apply. All other requirements and conditions stated in the Promise Neighborhoods NIA remain the same.
In FR Doc. No. 2016-16130, in the
(a) On page 44742, in the left-hand column, revise lines 17-18 to read as follows:
(b) On page 44753, in the left-hand column, revise lines 35-36 to read as follows:
(c) On page 44753, in the middle column, revise lines 55-56 to read as follows:
(d) On page 44753, in the right-hand column, revise lines 38-39 to read as follows:
You may also access documents of the Department published in the
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of filing.
On July 18, 2016, Oregon Clean Energy, LLC, as owner and operator of a new combined cycle natural gas fired electric generating powerplant, submitted a coal capability self-certification to the Department of Energy (DOE) pursuant to § 201(d) of the Powerplant and Industrial Fuel Use Act of 1978 (FUA), as amended, and DOE regulations in 10 CFR 501.60, 61. 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 combined cycle natural gas fired 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:
U.S. Energy Information Administration (EIA), Department of Energy.
Notice and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, EIA invites the general public to comment on the following proposed Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et. seq.). This notice announces EIA's intent to submit this proposed collection to the Office of Management and Budget (OMB) for approval.
Consideration will be given to all comments received by September 30, 2016. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to Jacob Bournazian, Energy Information Administration, 1000 Independence Avenue SW., Washington, DC 20585 or by fax at 202-586-0552 or by email at
Comments submitted in response to this notice may be made available to the public through relevant Web sites. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment; your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. Please note that responses to
Requests for additional information or copies of the information collection supporting statement should be directed to Jacob Bournazian, Energy Information Administration, 1000 Independence Avenue SW., Washington, DC 20585, phone: 202-586-5562, email:
By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations. This feedback also provides an early warning of issues with service, or focuses attention on areas where communication, training or changes in operations might improve the accuracy of data reported on survey instruments or the delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between the agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
The solicitation of feedback will target areas such as: Timeliness, understanding of questions and terminology used in survey instruments, perceptions on data confidentiality and security, appropriateness and relevancy of information, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the agency's services will be unavailable.
The agency will only submit a collection for approval under this generic clearance if it meets the following conditions:
The collections are voluntary;
The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
The collections are non-controversial and do not raise issues of concern to other Federal agencies;
Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
Personally identifiable information (PII) is collected only to the extent necessary for initially contacting respondents and is not retained;
Information gathered is intended to be used only internally for general service improvement, the design, modification, and evaluation of survey instruments, modes of data collection, and program management purposes. It is not intended for release outside of the agency (if released, the agency must indicate the qualitative nature of the information);
Information gathered will not be used for the purpose of substantially informing influential policy decisions; and the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study. The information gathered will only generate qualitative type of information.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Executive Order (E.O.) 13571, Streamlining Service Delivery and Improving Customer Service.
Environmental Protection Agency (EPA).
Notice.
Pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C. 552a), the Office of International and Tribal Affairs is giving notice that it proposes to create a new system of records for the Passport Expiration Notification System (PENS). This system of records contains personally identifiable information (Pll) collected from no-fee passports for the purpose of tracking the status of government passports. The information maintained in the system will be the passport holder's name, place of birth, passport number and passport issue and expiration dates.
Persons wishing to comment on this system of records notice must do so by [40 days after publication in the
Submit your comments, identified by Docket ID no. EPA-HQ-OEl-2015-0200, by one of the following methods:
EPA's policy is that all comments received will be included in the public docket without change and may be made available online at
Pamela Younger, Office of Management and International Services, Office of International and Tribal Affairs, 1300 Pennsylvania Ave. NW., 20004, telephone number: 202-564-6631; fax number: 202-565-2427; email address:
The U.S. Environmental Protection Agency (EPA) plans to create a Privacy Act system of records for the Passport Expiration Notification System (PENS). The information collected in this system will be used for the purpose of requesting and obtaining country clearances for EPA staff traveling to foreign countries to conduct official government business. The information maintained in the system will be the passport holder's name, place of birth, passport number and passport issue and expiration dates.
The information is accessed through an electronic means which has its own authentication process established by OEI. Only certified Passport Agents in the OITA Travel Office, and in Region 5 and the OITA Database Administrator will have access to the information contained in the database. No-fee Passports containing personal information are kept in a locked filing cabinet. Physical access to the filing cabinet is limited to authorized personnel employees with office keys.
Passport Expiration Notification System (PENS)
US EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
EPA International Travelers who apply for a no-fee passport for the purpose of conducting official government business in foreign countries.
The passport holder's name, place of birth, passport number and issue and expiration dates.
E.O. 11295 22 U.S.C. 211(a); 22 CFR 51.22(b).
The primary purpose of this system is to track the status of no-fee passports, including the issuance date, expiration date, and current location and to request and obtain country clearances for EPA staff traveling to foreign countries to conduct official government business.
A., C., E., J. and L apply to the system.
Electronic records are maintained in an electronic format. Passports are maintained in their physical format in a locked filing cabinet, in a locked room.
Records are retrieved by all or a part of the person's name, place of birth, and/or passport number.
Computer-stored information is protected in accordance with the Agency's security requirements. Access to the information in the system is limited to authorized Agency personnel who administer the program. No external access to the system is allowed. Paper files are kept in a locked filing cabinet in a locked room. Only accessed by three employees.
EPA Records Schedule 1010 NARA Disposal Authority: DAA-0412-2012 -0007-0003. Closed and returned to the Department of State when employee separates, retires, transfers to a new agency, or job duties no longer require international travel.
PENS Database Manager, Office of Management and International Services, Office of International and Tribal Affairs, (MD-2680R) 1200 Pennsylvania Ave. NW., Washington, DC 20460.
Any individual who wants to know whether this system of records contains a record about him or her, who wants access to his or her record, or who wants to contest the contents of a record, should make a written request to the EPA FOIA Office, Attn: Privacy Act Officer, MC 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
Request for access must be made in accordance with the procedures described in EPA's Privacy Act regulations at 40 CFR part 16. Requesters will be required to provide adequate identification, such as a driver's license, employee identification or other identifying document.
Requests for correction or amendment must identify the record to be changed and the corrective action sought. Complete EPA Privacy Act procedures are described in EPA's Privacy Act regulations at 40 CFR part 16.
Individual Passport applicants U.S. Department of State.
None.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information llected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before September 30, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
The Commission will submit this information collection to OMB during this comment period to obtain the full three-year clearance from them. The purpose of this information is to ensure that schools and libraries that are eligible to receive discounted Internet Access services (Category One), and Broadband Internal Connections, Managed Internal Broadband Services, and Basic Maintenance of Broadband Internal Connections (Basic Maintenance) (known together as Category Two Services) have in place Internet safety policies. Schools and libraries receiving these services must certify, by completing a FCC Form 486 (Receipt of Service Confirmation and Certification of Compliance with the Children's Internet Protection Act), that respondents are enforcing a policy of Internet safety and enforcing the operation of a technology prevention measure. Also, respondents who received a Funding Commitment Decision Letter indicating services eligible for universal service funding must file FCC Form 486 to indicate their service start date and to start the payment process. In addition, all members of a consortium must submit signed certifications to the Billed Entity of their consortium using a FCC Form 479; Certification by Administrative Authority to Billed Entity of Compliance with Children's Internet Protection Act, in language consistent with the certifications adopted for the FCC Form 486. Consortia must, in turn, certify collection of the FCC Forms 479 on the FCC Form 486. FCC Form 500 is used by E-rate participants to make adjustments to previously filed forms, such as changing the contract expiration date filed with the FCC Form 471, changing the funding year service start date filed with the FCC Form 486, cancelling or reducing the amount of funding commitments, requesting extensions of the deadline for non-recurring services, and notifying USAC of equipment transfers. All of the requirements contained herein are necessary to implement the congressional mandate for universal service.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before August 31, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
The Commission established uniform technical standards for various radio-frequency equipment operating under the guidelines established in the FCC rules, which include smartphones, personal computers, garage door openers, baby monitors, etc. In order to ensure that technical standards are applied uniformly, the Commission requires testing facilities and manufacturers to follow the standardized measurement procedures and practices:
(a) 47 CFR part 2 of the Commission's rules requires each Electro-Magnetic Compatibility (EMC) testing facility that performs equipment testing in support of any request for equipment authorization to be accredited by Commission-approved accrediting bodies.
(b) A testing laboratory that is accredited by a Commission-approved accrediting body is required to file a test site description with the accreditation body for review as part of the accreditation assessment. This information will document that the EMC testing facility complies with the testing standards used to make the measurements that support any request for equipment authorization.
(c) The EMC testing facility must provide updated documentation to the accreditation bodies if there are changes in the measurement facility or certify at least every two years that the facility's equipment and test set-up have not changed.
(d) The accreditation body will provide the Commission with specific summary information about each testing laboratory that it has accredited. The Commission will maintain a list of accredited laboratories that it has recognized.
The Commission or a Telecommunications certification body uses the information from the test sites and the supporting documentation, which accompany all requests for equipment authorization:
(a) To ensure that the data are valid and that proper testing procedures are used;
(b) To ensure that potential interference to radio communications is controlled; and
(c) To investigate complaints of harmful interference or to verify the manufacturer's compliance with Section 47 CFR 2.948 of the Commission's rules.
47 CFR Section 2.949 of the Commission's rules sets forth the requirements for accreditation bodies seeking recognition from the FCC as a laboratory accreditation body. Accreditation bodies seeking such recognition from the Commission must file a report of their qualifications with the Office of Engineering and Technology (OET). They are only required to file this information once.
In addition, the referenced 47 CFR part 15 rules (47 CFR 15.117(g)(2)) require that certain equipment manufacturers file information concerning the testing of TV receivers, which tune to UHF channels, to show that the UHF channels provide approximately the same degree of tuning accuracy with approximately the same expenditure of time and effort.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before September 30, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
In 1995, via a Report and Order in PR Docket No. 93-61; FCC 95-41, published at 60 FR 15248, the Commission established construction deadlines for Location and Monitoring Service (LMS) licensees in the market-licensed multilateration LMS services. On July 8, 2004, the Commission adopted a Report and Order under WT Docket Nos. 02-381, 01-14, and 03-202; FCC 04-166, published at 69 FR 75144, that amended § 90.155 to provide holders of multilateration location service authorizations with five- and ten-year benchmarks to place in operation their base stations that utilize multilateration technology to provide multilateration location service to one-third of the Economic Area's (EA's) population within five years of initial license grant, and two-thirds of the population within ten years. At the five- and ten-year benchmarks, licensees are required to file a map and FCC Form 601 showing compliance with the coverage requirements pursuant to § 1.946 of the Commission's rules.
On January 31, 2007, via an Order on Reconsideration, and Memorandum Opinion and Order, under DA 07-479, the FCC granted two to three additional years to meet the five-year construction requirement for certain multilateration Location and Monitoring Service Economic Area licenses, and extended the 10-year requirement for such licenses two years.
These requirements will be used by Commission personnel to evaluate whether or not certain licensees are providing substantial service as a means of complying with their construction requirements, or have demonstrated that an extended period of time for construction is warranted.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before August 31, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page <
The Commission adopted a voluntary path for rate-of-return carriers to receive model-based universal service support in exchange for making a commitment to deploy broadband-capable networks meeting certain service obligation to a pre-determined number of eligible locations by state. The Commission addressed the requirement that carriers electing model-based support must notify the Commission of that election and their commitment to satisfy the specific service obligations associated with the amount of model support. In addition, the Commission adopted reforms to the universal service mechanisms used to determine support for rate-of-return carriers not electing model-based support. Among other such reforms, the Commission adopted an operating expense limitation to improve carriers' incentives to be prudent and efficient in their expenditures, a capital investment allowance to better target support to those areas with less broadband deployment, and broadband deployment obligations to promote “accountability from companies receiving support to ensure that public investment are used wisely to deliver intended results.” This information collection addresses the new burdens associated with those reforms.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before September 30, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
The Commission's Wireline Bureau staff will develop a standardized template for the submission of data and
The Commission's Wireline Bureau staff will develop a standardized template for the submission of data and provide instructions to simplify compliance with and reduce the burdens of the data collection. The template will also include filing instructions and text fields for respondents to use to explain portions of their filings, as needed.
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10447—The Farmers Bank of Lynchburg, Lynchburg, Tennessee (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of The Farmers Bank of Lynchburg (Receivership Estate); the Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary; including but not limited to releases, discharges, satisfactions, endorsements, assignments and deeds.
Effective August 1, 2016 the Receivership Estate has been terminated, the Receiver discharged, and the Receivership Estate has ceased to exist as a legal entity.
NOTICE IS HEREBY GIVEN that the Federal Deposit Insurance Corporation (“FDIC”) as Receiver for Southern Colorado National Bank, Pueblo, Colorado (“the Receiver”) intends to terminate its receivership for said institution. The FDIC was appointed receiver of Southern Colorado National Bank on October 2, 2009. The liquidation of the receivership assets has been completed. To the extent permitted by available funds and in accordance with law, the Receiver will be making a final dividend payment to proven creditors.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.6, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 26, 2016.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) One Memorial Drive, Kansas City, Missouri 64198-0001:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 17, 2016.
A. Federal Reserve Bank of Philadelphia (William Spaniel, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521. Comments can also be sent electronically to
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 26, 2016.
A. Federal Reserve Bank of Philadelphia (William Spaniel, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521. Comments can also be sent electronically to
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 16, 2016.
A. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
B. Federal Reserve Bank of St. Louis (David L. Hubbard, Senior Manager) P.O. Box 442, St. Louis, Missouri 63166-2034. Comments can also be sent electronically to
1.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice updates the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilities (IPFs) (which include freestanding IPFs and psychiatric units of an acute care hospital or critical access hospital). These changes are applicable to IPF discharges occurring during the fiscal year (FY) beginning October 1, 2016 through September 30, 2017 (FY 2017).
Katherine Lucas (410) 786-7723 or Jana Lindquist (410) 786-9374 for general information.
Theresa Bean (410) 786-2287 or James Hardesty (410) 786-2629 for information regarding the regulatory impact analysis.
In the past, tables setting forth the Wage Index for Urban Areas Based on Core-Based Statistical Area (CBSA) Labor Market Areas and the Wage Index Based on CBSA Labor Market Areas for Rural Areas were published in the
To assist readers in referencing sections contained in this document, we are providing the following table of contents.
Because of the many terms to which we refer by acronym in this notice, we are listing the acronyms used and their corresponding meanings in alphabetical order below:
This notice updates the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilities (IPFs) for discharges occurring during the fiscal year (FY) beginning October 1, 2016 through September 30, 2017.
In this notice, we are updating the IPF Prospective Payment System (PPS), as specified in 42 CFR 412.428. The updates include the following:
• Effective for the FY 2016 IPF PPS update, we adopted a 2012-based IPF market basket. For FY 2017, we adjusted the 2012-based IPF market basket update (2.8 percent) by a reduction for economy-wide productivity (0.3 percentage point) as required by section 1886(s)(2)(A)(i) of the Social Security Act (the Act). We further reduced the 2012-based IPF market basket update by 0.2 percentage point as required by section 1886(s)(2)(A)(ii) of the Act, resulting in an estimated IPF payment rate update of 2.3 percent for FY 2017.
• The 2012-based IPF market basket resulted in a labor-related share of 75.1 percent for FY 2017.
• We updated the IPF PPS per diem rate from $743.73 to $761.37. Providers that failed to report quality data for FY 2017 payment will receive a FY 2017 per diem rate of $746.48.
• We updated the electroconvulsive therapy (ECT) payment per treatment from $320.19 to $327.78. Providers that failed to report quality data for FY 2017 payment will receive a FY 2017 ECT payment per treatment of $321.38.
• We used the updated labor-related share of 75.1 percent (based on the 2012-based IPF market basket) and CBSA rural and urban wage indices for FY 2017, and established a wage index budget-neutrality adjustment of 1.0007.
• We updated the fixed dollar loss threshold amount from $9,580 to $10,120 in order to maintain estimated outlier payments at 2 percent of total estimated aggregate IPF PPS payments.
Section 124 of the Medicare, Medicaid, and SCHIP (State Children's Health Insurance Program) Balanced Budget Refinement Act of 1999 (BBRA) (Pub. L. 106-113) required the establishment and implementation of an IPF PPS. Specifically, section 124 of the BBRA mandated that the Secretary of the Department of Health and Human Services (the Secretary) develop a per diem PPS for inpatient hospital services furnished in psychiatric hospitals and psychiatric units including an adequate patient classification system that reflects the differences in patient resource use and costs among psychiatric hospitals and psychiatric units.
Section 405(g)(2) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173) extended the IPF PPS to distinct part psychiatric units of critical access hospitals (CAHs).
Section 3401(f) and section 10322 of the Patient Protection and Affordable Care Act (Pub. L. 111-148) as amended by section 10319(e) of that Act and by section 1105(d) of the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (hereafter referred to jointly as “the Affordable Care Act”)
Section 1886(s)(1) of the Act titled “Reference to Establishment and Implementation of System”, refers to section 124 of the BBRA, which relates to the establishment of the IPF PPS.
Section 1886(s)(2)(A)(i) of the Act requires the application of the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act to the IPF PPS for the Rate Year (RY) beginning in 2012 (that is, a RY that coincides with a FY) and each subsequent RY. As noted in our previous IPF PPS final rule (the FY 2016 IPF PPS final rule), for the RY beginning in 2015 (that is, FY 2016), the current estimate of the productivity adjustment is equal to 0.5 percent.
Section 1886(s)(2)(A)(ii) of the Act requires the application of an “other adjustment” that reduces any update to an IPF PPS base rate by percentages specified in section 1886(s)(3) of the Act for the RY beginning in 2010 through the RY beginning in 2019. As noted in our FY 2016 IPF PPS final rule, for the RY beginning in 2015 (that is, FY 2016), section 1886(s)(3)(D) of the Act requires the reduction to be 0.2 percentage point.
Sections 1886(s)(4)(A) and 1886(s)(4)(B) of the Act require that for RY 2014 and every subsequent year, IPFs that fail to report required quality data shall have their annual payment rate update reduced by 2.0 percentage points. This may result in an annual update being less than 0.0 for a rate year, and may result in payment rates for the upcoming rate year being less than such payment rates for the preceding rate year. Any reduction for failure to report required quality data shall apply only with respect to the rate year involved and the Secretary shall not take into account such reduction in computing the payment amount for a subsequent rate year. More information about the IPF Quality Reporting Program is available in the April 27, 2016 FY 2017 Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System Proposed Rule (81 FR 25238 through 25244).
To implement and periodically update these provisions, we have published various proposed and final rules and notices in the
The November 2004 IPF PPS final rule (69 FR 66922) established the IPF PPS, as required by section 124 of the BBRA and codified at subpart N of part 412 of the Medicare regulations. The November 2004 IPF PPS final rule set forth the per diem federal rates for the implementation year (the 18-month period from January 1, 2005 through June 30, 2006), and provided payment for the inpatient operating and capital costs to IPFs for covered psychiatric services they furnish (that is, routine, ancillary, and capital costs, but not costs of approved educational activities, bad debts, and other services or items that are outside the scope of the IPF PPS). Covered psychiatric services include services for which benefits are provided under the fee-for-service Part A (Hospital Insurance Program) of the Medicare program.
The IPF PPS established the federal per diem base rate for each patient day in an IPF derived from the national average daily routine operating, ancillary, and capital costs in IPFs in FY 2002. The average per diem cost was updated to the midpoint of the first year under the IPF PPS, standardized to account for the overall positive effects of the IPF PPS payment adjustments, and adjusted for budget-neutrality.
The federal per diem payment under the IPF PPS is comprised of the federal per diem base rate described above and certain patient- and facility-level payment adjustments that were found in the regression analysis to be associated with statistically significant per diem cost differences.
The patient-level adjustments include age, Diagnosis-Related Group (DRG) assignment, comorbidities; additionally, there are variable per diem adjustments to reflect higher per diem costs at the beginning of a patient's IPF stay. Facility-level adjustments include adjustments for the IPF's wage index, rural location, teaching status, a cost-of-living adjustment for IPFs located in Alaska and Hawaii, and an adjustment for the presence of a qualifying Emergency Department (ED).
The IPF PPS provides additional payment policies for: Outlier cases; interrupted stays; and a per treatment adjustment for patients who undergo ECT. During the IPF PPS mandatory 3-year transition period, stop-loss payments were also provided; however, since the transition ended in 2008, these payments are no longer available.
A complete discussion of the regression analysis that established the IPF PPS adjustment factors appears in the November 2004 IPF PPS final rule (69 FR 66933 through 66936).
Section 124 of the BBRA did not specify an annual rate update strategy for the IPF PPS and was broadly written to give the Secretary discretion in establishing an update methodology. Therefore, in the November 2004 IPF PPS final rule, we implemented the IPF PPS using the following update strategy:
• Calculate the final federal per diem base rate to be budget-neutral for the 18-month period of January 1, 2005 through June 30, 2006.
• Use a July 1 through June 30 annual update cycle.
• Allow the IPF PPS first update to be effective for discharges on or after July 1, 2006 through June 30, 2007.
In RY 2012, we proposed and finalized switching the IPF PPS payment rate update from a rate year that begins on July 1 and ends on June 30 to one that coincides with the federal fiscal year that begins October 1 and ends on September 30. In order to transition from one timeframe to another, the RY 2012 IPF PPS covered a 15-month period from July 1, 2011 through September 30, 2012. Therefore, the update cycle for FY 2016 was October 1, 2015 through September 30, 2016. For further discussion of the 15-month market basket update for RY 2012 and changing the payment rate update period to coincide with a FY period, we refer readers to the RY 2012 IPF PPS proposed rule (76 FR 4998) and the RY 2012 IPF PPS final rule (76 FR 26432).
In November 2004, we implemented the IPF PPS in a final rule that appeared in the November 15, 2004
In that final rule, we explained the reasons for delaying an update to the adjustment factors, derived from the regression analysis, until we have IPF PPS data that include as much information as possible regarding the patient-level characteristics of the
In the May 6, 2011 IPF PPS final rule (76 FR 26432), we changed the payment rate update period to a RY that coincides with a FY update. Therefore, update notices are now published in the
Our most recent IPF PPS annual update occurred in an August 5, 2015,
The input price index that was used to develop the IPF PPS was the “Excluded Hospital with Capital” market basket. This market basket was based on 1997 Medicare cost reports for Medicare participating inpatient rehabilitation facilities (IRFs), inpatient psychiatric facilities (IPFs), long-term care hospitals (LTCHs), cancer hospitals, and children's hospitals. Although “market basket” technically describes the mix of goods and services used in providing health care at a given point in time, this term is also commonly used to denote the input price index (that is, cost category weights and price proxies) derived from that market basket. Accordingly, the term “market basket,” as used in this document, refers to an input price index.
Beginning with the May 2006 IPF PPS final rule (71 FR 27046 through 27054), IPF PPS payments were updated using a 2002-based rehabilitation, psychiatric, and long-term care (RPL) market basket reflecting the operating and capital cost structures for freestanding IRFs, freestanding IPFs, and LTCHs. Cancer and children's hospitals were excluded from the RPL market basket because their payments are based entirely on reasonable costs subject to rate-of-increase limits established under the authority of section 1886(b) of the Act and not through a PPS. Also, the 2002 cost structures for cancer and children's hospitals are noticeably different than the cost structures of freestanding IRFs, freestanding IPFs, and LTCHs. See the May 2006 IPF PPS final rule (71 FR 27046 through 27054) for a complete discussion of the 2002-based RPL market basket.
In the May 1, 2009 IPF PPS notice (74 FR 20376), we expressed our interest in exploring the possibility of creating a stand-alone IPF market basket that reflects the cost structures of only IPF providers. One available option was to combine the Medicare cost report data from freestanding IPF providers with Medicare cost report data from hospital-based IPF providers. We indicated that an examination of the Medicare cost report data comparing freestanding IPFs and hospital-based IPFs showed differences between cost levels and cost structures. At that time, we were unable to fully understand these differences even after reviewing explanatory variables such as geographic variation, case mix (including DRG, comorbidity, and age), urban or rural status, teaching status, and presence of a qualifying emergency department. As a result, we continued to research ways to reconcile the differences and solicited public comment for additional information that might help us to better understand the reasons for the variations in costs and cost structures, as indicated by the Medicare cost report data (74 FR 20376). We summarized the public comments received and our responses in the April 2010 IPF PPS notice (75 FR 23111 through 23113). Despite receiving comments from the public on this issue, we were still unable to sufficiently reconcile the observed differences in costs and cost structures between hospital-based and freestanding IPFs; and therefore, at that time we did not believe it to be appropriate to incorporate data from hospital-based IPFs with those of freestanding IPFs to create a stand-alone IPF market basket.
Beginning with the RY 2012 IPF PPS final rule (76 FR 26432), IPF PPS payments were updated using a 2008-based RPL market basket reflecting the operating and capital cost structures for freestanding IRFs, freestanding IPFs, and LTCHs. The major changes for RY 2012 included: Updating the base year from FY 2002 to FY 2008; using a more specific composite chemical price proxy; breaking the professional fees cost category into two separate categories (Labor-related and Non-labor-related); and adding two additional cost categories (Administrative and Facilities Support Services and Financial Services), which were previously included in the residual All Other Services cost categories. The RY 2012 IPF PPS proposed rule (76 FR 4998) and RY 2012 final rule (76 FR 26432) contain a complete discussion of the development of the 2008-based RPL market basket.
In the FY 2016 IPF PPS proposed rule, we proposed to create a 2012-based IPF market basket, using Medicare cost report data for both freestanding and hospital-based IPFs. After consideration of the public comments, we finalized the creation and adoption of a 2012-based IPF market basket with a modification to the Wages and Salaries and Employee Benefits cost methodologies based on public comments. We believe that the use of the 2012-based IPF market basket to update IPF PPS payments is a technical improvement as it is based on Medicare Cost Report data from both freestanding and hospital-based IPFs. Furthermore, the 2012-based IPF market basket does not include costs from either IRF or LTCH providers, which were included in the 2008-based RPL market basket. We refer readers to the FY 2016 IPF PPS final rule for a detailed discussion of the 2012-based IPF PPS Market Basket and its development (80 FR 46656 through 46679).
For FY 2017 (beginning October 1, 2016 and ending September 30, 2017), we use an estimate of the 2012-based IPF market basket increase factor to update the IPF PPS base payment rate. Consistent with historical practice, we estimate the market basket update for the IPF PPS based on IHS Global Insight's forecast. IHS Global Insight, Inc. (IGI) is a nationally recognized economic and financial forecasting firm that contracts with the Centers for Medicare & Medicaid Services (CMS) to forecast the components of the market baskets and multifactor productivity (MFP). Based on IGI's second quarter 2016 forecast with historical data
Section 1886(s)(2)(A)(i) of the Act requires the application of the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act to the IPF PPS for the RY beginning in 2012 (a RY that coincides with a FY) and each subsequent RY. For this FY 2017 IPF PPS Notice, based on IGI's second quarter 2016 forecast, the MFP adjustment for FY 2017 (the 10-year moving average of MFP for the period ending FY 2017) is projected to be 0.3 percent. We reduced the IPF market basket estimate by this 0.3 percentage point productivity adjustment, as mandated by the Act. For more information on the productivity adjustment, please see the discussion in the FY 2016 IPF PPS final rule (80 FR 46675).
In addition, for FY 2017 the 2012-based IPF PPS market basket update is further reduced by 0.2 percentage point as required by sections 1886(s)(2)(A)(ii) and 1886(s)(3)(D) of the Act. This results in an estimated FY 2017 IPF PPS payment rate update of 2.3 percent (2.8 − 0.3 − 0.2 = 2.3).
Due to variations in geographic wage levels and other labor-related costs, we believe that payment rates under the IPF PPS should continue to be adjusted by a geographic wage index, which would apply to the labor-related portion of the Federal per diem base rate (hereafter referred to as the labor-related share).
The labor-related share is determined by identifying the national average proportion of total costs that are related to, influenced by, or vary with the local labor market. We continue to classify a cost category as labor-related if the costs are labor-intensive and vary with the local labor market.
Based on our definition of the labor-related share and the cost categories in the 2012-based IPF market basket, we are continuing to include in the labor-related share the sum of the relative importance of Wages and Salaries, Employee Benefits, Professional Fees: Labor-Related, Administrative and Facilities Support Services, Installation, Maintenance, and Repair, All Other: Labor-related Services, and a portion (46 percent) of the Capital-Related cost weight from the proposed 2012-based IPF market basket. The relative importance reflects the different rates of price change for these cost categories between the base year (FY 2012) and FY 2017. Using IGI's second quarter 2016 forecast for the final 2012-based IPF market basket, the IPF labor-related share for FY 2017 is the sum of the FY 2017 relative importance of each labor-related cost category.
Please see the FY 2016 IPF PPS final rule for more information on the labor-related share and its calculation (80 FR 46675 through 46679). For FY 2017, the updated labor-related share based on IGI's second quarter 2016 forecast of the 2012-based IPF PPS market basket is 75.1 percent.
The IPF PPS is based on a standardized Federal per diem base rate calculated from the IPF average per diem costs and adjusted for budget-neutrality in the implementation year. The Federal per diem base rate is used as the standard payment per day under the IPF PPS and is adjusted by the patient-level and facility-level adjustments that are applicable to the IPF stay. A detailed explanation of how we calculated the average per diem cost appears in the November 2004 IPF PPS final rule (69 FR 66926).
Section 124(a)(1) of the BBRA required that we implement the IPF PPS in a budget-neutral manner. In other words, the amount of total payments under the IPF PPS, including any payment adjustments, must be projected to be equal to the amount of total payments that would have been made if the IPF PPS were not implemented. Therefore, we calculated the budget-neutrality factor by setting the total estimated IPF PPS payments to be equal to the total estimated payments that would have been made under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) (Pub. L. 97-248) methodology had the IPF PPS not been implemented. A step-by-step description of the methodology used to estimate payments under the TEFRA payment system appears in the November 2004 IPF PPS final rule (69 FR 66926).
Under the IPF PPS methodology, we calculated the final Federal per diem base rate to be budget-neutral during the IPF PPS implementation period (that is, the 18-month period from January 1, 2005 through June 30, 2006) using a July 1 update cycle. We updated the average cost per day to the midpoint of the IPF PPS implementation period (October 1, 2005), and this amount was used in the payment model to establish the budget-neutrality adjustment.
Next, we standardized the IPF PPS Federal per diem base rate to account for the overall positive effects of the IPF PPS payment adjustment factors by dividing total estimated payments under the TEFRA payment system by estimated payments under the IPF PPS. Additional information concerning this standardization can be found in the November 2004 IPF PPS final rule (69 FR 66932) and the RY 2006 IPF PPS final rule (71 FR 27045). We then reduced the standardized Federal per diem base rate to account for the outlier policy, the stop loss provision, and anticipated behavioral changes. A complete discussion of how we calculated each component of the budget-neutrality adjustment appears in the November 2004 IPF PPS final rule (69 FR 66932 through 66933) and in the May 2006 IPF PPS final rule (71 FR 27044 through 27046). The final standardized budget-neutral Federal per diem base rate established for cost reporting periods beginning on or after January 1, 2005 was calculated to be $575.95.
The Federal per diem base rate has been updated in accordance with applicable statutory requirements and § 412.428 through publication of annual notices or proposed and final rules. A detailed discussion on the standardized budget-neutral Federal per diem base rate and the electroconvulsive therapy (ECT) payment per treatment appears in the August 2013 IPF PPS update notice (78 FR 46738 through 46739). These documents are available on the CMS Web site at
IPFs must include a valid procedure code for ECT services provided to IPF beneficiaries in order to bill for ECT services, as described in our Medicare claims processing manual, chapter 3, section 190.7.3 (available at
The current (FY 2016) Federal per diem base rate is $743.73 and the ECT payment per treatment is $320.19. For FY 2017, we applied a payment rate update of 2.3 percent (that is, the 2012-based IPF market basket increase for FY 2017 of 2.8 percent less the productivity adjustment of 0.3 percentage point, and further reduced by the 0.2 percentage point required under section
Section 1886(s)(4)(A)(i) of the Act requires that, for RY 2014 and each subsequent RY, the Secretary shall reduce any annual update to a standard Federal rate for discharges occurring during the RY by 2.0 percentage points for any IPF that did not comply with the quality data submission requirements with respect to an applicable year. Therefore, we are applying a 2.0 percentage point reduction to the Federal per diem base rate and the ECT payment per treatment as follows: For IPFs that failed to submit quality reporting data under the Inpatient Psychiatric Facilities Quality Reporting (IPFQR) program, we are applying a 0.3 percent payment rate update (that is, 2.3 percent reduced by 2 percentage points in accordance with section 1886(s)(4)(A)(ii) of the Act) and the wage index budget-neutrality factor of 1.0007 to the FY 2016 Federal per diem base rate of $743.73, yielding a Federal per diem base rate of $746.48 for FY 2017. Similarly, for IPFs that failed to submit quality reporting data under the IPFQR program, we are applying the 0.3 percent annual payment rate update and the 1.0007 wage index budget-neutrality factor to the FY 2016 ECT payment per treatment of $320.19, yielding an ECT payment per treatment of $321.38 for FY 2017.
The IPF PPS payment adjustments were derived from a regression analysis of 100 percent of the FY 2002 MedPAR data file, which contained 483,038 cases. For a more detailed description of the data file used for the regression analysis, see the November 2004 IPF PPS final rule (69 FR 66935 through 66936). We continue to use the existing regression-derived adjustment factors established in 2005 for FY 2017. However, we have used more recent claims data to simulate payments to set the outlier fixed dollar loss threshold amount and to assess the impact of the IPF PPS updates.
The IPF PPS includes payment adjustments for the following patient-level characteristics: Medicare Severity Diagnosis Related Groups (MS-DRGs) assignment of the patient's principal diagnosis, selected comorbidities, patient age, and the variable per diem adjustments.
We believe it is important to maintain the same diagnostic coding and DRG classification for IPFs that are used under the Inpatient Prospective Payment System (IPPS) for providing psychiatric care. For this reason, when the IPF PPS was implemented for cost reporting periods beginning on or after January 1, 2005, we adopted the same diagnostic code set (ICD-9-CM) and DRG patient classification system (CMS DRGs) that were utilized at the time under the IPPS. In the May 2008 IPF PPS notice (73 FR 25709), we discussed CMS' effort to better recognize resource use and the severity of illness among patients. CMS adopted the new MS-DRGs for the IPPS in the FY 2008 IPPS final rule with comment period (72 FR 47130). In the 2008 IPF PPS notice (73 FR 25716), we provided a crosswalk to reflect changes that were made under the IPF PPS to adopt the new MS-DRGs. For a detailed description of the mapping changes from the original DRG adjustment categories to the current MS-DRG adjustment categories, we refer readers to the May 2008 IPF PPS notice (73 FR 25714).
The IPF PPS includes payment adjustments for designated psychiatric DRGs assigned to the claim based on the patient's principal diagnosis. The DRG adjustment factors were expressed relative to the most frequently reported psychiatric DRG in FY 2002, that is, DRG 430 (psychoses). The coefficient values and adjustment factors were derived from the regression analysis. Mapping the DRGs to the MS-DRGs resulted in the current 17 IPF MS-DRGs, instead of the original 15 DRGs, for which the IPF PPS provides an adjustment. For the FY 2017 update, we are not making any changes to the IPF MS-DRG adjustment factors.
In FY 2015 rulemaking (79 FR 45945 through 45947), we proposed and finalized conversions of the ICD-9-CM-based MS-DRGs to ICD-10-CM/PCS-based MS-DRGs, which were implemented on October 1, 2015. Further information on the ICD-10-CM/PCS MS-DRG conversion project can be found on the CMS ICD-10-CM Web site at
For FY 2017, we will continue to make a payment adjustment for psychiatric diagnoses that group to one of the existing 17 IPF MS-DRGs listed in Addendum A. Psychiatric principal diagnoses that do not group to one of the 17 designated DRGs will still receive the Federal per diem base rate and all other applicable adjustments, but the payment would not include a DRG adjustment.
The diagnoses for each IPF MS-DRG will be updated as of October 1, 2016, using the final FY 2017 ICD-10-CM/PCS code sets. The FY 2017 IPPS Final Rule with comment period includes tables of the changes to the ICD-10-CM/PCS code sets which underlie the FY 2017 IPF MS-DRGs. Both the FY 2017 IPPS final rule and the tables of changes to the ICD-10-CM/PCS code sets which underlie the FY 2017 MS-DRGs are available on the IPPS Web site at
As discussed in the ICD-10-CM Official Guidelines for Coding and Reporting, certain conditions have both an underlying etiology and multiple body system manifestations due to the underlying etiology. For such conditions, the ICD-10-CM has a coding convention that requires the underlying condition be sequenced first followed by the manifestation. Wherever such a combination exists, there is a “use additional code” note at the etiology code, and a “code first” note at the manifestation code. These instructional notes indicate the proper sequencing order of the codes (etiology followed by manifestation). In accordance with the ICD-10-CM Official Guidelines for Coding and Reporting, when a primary (psychiatric) diagnosis code has a “code first” note, the provider would follow the instructions in the ICD-10-CM text. The submitted claim goes through the CMS processing system, which will identify the primary diagnosis code as non-psychiatric and search the secondary codes for a psychiatric code to assign a DRG code for adjustment. The system will continue to search the secondary codes for those that are appropriate for comorbidity adjustment.
For more information on “code first” policy, please see the November 2004 IPF PPS Final Rule (69 FR 66945). In the FY 2015 IPF PPS final rule, we provided a “code first” table for reference that highlights the same or similar manifestation codes where the “code
The intent of the comorbidity adjustments is to recognize the increased costs associated with comorbid conditions by providing additional payments for certain existing medical or psychiatric conditions that are expensive to treat. In the May 2011 IPF PPS final rule (76 FR 26451 through 26452), we explained that the IPF PPS includes 17 comorbidity categories and identified the new, revised, and deleted ICD-9-CM diagnosis codes that generate a comorbid condition payment adjustment under the IPF PPS for RY 2012 (76 FR 26451).
Comorbidities are specific patient conditions that are secondary to the patient's principal diagnosis and that require treatment during the stay. Diagnoses that relate to an earlier episode of care and have no bearing on the current hospital stay are excluded and must not be reported on IPF claims. Comorbid conditions must exist at the time of admission or develop subsequently, and affect the treatment received, length of stay (LOS), or both treatment and LOS.
For each claim, an IPF may receive only one comorbidity adjustment within a comorbidity category, but it may receive an adjustment for more than one comorbidity category. Current billing instructions for discharge claims, on or after October 1, 2015, require IPFs to enter the complete ICD-10-CM codes for up to 24 additional diagnoses if they co-exist at the time of admission, or develop subsequently and impact the treatment provided.
The comorbidity adjustments were determined based on the regression analysis using the diagnoses reported by IPFs in FY 2002. The principal diagnoses were used to establish the DRG adjustments and were not accounted for in establishing the comorbidity category adjustments, except where ICD-9-CM “code first” instructions apply. In a “code first” situation, the submitted claim goes through the CMS processing system, which will identify the primary diagnosis code as non-psychiatric and search the secondary codes for a psychiatric code to assign a DRG code for adjustment. The system will continue to search the secondary codes for those that are appropriate for comorbidity adjustment.
As noted previously, it is our policy to maintain the same diagnostic coding set for IPFs that is used under the IPPS for providing the same psychiatric care. The 17 comorbidity categories formerly defined using ICD-9-CM codes were converted to ICD-10-CM/PCS in the FY 2015 IPF PPS final rule (79 FR 45947 to 45955). The goal for converting the comorbidity categories is referred to as replication, meaning that the payment adjustment for a given patient encounter is the same after ICD-10-CM implementation as it would be if the same record had been coded in ICD-9-CM and submitted prior to ICD-10-CM/PCS implementation on October 1, 2015. All conversion efforts were made with the intent of achieving this goal. For FY 2017, we will use the comorbidity adjustments in effect in FY 2016, which are found in Addendum A to this notice. We have also updated the ICD-10-CM/PCS codes which are associated with the existing IPF PPS comorbidity categories, based upon the FY 2017 update to the ICD-10-CM/PCS code set. In accordance with the policy established in the FY 2015 IPF PPS Final Rule (79 FR 45949 through 45952), we reviewed all new FY 2017 ICD-10-CM codes to remove site unspecified codes from the new FY 2017 ICD-10-CM/PCS codes in instances where more specific codes are available. Based on our review, we are excluding new FY 2017 ICD-10-CM code D49519 (“Neoplasm of unspecified behavior of unspecified kidney”) in the Oncology Treatment comorbidity category. Please see Addendum B to this notice for a table of changes to the ICD-10-CM/PCS codes which affect FY 2017 IPF PPS comorbidity categories.
As explained in the November 2004 IPF PPS final rule (69 FR 66922), we analyzed the impact of age on per diem cost by examining the age variable (range of ages) for payment adjustments. In general, we found that the cost per day increases with age. The older age groups are more costly than the under 45 age group, the differences in per diem cost increase for each successive age group, and the differences are statistically significant. For FY 2017, we will use the patient age adjustments currently in effect in FY 2016, as shown in Addendum A to this notice.
We explained in the November 2004 IPF PPS final rule (69 FR 66946) that the regression analysis indicated that per diem cost declines as the LOS increases. The variable per diem adjustments to the Federal per diem base rate account for ancillary and administrative costs that occur disproportionately in the first days after admission to an IPF. We used a regression analysis to estimate the average differences in per diem cost among stays of different lengths. As a result of this analysis, we established variable per diem adjustments that begin on day 1 and decline gradually until day 21 of a patient's stay. For day 22 and thereafter, the variable per diem adjustment remains the same each day for the remainder of the stay. However, the adjustment applied to day 1 depends upon whether the IPF has a qualifying ED. If an IPF has a qualifying ED, it receives a 1.31 adjustment factor for day 1 of each stay. If an IPF does not have a qualifying ED, it receives a 1.19 adjustment factor for day 1 of the stay. The ED adjustment is explained in more detail in section III.D.4 of this notice.
For FY 2017, we will use the variable per diem adjustment factors currently in effect as shown in Addendum A to this notice. A complete discussion of the variable per diem adjustments appears in the November 2004 IPF PPS final rule (69 FR 66946).
The IPF PPS includes facility-level adjustments for the wage index, IPFs located in rural areas, teaching IPFs, cost of living adjustments for IPFs located in Alaska and Hawaii, and IPFs with a qualifying ED.
As discussed in the May 2006 IPF PPS final rule (71 FR 27061) and in the May 2008 (73 FR 25719) and May 2009 (74 FR 20373) IPF PPS notices, in order to provide an adjustment for geographic wage levels, the labor-related portion of an IPF's payment is adjusted using an appropriate wage index. Currently, an IPF's geographic wage index value is determined based on the actual location of the IPF in an urban or rural area as defined in § 412.64(b)(1)(ii)(A) and (C).
Since the inception of the IPF PPS, we have used the pre-floor, pre-reclassified acute care hospital wage index in developing a wage index to be applied to IPFs because there is not an IPF-specific wage index available. We believe that IPFs compete in the same labor markets as acute care hospitals, so the pre-floor, pre-reclassified hospital wage index should reflect IPF labor costs. As discussed in the May 2006 IPF PPS final rule for FY 2007 (71 FR 27061 through 27067), under the IPF PPS, the wage index is calculated using the IPPS
We apply the wage index adjustment to the labor-related portion of the federal rate, which changed from 75.2 percent in FY 2016 to 75.1 percent in FY 2017. This percentage reflects the labor-related share of the 2012-based IPF market basket for FY 2017 (see section III.A.3 of this notice).
OMB publishes bulletins regarding Core-Based Statistical Area (CBSA) changes, including changes to CBSA numbers and titles. In the May 2006 IPF PPS final rule for RY 2007 (71 FR 27061 through 27067), we adopted the changes discussed in the Office of Management and Budget (OMB) Bulletin No. 03-04 (June 6, 2003), which announced revised definitions for Metropolitan Statistical Areas (MSAs), and the creation of Micropolitan Statistical Areas and Combined Statistical Areas. In adopting the OMB CBSA geographic designations in RY 2007, we did not provide a separate transition for the CBSA-based wage index since the IPF PPS was already in a transition period from TEFRA payments to PPS payments.
In the May 2008 IPF PPS notice, we incorporated the CBSA nomenclature changes published in the most recent OMB bulletin that applies to the hospital wage index used to determine the current IPF PPS wage index and stated that we expect to continue to do the same for all the OMB CBSA nomenclature changes in future IPF PPS rules and notices, as necessary (73 FR 25721). The OMB bulletins may be accessed online at
In accordance with our established methodology, we have historically adopted any CBSA changes that are published in the OMB bulletin that corresponds with the hospital wage index used to determine the IPF PPS wage index. For the FY 2015 IPF wage index, we used the FY 2014 pre-floor, pre-reclassified hospital wage index to adjust the IPF PPS payments. On February 28, 2013, OMB issued OMB Bulletin No. 13-01, which established revised delineations for MSAs, Micropolitan Statistical Areas, and Combined Statistical Areas, and provided guidance on the use of the delineations of these statistical areas. A copy of this bulletin may be obtained at
While we believe that the CBSA delineations implemented in the FY 2016 IPF PPS final rule resulted in wage index values that are more representative of the actual costs of labor in a given area, we also recognize that use of the new CBSA delineations resulted in reduced payments to some IPFs and increased payments to other IPFs, due to changes in wage index values. Therefore, in our FY 2016 IPF PPS final rule, we provided for a transition period to mitigate any negative impacts on facilities that experience reduced payments as a result of our adopting the new OMB CBSA delineations. We implemented these CBSA changes using a 1-year transition with a blended wage index for all providers (80 FR 46682 through 46689). The FY 2017 IPF PPS wage index and subsequent IPF PPS wage indices will be based solely on the new OMB CBSA delineations. The final FY 2017 IPF PPS wage index is located on the CMS Web site at
In the November 2004 IPF PPS final rule, we provided a 17 percent payment adjustment for IPFs located in a rural area. This adjustment was based on the regression analysis, which indicated that the per diem cost of rural facilities was 17 percent higher than that of urban facilities after accounting for the influence of the other variables included in the regression. For FY 2017, we will continue to apply a 17 percent payment adjustment for IPFs located in a rural area as defined at § 412.64(b)(1)(ii)(C). A complete discussion of the adjustment for rural locations appears in the November 2004 IPF PPS final rule (69 FR 66954).
As noted in section III.D.1.c of this notice, we adopted OMB updates to CBSA delineations in the FY 2016 IPF PPS transitional wage index. Adoption of the updated CBSAs changed the status of 37 IPF providers designated as “rural” in FY 2015 to “urban” for FY 2016 and subsequent fiscal years. As such, these 37 newly urban providers no longer receive the 17 percent rural adjustment.
In the FY 2016 IPF PPS final rule, we implemented a budget-neutral 3-year phase-out of the rural adjustment for the existing FY 2015 rural IPFs that became urban in FY 2016 and that experienced a loss in payments due to changes from the new CBSA delineations (80 FR 46689 to 46690). This policy allowed rural IPFs that were classified as urban in FY 2016 to receive two-thirds of the IPF PPS rural adjustment for FY 2016. For FY 2017, these IPFs will receive one-third of the IPF PPS rural adjustment. For FY 2018 and subsequent years, these IPFs will not receive any rural adjustment. We are now in the second year of the 3-year rural adjustment phase-out; therefore, these IPFs that were classified as rural in FY 2015, but were changed to urban in FY 2016 as a result of the OMB CBSA changes, will receive one-third of the 17 percent rural adjustment in FY 2017.
Changes to the wage index are made in a budget-neutral manner so that
In the November 2004 IPF PPS final rule, we implemented regulations at § 412.424(d)(1)(iii) to establish a facility-level adjustment for IPFs that are, or are part of, teaching hospitals. The teaching adjustment accounts for the higher indirect operating costs experienced by hospitals that participate in graduate medical education (GME) programs. The payment adjustments are made based on the ratio of the number of full-time equivalent (FTE) interns and residents training in the IPF and the IPF's average daily census (ADC).
Medicare makes direct GME payments (for direct costs such as resident and teaching physician salaries, and other direct teaching costs) to all teaching hospitals including those paid under a PPS, and those paid under the TEFRA rate-of-increase limits. These direct GME payments are made separately from payments for hospital operating costs and are not part of the IPF PPS. The direct GME payments do not address the estimated higher indirect operating costs teaching hospitals may face.
The results of the regression analysis of FY 2002 IPF data established the basis for the payment adjustments included in the November 2004 IPF PPS final rule. The results showed that the indirect teaching cost variable is significant in explaining the higher costs of IPFs that have teaching programs. We calculated the teaching adjustment based on the IPF's “teaching variable,” which is one plus the ratio of the number of FTE residents training in the IPF (subject to limitations described below) to the IPF's ADC.
We established the teaching adjustment in a manner that limited the incentives for IPFs to add FTE residents for the purpose of increasing their teaching adjustment. We imposed a cap on the number of FTE residents that may be counted for purposes of calculating the teaching adjustment. The cap limits the number of FTE residents that teaching IPFs may count for the purpose of calculating the IPF PPS teaching adjustment, not the number of residents teaching institutions can hire or train. We calculated the number of FTE residents that trained in the IPF during a “base year” and used that FTE resident number as the cap. An IPF's FTE resident cap is ultimately determined based on the final settlement of the IPF's most recent cost report filed before November 15, 2004 (publication date of the IPF PPS final rule). A complete discussion of the temporary adjustment to the FTE cap to reflect residents added due to hospital closure and by residency program appears in the January 27, 2011 IPF PPS proposed rule (76 FR 5018 through 5020) and the May 6, 2011 IPF PPS final rule (76 FR 26453 through 26456).
In the regression analysis, the logarithm of the teaching variable had a coefficient value of 0.5150. We converted this cost effect to a teaching payment adjustment by treating the regression coefficient as an exponent and raising the teaching variable to a power equal to the coefficient value. We note that the coefficient value of 0.5150 was based on the regression analysis holding all other components of the payment system constant. A complete discussion of how the teaching adjustment was calculated appears in the November 2004 IPF PPS final rule (69 FR 66954 through 66957) and the May 2008 IPF PPS notice (73 FR 25721). As with other adjustment factors derived through the regression analysis, we do not plan to rerun the teaching adjustment factors in the regression analysis until we more fully analyze IPF PPS data. Therefore, in this FY 2017 notice, we will continue to retain the coefficient value of 0.5150 for the teaching adjustment to the Federal per diem base rate.
The IPF PPS includes a payment adjustment for IPFs located in Alaska and Hawaii based upon the county in which the IPF is located. As we explained in the November 2004 IPF PPS final rule, the FY 2002 data demonstrated that IPFs in Alaska and Hawaii had per diem costs that were disproportionately higher than other IPFs. Other Medicare PPSs (for example: The IPPS and LTCH PPS) adopted a cost of living adjustment (COLA) to account for the cost differential of care furnished in Alaska and Hawaii.
We analyzed the effect of applying a COLA to payments for IPFs located in Alaska and Hawaii. The results of our analysis demonstrated that a COLA for IPFs located in Alaska and Hawaii would improve payment equity for these facilities. As a result of this analysis, we provided a COLA in the November 2004 IPF PPS final rule.
A COLA for IPFs located in Alaska and Hawaii is made by multiplying the non-labor-related portion of the Federal per diem base rate by the applicable COLA factor based on the COLA area in which the IPF is located.
The COLA factors are published on the Office of Personnel Management (OPM) Web site (
We note that the COLA areas for Alaska are not defined by county as are the COLA areas for Hawaii. In 5 CFR 591.207, the OPM established the following COLA areas:
• City of Anchorage, and 80-kilometer (50-mile) radius by road, as measured from the federal courthouse.
• City of Fairbanks, and 80-kilometer (50-mile) radius by road, as measured from the federal courthouse.
• City of Juneau, and 80-kilometer (50-mile) radius by road, as measured from the federal courthouse.
• Rest of the State of Alaska.
As stated in the November 2004 IPF PPS final rule, we update the COLA factors according to updates established by the OPM. However, sections 1911 through 1919 of the Nonforeign Area Retirement Equity Assurance Act, as contained in subtitle B of title XIX of the National Defense Authorization Act (NDAA) for Fiscal Year 2010 (Pub. L. 111-84, October 28, 2009), transitions the Alaska and Hawaii COLAs to locality pay. Under section 1914 of NDAA, locality pay is being phased in over a 3-year period beginning in
When we published the proposed COLA factors in the January 2011 IPF PPS proposed rule (76 FR 4998), we inadvertently selected the FY 2010 COLA rates, which had been reduced to account for the phase-in of locality pay. We did not intend to propose the reduced COLA rates because that would have understated the adjustment. Since the 2009 COLA rates did not reflect the phase-in of locality pay, we finalized the FY 2009 COLA rates for RY 2010 through RY 2014.
In the FY 2013 IPPS/LTCH final rule (77 FR 53700 through 53701), we established a methodology for FY 2014 to update the COLA factors for Alaska and Hawaii. Under that methodology, we use a comparison of the growth in the Consumer Price Indices (CPIs) in Anchorage, Alaska and Honolulu, Hawaii relative to the growth in the overall CPI as published by the Bureau of Labor Statistics (BLS) to update the COLA factors for all areas in Alaska and Hawaii, respectively. As discussed in the FY 2013 IPPS/LTCH proposed rule (77 FR 28145), because BLS publishes CPI data for only Anchorage, Alaska and Honolulu, Hawaii, our methodology for updating the COLA factors uses a comparison of the growth in the CPIs for those cities relative to the growth in the overall CPI to update the COLA factors for all areas in Alaska and Hawaii, respectively. We believe that the relative price differences between these cities and the United States (as measured by the CPIs mentioned above) are generally appropriate proxies for the relative price differences between the “other areas” of Alaska and Hawaii and the United States.
The CPIs for “All Items” that BLS publishes for Anchorage, Alaska, Honolulu, Hawaii, and for the average U.S. city are based on a different mix of commodities and services than is reflected in the non-labor-related share of the IPPS market basket. As such, under the methodology we established to update the COLA factors, we calculated a “reweighted CPI” using the CPI for commodities and the CPI for services for each of the geographic areas to mirror the composition of the IPPS market basket non-labor-related share. The current composition of BLS' CPI for “All Items” for all of the respective areas is approximately 40 percent commodities and 60 percent services. However, the non-labor-related share of the IPPS market basket is comprised of 60 percent commodities and 40 percent services. Therefore, under the methodology established for FY 2014 in the FY 2013 IPPS/LTCH PPS final rule, we created reweighted indexes for Anchorage, Alaska, Honolulu, Hawaii, and the average U.S. city using the respective CPI commodities index and CPI services index and applying the approximate 60/40 weights from the IPPS market basket. This approach is appropriate because we would continue to make a COLA for hospitals located in Alaska and Hawaii by multiplying the non-labor-related portion of the standardized amount by a COLA factor.
Under the COLA factor update methodology established in the FY 2014 IPPS/LTCH final rule, we adjusted payments made to hospitals located in Alaska and Hawaii by incorporating a 25 percent cap on the CPI-updated COLA factors. We note that OPM's COLA factors were calculated with a statutorily mandated cap of 25 percent, and since at least 1984, we have exercised our discretionary authority to adjust Alaska and Hawaii payments by incorporating this cap. In keeping with this historical policy, we continue to use such a cap because our CPI-updated COLA factors use the 2009 OPM COLA factors as a basis.
In FY 2015 IPF PPS rulemaking, we adopted the same methodology for the COLA factors applied under the IPPS because IPFs are hospitals with a similar mix of commodities and services. We think it is appropriate to have a consistent policy approach with that of other hospitals in Alaska and Hawaii. Therefore, in the FY 2015 IPF PPS final rule, we adopted the cost of living adjustment factors shown in Addendum A for IPFs located in Alaska and Hawaii. Under IPPS COLA policy, the COLA updates are determined every four years, when the IPPS market basket is rebased. Since the IPPS COLA factors were last updated in FY 2014, they are not scheduled to be updated again until FY 2018. As such, we will continue using the existing IPF PPS COLA factors in effect in FY 2016 for FY 2017. The IPF PPS COLA factors for FY 2017 are shown in Addendum A to this notice.
The IPF PPS includes a facility-level adjustment for IPFs with qualifying EDs. We provide an adjustment to the Federal per diem base rate to account for the costs associated with maintaining a full-service ED. The adjustment is intended to account for ED costs incurred by a freestanding psychiatric hospital with a qualifying ED or a distinct part psychiatric unit of an acute care hospital or a CAH, for preadmission services otherwise payable under the Medicare Outpatient Prospective Payment System (OPPS), furnished to a beneficiary on the date of the beneficiary's admission to the hospital and during the day immediately preceding the date of admission to the IPF (see § 413.40(c)(2)), and the overhead cost of maintaining the ED. This payment is a facility-level adjustment that applies to all IPF admissions (with one exception described below), regardless of whether a particular patient receives preadmission services in the hospital's ED.
The ED adjustment is incorporated into the variable per diem adjustment for the first day of each stay for IPFs with a qualifying ED. Those IPFs with a qualifying ED receive an adjustment factor of 1.31 as the variable per diem adjustment for day 1 of each patient stay. If an IPF does not have a qualifying ED, it receives an adjustment factor of 1.19 as the variable per diem adjustment for day 1 of each patient stay.
The ED adjustment is made on every qualifying claim except as described below. As specified in § 412.424(d)(1)(v)(B), the ED adjustment is not made when a patient is discharged from an acute care hospital or CAH and admitted to the same hospital's or CAH's psychiatric unit. We clarified in the November 2004 IPF PPS final rule (69 FR 66960) that an ED adjustment is not made in this case because the costs associated with ED services are reflected in the DRG payment to the acute care hospital or through the reasonable cost payment made to the CAH.
Therefore, when patients are discharged from an acute care hospital or CAH and admitted to the same hospital or CAH's psychiatric unit, the IPF receives the 1.19 adjustment factor as the variable per diem adjustment for the first day of the patient's stay in the IPF. For FY 2017, we will continue to retain the 1.31 adjustment factor for IPFs with qualifying EDs. A complete discussion of the steps involved in the calculation of the ED adjustment factor appears in the November 2004 IPF PPS final rule (69 FR 66959 through 66960) and the May 2006 IPF PPS final rule (71 FR 27070 through 27072).
The IPF PPS includes an outlier adjustment to promote access to IPF care for those patients who require expensive care and to limit the financial risk of IPFs treating unusually costly patients. In the November 2004 IPF PPS
We make outlier payments for discharges in which an IPF's estimated total cost for a case exceeds a fixed dollar loss threshold amount (multiplied by the IPF's facility-level adjustments) plus the Federal per diem payment amount for the case.
In instances when the case qualifies for an outlier payment, we pay 80 percent of the difference between the estimated cost for the case and the adjusted threshold amount for days 1 through 9 of the stay (consistent with the median LOS for IPFs in FY 2002), and 60 percent of the difference for day 10 and thereafter. We established the 80 percent and 60 percent loss sharing ratios because we were concerned that a single ratio established at 80 percent (like other Medicare PPSs) might provide an incentive under the IPF per diem payment system to increase LOS in order to receive additional payments.
After establishing the loss sharing ratios, we determined the current fixed dollar loss threshold amount through payment simulations designed to compute a dollar loss beyond which payments are estimated to meet the 2 percent outlier spending target. Each year when we update the IPF PPS, we simulate payments using the latest available data to compute the fixed dollar loss threshold so that outlier payments represent 2 percent of total projected IPF PPS payments.
In accordance with the update methodology described in § 412.428(d), we are updating the fixed dollar loss threshold amount used under the IPF PPS outlier policy. Based on the regression analysis and payment simulations used to develop the IPF PPS, we established a 2 percent outlier policy, which strikes an appropriate balance between protecting IPFs from extraordinarily costly cases while ensuring the adequacy of the Federal per diem base rate for all other cases that are not outlier cases.
Based on an analysis of the latest available data (the March 2016 update of FY 2015 IPF claims) and rate increases, we believe it is necessary to update the fixed dollar loss threshold amount in order to maintain an outlier percentage that equals 2 percent of total estimated IPF PPS payments. To update the IPF outlier threshold amount for FY 2017, we used FY 2015 claims data and the same methodology that we used to set the initial outlier threshold amount in the May 2006 IPF PPS final rule (71 FR 27072 and 27073), which is also the same methodology that we used to update the outlier threshold amounts for years 2008 through 2016. Based on an analysis of these updated data, we estimate that IPF outlier payments as a percentage of total estimated payments are approximately 2.1 percent in FY 2016. Therefore, we will update the outlier threshold amount to $10,120 to maintain estimated outlier payments at 2 percent of total estimated aggregate IPF payments for FY 2017.
Under the IPF PPS, an outlier payment is made if an IPF's cost for a stay exceeds a fixed dollar loss threshold amount plus the IPF PPS amount. In order to establish an IPF's cost for a particular case, we multiply the IPF's reported charges on the discharge bill by its overall cost-to-charge ratio (CCR). This approach to determining an IPF's cost is consistent with the approach used under the IPPS and other PPSs. In the June 2003 IPPS final rule (68 FR 34494), we implemented changes to the IPPS policy used to determine CCRs for acute care hospitals because we became aware that payment vulnerabilities resulted in inappropriate outlier payments. Under the IPPS, we established a statistical measure of accuracy for CCRs in order to ensure that aberrant CCR data did not result in inappropriate outlier payments.
As we indicated in the November 2004 IPF PPS final rule (69 FR 66961), because we believe that the IPF outlier policy is susceptible to the same payment vulnerabilities as the IPPS, we adopted a method to ensure the statistical accuracy of CCRs under the IPF PPS. Specifically, we adopted the following procedure in the November 2004 IPF PPS final rule: We calculated 2 national ceilings, one for IPFs located in rural areas and one for IPFs located in urban areas. We computed the ceilings by first calculating the national average and the standard deviation of the CCR for both urban and rural IPFs using the most recent CCRs entered in the CY 2016 Provider Specific File.
To determine the rural and urban ceilings, we multiplied each of the standard deviations by 3 and added the result to the appropriate national CCR average (either rural or urban). The upper threshold CCR for IPFs in FY 2017 is 1.9315 for rural IPFs, and 1.6374 for urban IPFs, based on CBSA-based geographic designations. If an IPF's CCR is above the applicable ceiling, the ratio is considered statistically inaccurate, and we assign the appropriate national (either rural or urban) median CCR to the IPF.
We apply the national CCRs to the following situations:
• New IPFs that have not yet submitted their first Medicare cost report. We continue to use these national CCRs until the facility's actual CCR can be computed using the first tentatively or final settled cost report.
• IPFs whose overall CCR is in excess of three standard deviations above the corresponding national geometric mean (that is, above the ceiling).
• Other IPFs for which the Medicare Administrative Contractor (MAC) obtains inaccurate or incomplete data with which to calculate a CCR.
We are updating the FY 2017 national median and ceiling CCRs for urban and rural IPFs based on the CCRs entered in the latest available IPF PPS Provider Specific File. Specifically, for FY 2017, to be used in each of the three situations listed above, using the most recent CCRs entered in the CY 2016 Provider Specific File, we estimate a national median CCR of 0.5960 for rural IPFs and a national median CCR of 0.4455 for urban IPFs. These calculations are based on the IPF's location (either urban or rural) using the CBSA-based geographic designations.
A complete discussion regarding the national median CCRs appears in the November 2004 IPF PPS final rule (69 FR 66961 through 66964).
For RY 2012, we identified several areas of concern for future refinement, and we invited comments on these issues in our RY 2012 proposed and final rules. For further discussion of these issues and to review the public comments, we refer readers to the RY 2012 IPF PPS proposed rule (76 FR 4998) and final rule (76 FR 26432).
We have delayed making refinements to the IPF PPS until we have completed a thorough analysis of IPF PPS data on which to base those refinements. Specifically, we will delay updating the adjustment factors derived from the regression analysis until we have IPF
As we noted in the FY 2016 IPF PPS final rule (80 FR 46693 to 46694), our preliminary analysis of 2012 to 2013 IPF data found that over 20 percent of IPF stays reported no ancillary costs, such as laboratory and drug costs, in their cost reports, or laboratory or drug charges on their claims. Because we expect that most patients requiring hospitalization for active psychiatric treatment will need drugs and laboratory services, we again remind providers that the IPF PPS per diem payment rate includes the cost of all ancillary services, including drugs and laboratory services. We pay only the IPF for services furnished to a Medicare beneficiary who is an inpatient of that IPF, except for certain professional services, and payments are considered to be payments in full for all inpatient hospital services provided directly or under arrangement (see 42 CFR 412.404(d)), as specified in 42 CFR 409.10.
We are continuing to analyze data from claims and cost report that do not include ancillary charges or costs, and will be sharing our findings with the Center for Program Integrity and the Office of Financial Management for further investigation, as the results warrant. Our refinement analysis is dependent on recent precise data for costs, including ancillary costs. We will continue to collect these data and analyze them for both timeliness and accuracy with the expectation that these data will be used in a future refinement. Since we are not making refinements for FY 2017, we will continue to use the existing adjustment factors.
We ordinarily publish a notice of proposed rulemaking in the
We find it is unnecessary to undertake notice and comment rulemaking for this action because the updates in this notice do not reflect any substantive changes in policy, but merely reflect the application of previously established methodologies. Therefore, under 5 U.S.C. 553(b)(3)(B), for good cause, we waive notice and comment procedures.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This notice updates the prospective payment rates for Medicare inpatient hospital services provided by IPFs for discharges occurring during FY 2017 (October 1, 2016 through September 30, 2017). We are applying the 2012-based IPF market basket increase of 2.8 percent, less the productivity adjustment of 0.3 percentage point as required by 1886(s)(2)(A)(i) of the Act, and further reduced by 0.2 percentage point as required by sections 1886(s)(2)(A)(ii) and 1886(s)(3)(D) of the Act, for a total FY 2017 payment rate update of 2.3 percent. In this notice, we are also updating the IPF labor-related share; updating the IPF Wage Index for FY 2017; and continuing with the second year of the rural adjustment phase-out for rural providers which became urban providers in FY 2016 as a result of FY 2016 changes to CBSA delineations.
We have examined the impact of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for a major rules with economically significant effects ($100 million or more in any 1 year). This notice is designated as economically “significant” under section 3(f)(1) of Executive Order 12866.
We estimate that the total impact of these changes for FY 2017 payments compared to FY 2016 payments will be a net increase of approximately $100 million. This reflects a $105 million increase from the update to the payment rates (+$130 million from the unadjusted 2nd quarter 2016 IGI forecast of the 2012-based IPF market basket of 2.8 percent, −$15 million for the productivity adjustment of 0.3 percentage point, and −$10 million for the other adjustment of 0.2 percentage point), as well as a $5 million decrease as a result of the update to the outlier threshold amount. Outlier payments are estimated to decrease from 2.1 percent in FY 2016 to 2.0 percent of total estimated IPF payments in FY 2017.
The RFA requires agencies to analyze options for regulatory relief of small entities if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most IPFs and most other providers and suppliers are small entities, either by nonprofit status or having revenues of $7.5 million to $38.5 million or less in any 1 year, depending on industry classification (for details, refer to the SBA Small Business Size Standards found at
Because we lack data on individual hospital receipts, we cannot determine the number of small proprietary IPFs or the proportion of IPFs' revenue derived from Medicare payments. Therefore, we assume that all IPFs are considered small entities. The Department of Health and Human Services generally uses a revenue impact of 3 to 5 percent as a significance threshold under the RFA.
As shown in Table 1, we estimate that the overall revenue impact of this notice on all IPFs is to increase Medicare payments by approximately 2.2 percent. As a result, since the estimated impact of this notice is a net increase in revenue across almost all categories of IPFs, the Secretary has determined that this notice will have a positive revenue impact on a substantial number of small entities. MACs are not considered to be small entities. Individuals and states are not included in the definition of a small entity.
In addition, section 1102(b) of the Social Security Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. As discussed in detail below, the rates and policies set forth in this notice would not have an adverse impact on the rural hospitals based on the data of the 279 rural units and 64 rural hospitals in our database of 1,626 IPFs for which data were available. Therefore, the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that threshold is approximately $146 million. This notice will not impose spending costs on state, local, or tribal governments in the aggregate, or by the private sector of $146 million or more.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. As stated above, this notice would not have a substantial effect on state and local governments.
In this section, we discuss the historical background of the IPF PPS and the impact of this notice on the Federal Medicare budget and on IPFs.
As discussed in the November 2004 and May 2006 IPF PPS final rules, we applied a budget neutrality factor to the Federal per diem base rate and ECT payment per treatment to ensure that total estimated payments under the IPF PPS in the implementation period would equal the amount that would have been paid if the IPF PPS had not been implemented. The budget neutrality factor includes the following components: Outlier adjustment, stop-loss adjustment, and the behavioral offset. As discussed in the May 2008 IPF PPS notice (73 FR 25711), the stop-loss adjustment is no longer applicable under the IPF PPS.
As discussed in section III.D.1 of this notice, we are using the wage index and labor-related share in a budget neutral manner by applying a wage index budget neutrality factor to the Federal per diem base rate and ECT payment per treatment. Therefore, the budgetary impact to the Medicare program of this notice will be due to the market basket update for FY 2017 of 2.8 percent (see section III.A.2 of this notice) less the productivity adjustment of 0.3 percentage point required by section 1886(s)(2)(A)(i) of the Act; further reduced by the “other adjustment” of 0.2 percentage point under sections 1886(s)(2)(A)(ii) and 1886(s)(3)(D) of the Act; and the update to the outlier fixed dollar loss threshold amount.
We estimate that the FY 2017 impact will be a net increase of $100 million in payments to IPF providers. This reflects an estimated $105 million increase from the update to the payment rates and a $5 million decrease due to the update to the outlier threshold amount to set total estimated outlier payments at 2 percent of total estimated payments in FY 2017. This estimate does not include the implementation of the required 2 percentage point reduction of the market basket increase factor for any IPF that fails to meet the IPF quality reporting requirements (as discussed in section III.B.2).
To show the impact on providers of the changes to the IPF PPS discussed in this notice, we compare estimated payments under the IPF PPS rates and factors for FY 2017 versus those under FY 2016. We determined the percent change of estimated FY 2017 IPF PPS payments compared to FY 2016 IPF PPS payments for each category of IPFs. In addition, for each category of IPFs, we have included the estimated percent change in payments resulting from the update to the outlier fixed dollar loss threshold amount; the updated wage index data; the changes to rural adjustment payments resulting from the second year of the rural adjustment phase-out, due to changes in rural or urban status resulting from FY 2016 CBSA changes; the final labor-related share; and the final market basket update for FY 2017, as adjusted by the productivity adjustment according to section 1886(s)(2)(A)(i) of the Act, and the “other adjustment” according to sections 1886(s)(2)(A)(ii) and 1886(s)(3)(D) of the Act.
To illustrate the impacts of the FY 2017 changes in this notice, our analysis begins with a FY 2016 baseline simulation model based on FY 2015 IPF payments inflated to the midpoint of FY 2016 using IHS Global Insight Inc.'s most recent forecast of the market basket update (see section III.A.2. of this notice); the estimated outlier payments in FY 2016; the CBSA delineations for IPFs based on revised OMB delineations issued on February 28, 2013, in OMB Bulletin No. 13-01 (which were implemented in the FY 2016 IPF transitional wage index as described in section III.D.1); the FY 2015 pre-floor, pre-reclassified hospital wage index; the FY 2016 labor-related share; and the FY 2016 percentage amount of the rural adjustment. During the simulation, total outlier payments are maintained at 2 percent of total estimated IPF PPS payments.
Each of the following changes is added incrementally to this baseline model in order for us to isolate the effects of each change:
• The update to the outlier fixed dollar loss threshold amount;
• the FY 2016 pre-floor, pre-reclassified hospital wage index with the updated CBSA delineations, based on OMB's February 28, 2013 Bulletin No. 13-01, which are applied in full in the FY 2017 IPF PPS wage index;
• the FY 2017 labor-related share;
• the market basket update for FY 2017 of 2.8 percent less the productivity adjustment of 0.3 percentage point in accordance with section 1886(s)(2)(A)(i) of the Act and further reduced by the “other adjustment” of 0.2 percentage point in accordance with sections 1886(s)(2)(A)(ii) and 1886(s)(3)(D) of the Act, for a payment rate update of 2.3 percent.
Our final comparison illustrates the percent change in payments from FY 2016 (that is, October 1, 2015, to September 30, 2016) to FY 2017 (that is, October 1, 2016, to September 30, 2017) including all the changes in this notice.
Table 1 displays the results of our analysis. The table groups IPFs into the categories listed below based on characteristics provided in the Provider of Services (POS) file, the IPF provider specific file, and cost report data from the Healthcare Cost Report Information System:
The top row of the table shows the overall impact on the 1,626 IPFs included in this analysis. In column 3, we present the effects of the update to the outlier fixed dollar loss threshold amount. We estimate that IPF outlier payments as a percentage of total IPF payments are 2.1 percent in FY 2016. Thus, we are adjusting the outlier threshold amount in this notice to set total estimated outlier payments equal to 2 percent of total payments in FY 2017. The estimated change in total IPF payments for FY 2017, therefore, includes an approximate 0.1 percent decrease in payments because the outlier portion of total payments is expected to decrease from approximately 2.1 percent to 2.0 percent.
The overall impact of this outlier adjustment update (as shown in column 3 of Table 1), across all hospital groups, is to decrease total estimated payments to IPFs by 0.1 percent. The largest decrease in payments is estimated to be a 0.2 percent decrease in payments for urban government IPF units and IPFs with 10 percent or greater interns and residents to beds.
In column 4, we present the effects of the budget-neutral update to the IPF wage index and the Labor Related Share (LRS). This represents the effect of using the most recent wage data available and taking into account the updated OMB delineations. That is, the impact represented in this column reflects the update from the FY 2016 IPF transitional wage index to the FY 2017 IPF wage index, which includes the full effect of FY 2016 changes to the OMB delineations, and the LRS update from 75.2 percent in FY 2016 to 75.1 percent in FY 2017. We note that there is no projected change in aggregate payments to IPFs, as indicated in the first row of column 4, however, there will be distributional effects among different categories of IPFs. For example, we estimate the largest increase in payments to be 0.8 percent for IPFs in the Pacific region, and the largest decrease in payments to be 1.2 percent for rural for-profit freestanding IPFs.
In column 5, we present the estimated effects of the update to the IPF PPS payment rates of 2.3 percent, which are based on the 2012-based IPF market basket update of 2.8 percent, less the productivity adjustment of 0.3 percentage point in accordance with section 1886(s)(2)(A)(i) of the Act, and further reduced by 0.2 percentage point in accordance with sections 1886(s)(2)(A)(ii) and 1886(s)(3)(D) of the Act.
Finally, column 6 compares our estimates of the total changes reflected in this notice for FY 2017 to the estimates for FY 2016 (without these changes). The average estimated increase for all IPFs is approximately 2.2 percent. This estimated net increase includes the effects of the 2.8 percent market basket update reduced by the productivity adjustment of 0.3 percentage point, as required by section 1886(s)(2)(A)(i) of the Act and further reduced by the “other adjustment” of 0.2 percentage point, as required by sections 1886(s)(2)(A)(ii) and 1886(s)(3)(D) of the Act. It also includes the overall estimated 0.1 percent decrease in estimated IPF outlier payments as a percent of total payments from the update to the outlier fixed dollar loss threshold amount.
IPF payments are estimated to increase by 2.3 percent in urban areas and 1.6 percent in rural areas. Overall, IPFs are estimated to experience a net increase in payments as a result of the updates in this notice. The largest payment increase is estimated at 3.0 percent for IPFs in the Pacific region.
Under the IPF PPS, IPFs will receive payment based on the average resources consumed by patients for each day. We do not expect changes in the quality of care or access to services for Medicare beneficiaries under the FY 2017 IPF PPS, but we continue to expect that paying prospectively for IPF services will enhance the efficiency of the Medicare program.
The statute does not specify an update strategy for the IPF PPS and is broadly written to give the Secretary discretion in establishing an update methodology. Therefore, we are updating the IPF PPS using the methodology published in the November 2004 IPF PPS final rule; applying the FY 2017 2012-based IPF PPS market basket update of 2.8 percent, reduced by the statutorily required multifactor productivity adjustment of 0.3 percentage point and the other adjustment of 0.2 percentage point, along with the wage index budget neutrality adjustment to update the payment rates; finalizing a FY 2017 IPF PPS wage index which is fully based upon the OMB CBSA designations which were adopted in the FY 2016 IPF PPS wage index; and continuing with the second year of the 3-year phase-out of the rural adjustment for IPF providers which changed from rural to urban status in FY 2016 as a result of adopting the updated OMB CBSA delineations used in the FY 2016 IPF PPS transitional wage index.
As required by OMB Circular A-4 (available at
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
(1) Oncology Treatment
Add the following codes to the Oncology Treatment code list:
Delete the following code from the Oncology Treatment code list:
The following codes from the Oncology Treatment code list have long description changes:
2) Oncology Treatment Procedure
Add the following code to the Oncology Treatment procedure code list:
3) Infectious Disease
Add the following code to the Infectious Disease code list:
4) Artificial Openings Digestive and Urinary
Add the following codes to the Artificial Openings, Digestive and Urinary code list:
The following codes from the Artificial Openings Digestive and Urinary code list have long description changes:
Tables showing the complete listing of ICD-10-CM/PCS codes underlying the IPF PPS comorbidity adjustment and the IPF PPS Code First adjustment, and associated with the IPF PPS ECT per treatment payment, are available online at:
Proposed Projects:
In compliance with the requirements of the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chap 35) Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW., Washington, DC 20201. Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Administration for Community Living, Administration on Intellectual and Developmental Disabilities, HHS.
Notice.
The Administration on Intellectual and Developmental Disabilities (AIDD), Administration for Community Living (ACL) is announcing an opportunity to comment on the proposed collection of information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written comments on the collection of information by August 31, 2016.
Submit electronic comments on the collection of information to: Submit written comments on the collection of information to by fax 202.395.5806 or by email to
Allison Cruz (
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration on Community Living is soliciting public comment on the specific aspects of the information collection described above. The Department specifically requests comments on: (a) Whether the proposed Collection of information is necessary for the proper performance of the function of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden information to be collected; and (e) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection technique comments and or other forms of information technology. Consideration will be given to comments and suggestions submitted within 30 days of this publication. The proposed data collection tools can be found at the ACL Web site
Respondents: 56 State Developmental Disabilities Councils.
Estimated Total Annual Burden Hours: 20,552.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by August 31, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20851,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) does not require retailers to implement retailer training programs. However, the statute does provide for lesser civil money penalties for violations of access, advertising, and promotion restrictions of regulations issued under section 906(d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387f(d)), as amended by the Tobacco Control Act, for retailers who have implemented a training program that complies with standards developed by FDA for such programs. FDA intends to issue regulations establishing standards for approved retailer training programs. In the interim, the guidance is intended to assist tobacco retailers in implementing effective training programs for employees.
The guidance discusses the elements that should be covered in a training program, such as: (1) Federal laws restricting the access to, and the advertising and promotion of, cigarettes and smokeless tobacco products; (2) the health and economic effects of tobacco use, especially when the tobacco use begins at a young age; (3) written company policies against sales to minors; (4) identification of the tobacco products sold in the retail establishment that are subject to the Federal laws prohibiting their sale to persons under the age of 18; (5) age verification methods; (6) practical guidelines for refusing sales; and (7) testing to ensure that employees have the required knowledge. The guidance recommends that retailers require current and new employees to take a written test prior to selling tobacco products and that refresher training be provided at least annually and more frequently as needed. The guidance recommends that retailers maintain certain written records documenting that all individual employees have been trained and that retailers retain these records for 4 years in order to be able to provide evidence of a training program during the 48-month time period covered by the civil money penalty schedules in section 103(q)(2)(A) of the Tobacco Control Act.
The guidance also recommends that retailers implement certain hiring and management practices as part of an effective retailer training program. The guidance suggests that applicants and current employees be notified both verbally and in writing of the importance of complying with laws prohibiting the sales of tobacco products to persons under the age of 18 and that they should be required to sign an acknowledgement stating that they have read and understand the information. In addition, FDA recommends that retailers implement an internal compliance check program and document the procedures and corrective actions for the program.
FDA's estimate of the number of respondents in tables 1 and 2 is based on data reported to the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA). According to the fiscal year 2009 Annual Synar Report, there are 372,677 total retail tobacco outlets in the 50 States, District of Columbia, and 8 U.S. territories that are accessible to youth (meaning that there is no State law restricting access to these outlets to individuals older than age 18). Inflating this number by about 10 percent to account for outlets in States that sell tobacco but are, by law, inaccessible to minors, results in an estimated total number of tobacco outlets of 410,000. We assume that 75 percent of tobacco retailers already have some sort of training program for age and identification verification. We expect that some of those retailer training programs already meet the elements in the guidance, some retailers would update their training program to meet the elements in the guidance, and other retailers would develop a training program for the first time. Thus, we estimate that two-thirds of tobacco retailers would develop a training program that meets the elements in the guidance (66 percent of 410,000 = 270,600).
The Tobacco Control Act gave FDA the authority to issue a regulation deeming all other products that meet the statutory definition of a tobacco product as subject to FDA regulatory authority (“deeming”) (section 901(b) of the Federal Food, Drug, and Cosmetic Act (FD&C Act). On May 10, 2016, FDA issued the deeming rule, extending FDA's tobacco product authority to other tobacco products (81 FR 28973). In the
The two comments both identified additional training options that could be used to provide further educational opportunities for tobacco retailers. These comments primarily relate more to the content and method of a retailer training program rather than the proposed collection of information associated with the current guidance document. At the same time, one comment was supportive of the information collection activities associated with the current guidance document. FDA is supportive of training programs that assist retailers in complying with the tobacco control laws.
FDA estimates the burden of this collection of information as follows:
FDA estimates that the total burden for this collection will be 7,515,660 hours (6,847,500 reporting + 668,160 recordkeeping).
1. Burke, Don, “Trends & Insights in the Nicotine Delivery Category.” Management Science Associates, Inc. Presentation at NATO Show, April 23, 2015. Accessed June 2015.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by August 31, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown Street, North Bethesda, MD 20852,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
On November 27, 2013, the President signed the Drug Quality and Security Act (DQSA) into law (Pub. L. 113-54).
In the
Each facility that elects to register as an outsourcing facility must report the following information to FDA for each product that it compounds:
• The active ingredient and strength of active ingredient per unit;
• the source of the active ingredient (bulk or finished drug);
• the National Drug Code (NDC) number of the source drug or bulk active ingredient, if available;
• the dosage form and route of administration;
• the package description;
• the number of individual units produced; and
• the NDC number of the final product, if assigned.
Compounded product information must be submitted to FDA electronically using the Structured Product Labeling (SPL) format and in accordance with section IV of the FDA guidance entitled “Providing Regulatory Submissions in Electronic Format—Drug Establishment Registration and Drug Listing,” available at
In response to the November 24, 2014,
One comment expressed concern about being unable to submit a product report within the required 30-day reporting period because of the extensive amount of time to create a product report, especially for facilities with large product portfolios. The comment suggested that FDA did not recognize that each outsourcing facility will have numerous SPL entries into the electronic reporting system to make up a product report.
In consideration of the comment, we have increased our burden estimate as reflected in the tables 1 and 2. We have also explained in the guidance that there are ways to simplify the submission of product reporting information and reduce the number of responses and total burden of submitting product reporting information.
Initially, the creation of product report submissions can be time consuming, but submissions can be saved, updated, and resubmitted for subsequent reporting periods instead of creating a new submission each time. In addition, multiple strengths of the same drug, package sizes, and source NDC numbers can be consolidated into a single product submission in SPL.
Based on current data for outsourcing facilities, we estimate approximately 55 outsourcing facilities will submit to FDA an initial report identifying all drugs compounded in the facility in the previous 6 months. By our calculation, each product's SPL submission is considered a separate response and therefore each facility's product report will include multiple responses. Taking into account that a particular product that is compounded into different strengths from different sources of active ingredient can be reported in a single SPL response, we estimate that the number of products reported per facility will average 220 products per facility. This estimate is based on current data in product reports.
Concerning the comment that each outsourcing facility will have numerous SPL entries, again we have revised our previous estimate to account for the fact that each product report will consist of multiple SPL responses per facility. We estimate that preparing and submitting this information electronically could take up to approximately 2 hours for each initial SPL response.
We also estimate that approximately 55 outsourcing facilities will submit to FDA a report twice each year identifying all drugs compounded at the facility in the previous 6 months. As described previously, we estimate on average 220 SPL responses per facility. We estimate that preparing and submitting this information electronically will take approximately one half hour per response. At the same time, we have reduced the burden for semi-annual product submissions reasoning that outsourcing facilities can save each SPL response once initially created and submitted. For subsequent reports, an outsourcing facility may resubmit the same file(s) after changing only the following data elements to appropriate values for the reporting period (along with other data as appropriate): RootID and version number (both SPL metadata); effective date (to identify the reporting period); and the number of units produced. Furthermore, if a product was not compounded during a particular reporting period, no SPL response needs be sent for that product during that reporting period.
Finally, we expect to receive no more than one waiver request from the electronic submission process for initial product reports and semi-annual reports, and estimate each request will take 1 hour to prepare and submit to FDA.
Therefore, we estimate the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2017 fee rates for certain domestic and foreign facility reinspections, failures to comply with a recall order, and importer reinspections that are authorized by the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the FDA Food Safety Modernization Act (FSMA). These fees are effective on October 1, 2016, and will remain in effect through September 30, 2017.
Jason Lewis, Office of Resource Management, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rm. 2046, Rockville, MD 20857, 301-796-5957, email:
Section 107 of FSMA (Pub. L. 111-353) added section 743 to the FD&C Act (21 U.S.C. 379j-31) to provide FDA with the authority to assess and collect fees from, in part: (1) The responsible party for each domestic facility and the U.S. agent for each foreign facility subject to a reinspection, to cover reinspection-related costs; (2) the responsible party for a domestic facility and an importer who does not comply with a recall order, to cover food
In addition, as stated in the September 2011 Guidance, FDA is in the process of considering various issues associated with the assessment and collection of importer reinspection fees. The fee rates set forth in this notice will be used to determine any importer reinspection fees assessed in FY 2017.
FDA is required to estimate 100 percent of its costs for each activity in order to establish fee rates for FY 2017.
In general, the starting point for estimating the full cost per direct work hour is to estimate the cost of a full-time equivalent (FTE) or paid staff year for the relevant activity. This is done by dividing the total funds allocated to the elements of FDA primarily responsible for carrying out the activities for which fees are being collected by the total FTEs allocated to those activities. For the purposes of the reinspection and recall order fees authorized by section 743 of the FD&C Act (the fees that are the subject of this notice), primary responsibility for the activities for which fees will be collected rests with FDA's Office of Regulatory Affairs (ORA). ORA carries out inspections and other field-based activities on behalf of FDA's product centers, including the Center for Food Safety and Applied Nutrition (CFSAN) and the Center for Veterinary Medicine (CVM). Thus, as the starting point for estimating the full cost per direct work hour, FDA will use the total funds allocated to ORA for CFSAN and CVM related field activities. The most recent FY with available data was FY 2015. In that year, FDA obligated a total of $666,722,326 for ORA in carrying out the CFSAN and CVM related field activities work, excluding the cost of inspection travel. In that same year, the number of ORA staff primarily conducting the CFSAN and CVM related field activities was 3,022 FTEs or paid staff years. Dividing $666,722,326 by 3,022 FTEs results in an average cost of $220,623 per paid staff year, excluding travel costs.
Not all of the FTEs required to support the activities for which fees will be collected are conducting direct work such as inspecting or reinspecting facilities, examining imports, or monitoring recalls. Data collected over a number of years and used consistently in other FDA user fee programs (
To calculate an hourly rate, FDA must divide the average fully supported cost of $315,491 per FTE by the average number of supported direct FDA work hours. See table 1.
Dividing the average fully supported cost of an FTE in FY 2015 ($315,491) by the total number of supported direct work hours available for assignment (1,600) results in an average fully supported cost of $197 (rounded to the nearest dollar), excluding inspection travel costs, per supported direct work hour in FY 2015—the last FY for which data are available.
To adjust the hourly rate for FY 2017, FDA must estimate the cost of inflation in each year for FY 2016 and FY 2017. FDA uses the method prescribed for estimating inflationary costs under the PDUFA provisions of the FD&C Act (section 736(c)(1) (21 U.S.C. 379h(c)(1)), the statutory method for inflation adjustment in the FD&C Act that FDA has used consistently. FDA previously determined the FY 2016 inflation rate to be 2.0266; this rate was published in the FY 2016 PDUFA user fee rates notice in the
Increasing the FY 2015 average fully supported cost per supported direct FDA work hour of $197 (excluding inspection travel costs) by 3.6047 percent yields an inflationary adjusted estimated cost of $204 per a supported direct work hour in FY 2017, excluding inspection travel costs. FDA will use this base unit fee in determining the hourly fee rate for reinspection and recall order fees for FY 2017 prior to including domestic or foreign travel costs as applicable for the activity.
In FY 2015, ORA spent a total of $4,497,078 for domestic regulatory inspection travel costs and General Services Administration Vehicle costs related to FDA's CFSAN and CVM field activities programs. The total ORA domestic travel costs spent is then divided by the 8,987 CFSAN and CVM domestic inspections, which averages a total of $500 per inspection. These inspections average 32.14 hours per inspection. Dividing $500 per inspection by 32.14 hours per inspection results in a total and an additional cost of $16 per hour spent for domestic inspection travel costs in FY 2015. To adjust $16 for inflationary increases in FY 2016 and FY 2017, FDA must multiply it by the same inflation factor mentioned previously in this document (1.036047), which results in an estimated cost of $17 dollars per paid hour in addition to $204 for a total of $221 per paid hour ($204 plus $17) for each direct hour of work requiring domestic inspection travel. FDA will use these rates in charging fees in FY 2017 when domestic travel is required.
In FY 2015, ORA spent a total of $2,521,216 on 269 foreign inspection trips related to FDA's CFSAN and CVM field activities programs, which averaged a total of $9,373 per foreign inspection trip. These trips averaged 3 weeks (or 120 paid hours) per trip. Dividing $9,373 per trip by 120 hours per trip results in a total and an additional cost of $78 per paid hour spent for foreign inspection travel costs in FY 2015. To adjust $78 for inflationary increases in FY 2016 and
The fee will be assessed for a reinspection conducted under section 704 of the FD&C Act (21 U.S.C. 374) to determine whether corrective actions have been implemented and are effective and compliance has been achieved to the Secretary of Health and Human Services' (the Secretary) (and, by delegation, FDA's) satisfaction at a facility that manufactures, processes, packs, or holds food for consumption necessitated as a result of a previous inspection (also conducted under section 704) of this facility, which had a final classification of Official Action Indicated (OAI) conducted by or on behalf of FDA, when FDA determined the non-compliance was materially related to food safety requirements of the FD&C Act. FDA considers such non-compliance to include non-compliance with a statutory or regulatory requirement under section 402 of the FD&C Act (21 U.S.C. 342) and section 403(w) of the FD&C Act (21 U.S.C. 343(w)). However, FDA does not consider non-compliance that is materially related to a food safety requirement to include circumstances where the non-compliance is of a technical nature and not food safety related (
Under section 743(a)(1)(A) of the FD&C Act, FDA is directed to assess and collect fees from “the responsible party for each domestic facility (as defined in section 415(b) (21 U.S.C. 350d(b))) and the United States agent for each foreign facility subject to a reinspection” to cover reinspection-related costs.
Section 743(a)(2)(A)(i) of the FD&C Act defines the term “reinspection” with respect to domestic facilities as “1 or more inspections conducted under section 704 subsequent to an inspection conducted under such provision which identified non-compliance materially related to a food safety requirement of th[e] Act, specifically to determine whether compliance has been achieved to the Secretary's satisfaction.”
The FD&C Act does not contain a definition of “reinspection” specific to foreign facilities. In order to give meaning to the language in section 743(a)(1)(A) of the FD&C Act to collect fees from the U.S. agent of a foreign facility subject to a reinspection, the Agency is using the following definition of “reinspection” for purposes of assessing and collecting fees under section 743(a)(1)(A), with respect to a foreign facility, “1 or more inspections conducted by officers or employees duly designated by the Secretary subsequent to such an inspection which identified non-compliance materially related to a food safety requirement of the FD&C Act, specifically to determine whether compliance has been achieved to the Secretary's (and, by delegation, FDA's) satisfaction.”
This definition allows FDA to fulfill the mandate to assess and collect fees from the U.S. agent of a foreign facility in the event that an inspection reveals non-compliance materially related to a food safety requirement of the FD&C Act, causing one or more subsequent inspections to determine whether compliance has been achieved to the Secretary's (and, by delegation, FDA's) satisfaction. By requiring the initial inspection to be conducted by officers or employees duly designated by the Secretary, the definition ensures that a foreign facility would be subject to fees only in the event that FDA, or an entity designated to act on its behalf, has made the requisite identification at an initial inspection of non-compliance materially related to a food safety requirement of the FD&C Act. The definition of “reinspection-related costs” in section 743(a)(2)(B) of the FD&C Act relates to both a domestic facility reinspection and a foreign facility reinspection, as described in section 743(a)(1)(A).
The FD&C Act states that this fee is to be paid by the responsible party for each domestic facility (as defined in section 415(b) of the FD&C Act) and by the U.S. agent for each foreign facility (section 743(a)(1)(A) of the FD&C Act). This is the party to whom FDA will send the invoice for any fees that are assessed under this section.
The fee is based on the number of direct hours spent on such reinspections, including time spent conducting the physical surveillance and/or compliance reinspection at the facility, or whatever components of such an inspection are deemed necessary, making preparations and arrangements for the reinspection, traveling to and from the facility, preparing any reports, analyzing any samples or examining any labels if required, and performing other activities as part of the OAI reinspection until the facility is again determined to be in compliance. The direct hours spent on each such reinspection will be billed at the appropriate hourly rate shown in table 2 of this document.
The fee will be assessed for not complying with a recall order under section 423(d) (21 U.S.C. 350l(d)) or section 412(f) of the FD&C Act (21 U.S.C. 350a(f)) to cover food recall activities associated with such order performed by the Secretary (and by delegation, FDA) (section 743(a)(1)(B) of the FD&C Act). Non-compliance may include the following: (1) Not initiating a recall as ordered by FDA; (2) not conducting the recall in the manner specified by FDA in the recall order; or (3) not providing FDA with requested information regarding the recall, as ordered by FDA.
Section 743(a)(1)(B) of the FD&C Act states that the fee is to be paid by the responsible party for a domestic facility (as defined in section 415(b) of the FD&C Act) and an importer who does not comply with a recall order under section 423 or under section 412(f) of the FD&C Act. In other words, the party
The fee is based on the number of direct hours spent on taking action in response to the firm's failure to comply with a recall order. Types of activities could include conducting recall audit checks, reviewing periodic status reports, analyzing the status reports and the results of the audit checks, conducting inspections, traveling to and from locations, and monitoring product disposition. The direct hours spent on each such recall will be billed at the appropriate hourly rate shown in table 2 of this document.
An invoice will be sent to the responsible party for paying the fee after FDA completes the work on which the invoice is based. Payment must be made within 90 days of the invoice date in U.S. currency by check, bank draft, or U.S. postal money order payable to the order of the Food and Drug Administration. Detailed payment information will be included with the invoice when it is issued.
Under section 743(e)(2) of the FD&C Act, any fee that is not paid within 30 days after it is due shall be treated as a claim of the U.S. Government subject to provisions of subchapter II of chapter 37 of title 31, United States Code.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2017 rates for the establishment and re-inspection fees related to entities that compound human drugs and elect to register as outsourcing facilities under the Federal Food, Drug, and Cosmetic Act (the FD&C Act). The FD&C Act authorizes FDA to assess and collect an annual establishment fee from outsourcing facilities, as well as a re-inspection fee for each re-inspection of an outsourcing facility. This document establishes the FY 2017 rates for the small business establishment fee ($5,279), the non-small business establishment fee ($16,852), and the re-inspection fee ($15,837) for outsourcing facilities; provides information on how the fees for FY 2017 were determined; and describes the payment procedures outsourcing facilities should follow. These fee rates are effective October 1, 2016, and will remain in effect through September 30, 2017.
For more information on human drug compounding and outsourcing facility fees, visit FDA's Web site at:
On November 27, 2013, President Obama signed the Drug Quality and Security Act (DQSA), legislation that contains important provisions relating to the oversight of compounding of human drugs. Title I of this law, the Compounding Quality Act, created a new section 503B in the FD&C Act (21 U.S.C. 353b). Under section 503B of the FD&C Act, a human drug compounder can become an “outsourcing facility.”
Outsourcing facilities, as defined in section 503B(d)(4) of the FD&C Act, are facilities that meet all of the conditions described in section 503B(a), including registering with FDA as an outsourcing facility and paying an annual establishment fee. If the conditions of section 503B are met, a drug compounded by or under the direct supervision of a licensed pharmacist in an outsourcing facility is exempt from three sections of the FD&C Act: (1) Section 502(f)(1) (21 U.S.C. 352(f)(1)) concerning the labeling of drugs with adequate directions for use; (2) section 505 (21 U.S.C. 355) concerning the approval of human drug products under new drug applications (NDAs) or abbreviated new drug applications (ANDAs); and (3) section 582 (21 U.S.C. 360eee-1) concerning drug supply chain security requirements. Drugs compounded in outsourcing facilities are not exempt from the requirements of section 501(a)(2)(B) of the FD&C Act (21 U.S.C. 351(a)(2)(B)) concerning current good manufacturing practice requirements for drugs.
Section 744K of the FD&C Act (21 U.S.C. 379j-62) authorizes FDA to assess and collect the following fees associated with outsourcing facilities: (1) An annual establishment fee from each outsourcing facility and (2) a re-inspection fee from each outsourcing facility subject to a re-inspection (see section 744K(a)(1) of the FD&C Act). Under statutorily defined conditions, a qualified applicant may pay a reduced small business establishment fee (see section 744K(c)(4) of the FD&C Act).
FDA announced in the
Section 744K(c)(2) of the FD&C Act specifies the annual inflation adjustment for outsourcing facility fees. The inflation adjustment has two components: One based on FDA's payroll costs and one based on FDA's non-payroll costs for the first three of the four previous fiscal years. The payroll component of the annual inflation adjustment is calculated by taking the average change in the FDA's per-full time equivalent (FTE) personnel compensation and benefits (PC&B) in the first three of the four previous fiscal years (see section 744K(c)(2)(A)(ii) of the FD&C Act). FDA's total annual spending on PC&B is divided by the total number of FTEs per fiscal year to determine the average PC&B per FTE.
Table 1 summarizes the actual cost and FTE data for the specified fiscal years, and provides the percent change from the previous fiscal year and the average percent change over the first three of the four fiscal years preceding FY 2017. The 3-year average is 1.8759 percent.
Section 744K(c)(2)(A)(ii) of the FD&C Act specifies that this 1.8759 percent should be multiplied by the proportion of PC&B to total costs of an average FDA FTE for the same three fiscal years.
The payroll adjustment is 1.8759 percent multiplied by 47.9108 percent, or 0.8988 percent.
Section 744K(c)(2)(A)(iii) of the FD&C Act specifies that the portion of the inflation adjustment for non-payroll costs for FY 2017 is equal to the average annual percent change in the Consumer Price Index (CPI) for urban consumers (U.S. City Average; Not Seasonally Adjusted; All items; Annual Index) for the first 3 years of the preceding 4 years of available data, multiplied by the proportion of all non-PC&B costs to total costs of an average FDA FTE for the same period.
Table 2 provides the summary data for the percent change in the specified CPI for U.S. cities. These data are published by the Bureau of Labor Statistics and can be found on its Web site:
Section 744K(c)(2)(A)(iii) of the FD&C Act specifies that this 1.0686 percent should be multiplied by the proportion of all non-PC&B costs to total costs of an average FTE for the same three fiscal years. The proportion of all non-PC&B costs to total costs of an average FDA FTE for FYs 2013 to 2015 is 52.0892 percent (100 percent − 47.9108 percent = 52.0892 percent). Therefore, the non-pay adjustment is 1.0686 percent times 52.0892 percent, or 0.5566 percent.
The PC&B component (0.8988 percent) is added to the non-PC&B component (0.5566 percent), for a total inflation adjustment of 1.4554 percent (rounded). Section 744K(c)(2)(A)(i) of the FD&C Act specifies that one is added to that figure, making the inflation adjustment 1.014554.
Section 744K(c)(2)(B) of the FD&C Act provides for this inflation adjustment to be compounded after FY 2015. This factor for FY 2017 (1.4554 percent) is compounded by adding one to it, and then multiplying it by one plus the inflation adjustment factor for FY 2016 (4.0646 percent), as published in the
Section 744K(c)(3) of the FD&C Act specifies that in addition to the inflation adjustment factor, the establishment fee for non-small businesses is to be further adjusted for a small business adjustment factor. Section 744K(c)(3)(B) of the FD&C Act provides that the small business adjustment factor is the adjustment to the establishment fee for non-small businesses that is necessary to achieve total fees equaling the amount that FDA would have collected if no entity qualified for the small business exception in section 744K(c)(4) of the FD&C Act. Additionally, section 744K(c)(5)(A) states that in establishing the small business adjustment factor for a fiscal year, FDA shall provide for the crediting of fees from the previous year to the next year if FDA overestimated the amount of the small business adjustment factor for such previous fiscal year.
Therefore, to calculate the small business adjustment to the establishment fee for non-small businesses for FY 2017, FDA must estimate: (1) The number of outsourcing facilities that will pay the reduced fee for small businesses for FY 2017 and (2) the total fee revenue it would have collected if no entity had qualified for the small business exception (
With respect to (1), FDA estimates that seven entities will qualify for small business exceptions and will pay the reduced fee for FY 2017. With respect to (2), to estimate the total number of entities that will register as outsourcing facilities for FY 2017, FDA used data
If the projected 72 outsourcing facilities paid the full inflation-adjusted fee of $15,837, this would result in total revenue of $1,140,264 in FY 2017 ($15,837 × 72). However, seven of the entities that are expected to register as outsourcing facilities for FY 2017 are projected to qualify for the small business exception and to pay one-third of the full fee ($5,279 × 7), totaling $36,953 instead of paying the full fee ($15,837 × 7), which would total $110,859. This would leave a potential shortfall of $73,906 ($110,859 − $36,953).
Additionally, section 744K(c)(5)(A) of the FD&C Act states that in establishing the small business adjustment factor for a fiscal year, FDA shall provide for the crediting of fees from the previous year to the next year if FDA overestimated the amount of the small business adjustment factor for such previous fiscal year. FDA has determined that it is appropriate to credit excess fees collected from the last completed fiscal year, due to the inability to conclusively determine the amount of excess fees from the fiscal year that is in progress at the time this calculation is made. This crediting is done by comparing the small business adjustment factor for the last completed fiscal year, FY 2015 ($1,134), to what would have been the small business adjustment factor for FY 2015 ($324) if FDA had estimated perfectly.
The calculation for what the small business adjustment would have been if FDA had estimated perfectly begins by determining the total target collections (15,000 × [inflation adjustment factor] × [number of registrants]). For the most recent complete fiscal year, FY 2015, this was $995,020 ($15,308 × 65). The actual FY 2015 revenue from the 65 total registrants (
The difference between the small business adjustment factor used in FY 2015 and the small business adjustment factor that would have been used had FDA estimated perfectly, is $810 ($1,134 − $324). The $810 is then multiplied by the number of actual registrants who paid the standard fee for FY 2015 (63), which provides us a total excess collection of $51,025 (rounded down to the nearest $5) in FY 2015.
When calculating the small business adjustment factor for FY 2016, FDA estimated the excess collection for FY 2015 because that fiscal year was not complete.
Therefore, to calculate the small business adjustment factor for FY 2017, FDA subtracts $7,931 from the projected shortfall of $73,906 for FY 2017 to arrive at the numerator for the small business adjustment amount, which equals $65,975. This number divided by 65 (the number of expected non-small businesses for FY 2017) is the small business adjustment amount for FY 2017, which is $1,015.
The amount of the establishment fee for a qualified small business fee is equal to $15,000 multiplied by the inflation adjustment factor for that fiscal year, divided by three (see section 744K(c)(4)(A) and (c)(1)(A) of the FD&C Act). The inflation adjustment factor for FY 2017 is 1.055792. See section II.A.1 for the methodology used to calculate the FY 2017 inflation adjustment factor. Therefore, the establishment fee for a qualified small business for FY 2017 is one third of $15,837, which equals $5,279 (rounded to the nearest dollar).
Under section 744K(c) of the FD&C Act, the amount of the establishment fee for a non-small business is equal to $15,000 multiplied by the inflation adjustment factor for that fiscal year, plus the small business adjustment factor for that fiscal year, and plus or minus an adjustment factor to account for over- or under-collections due to the small business adjustment factor in the prior year. The inflation adjustment factor for FY 2017 is 1.055792. The small business adjustment amount for FY 2017 is $1,015. See section II.A.2 for the methodology used to calculate the small business adjustment factor for FY 2017. Therefore, the establishment fee for a non-small business for FY 2017 is $15,000 multiplied by 1.055792 plus $1,015, which equals $16,852 (rounded to the nearest dollar).
Section 744K(c)(1)(B) of the FD&C Act provides that the amount of the FY 2017 re-inspection fee is equal to $15,000, multiplied by the inflation adjustment factor for that fiscal year. The inflation adjustment factor for FY 2017 is 1.055792. Therefore, the re-inspection fee for FY 2017 is $15,000 multiplied by 1.055792, which equals $15,837 (rounded to the nearest dollar). There is no reduction in this fee for small businesses.
Once an entity submits registration information and FDA has determined that the information is complete, the entity will incur the annual establishment fee. FDA will send an invoice to the entity, via email to the email address indicated in the
Outsourcing facilities that registered in FY 2016 and wish to maintain their status as an outsourcing facility in FY 2017 must register during the annual registration period that lasts from October 1, 2016, to December 31, 2016. Failure to register and complete payment by December 31, 2016, will result in a loss of status as an outsourcing facility on January 1, 2017. Entities should submit their registration information no later than December 10, 2016, to allow enough time for review of the registration information, invoicing, and payment of fees before the end of the registration period.
FDA will issue invoices for each re-inspection after the conclusion of the re-inspection, via email to the email address indicated in the registration file or via regular mail if email is not an option. Invoices must be paid within 30 days.
1. The preferred payment method is online using electronic check (Automated Clearing House (ACH) also known as eCheck) or credit card (Discover, VISA, MasterCard, American Express). Secure electronic payments can be submitted using the User Fees Payment Portal at
2.
3.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting that any industry organizations interested in participating in the selection of a nonvoting member to represent the interests of tobacco growers to serve on the Tobacco Products Scientific Advisory Committee for the Center for Tobacco Products (CTP), notify FDA in writing. FDA is also requesting nominations for a nonvoting member to represent the interests of tobacco growers to serve on the Tobacco Products Scientific Advisory Committee, and an alternate to this representative. A nominee may either be self-nominated or nominated by an organization to serve as a nonvoting industry representative. Nominations will be accepted for current vacancies effective with this notice.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent the interests of tobacco growers must send a letter stating that interest to the FDA by
All statements of interest from industry organizations interested in participating in the selection process should be sent to Caryn Cohen (see
Caryn Cohen, Office of Science, Center for Tobacco Products, Food and Drug Administration, Center for Tobacco Products, Document Control Center, Bldg. 71, Rm. G335, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 1-877-287-1373 (choose Option 5), email:
The Agency intends to add nonvoting industry representatives to the following advisory committee:
The Tobacco Products Scientific Advisory Committee (the Committee) advises the Commissioner of Food and Drugs (the Commissioner) or designee in discharging responsibilities related to the regulation of tobacco products. The Committee reviews and evaluates safety, dependence, and health issues relating to tobacco products and provides appropriate advice, information, and recommendations to the Commissioner.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent the interests of tobacco growers should send a letter stating that interest to the FDA contact (see
Individuals may self-nominate and/or an organization may nominate one or more individuals to serve as a nonvoting member to represent the interests of tobacco growers. Contact information, current curriculum vitae, and the name of the committee of interest should be sent to the FDA Advisory Committee Membership Nomination Portal (see
FDA seeks to include the views of women and men, members of all racial and ethnic groups, and individuals with and without disabilities on its advisory committees and, therefore encourages nominations of appropriately qualified candidates from these groups.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to advisory committees.
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, 42 U.S.C. 300u-2, 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 non-federal public and private sector entities to co-sponsor the OWH Anniversary Celebration event in the Washington, DC area in late September, 2016.
Representatives of eligible organizations should submit expressions of interest no later than 6:00 p.m. EST on August 16, 2016.
Expressions of interest should be directed electronically to
Questions may be directed to Valerie Borden, Office on Women's Health, 200 Independence Avenue SW, Room 730F.3, Washington, DC 20201. Email:
The OWH was established in 1991 to improve the health of American women by advancing and coordinating a comprehensive women's health agenda throughout the Department of Health and Human Service (HHS). The OWH provides national leadership and coordination to improve the health of women and girls through policy, education, and model programs. The office fulfills its mission by advancing policy and issuing competitive contracts and grants to an array of community, academic, and other organizations at the national and community levels. This year marks the office's 25th anniversary.
The event will feature a panel discussion focusing on the future of women's health. It will also feature an award ceremony for organizations and partners who helped improve the health and well-being of women and girls in the U.S. over the past 25 years.
The co-sponsor will assist with the development of the substantive content of the event and other event planning, coordination, and logistics in partnership with the OWH staff. In addition the co-sponsor will be responsible for the event venue and any food and beverages.
To be eligible, a potential co-sponsor shall:
1. Have a demonstrated understanding, commitment, and experience in improving the health of women and girls;
2. Participate substantively in the co-sponsored activity, not just provide funding or logistical support; and
3. Have an organizational or corporate mission that is consistent with OWH and HHS.
Each co-sponsorship proposal shall contain a description of: (1) The entity or organization's background and history, (2) its ability to satisfy the co-sponsorship criteria detailed above, and (3) its proposed involvement in the co-sponsored activity. The selected co-sponsoring organization(s) shall furnish the necessary personnel, materials, services, and facilities to administer its responsibility for the event. These duties will be outlined in a co-sponsorship agreement with OWH that will set forth the details of the co-sponsored activity, including the requirements that any fees collected by the co-sponsor shall be limited to the amount necessary to cover the co-sponsor's related meeting expenses.
(1) Qualifications and capability to fulfill co-sponsorship responsibilities;
(2) Creativity related to enhancing the event;
(3) Potential for reaching and generating attendees from among key stakeholders, including federal, state and local policymakers, other health officials, non-profits interested in women's health, and underserved/special populations;
(4) Experience with events;
(5) Past or current work specific to women's health;
(6) Personnel names, professional qualifications, and specific expertise with event planning;
(7) Availability and description of facilities to support the event, including office space, information technology, and telecommunication resources; and,
(9) Proposed plan for managing an event with the OWH.
Expressions of interest should outline eligibility in response to the
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the Merchant Marine Personnel Advisory Committee. This Committee advises the Secretary of the Department of Homeland Security on matters related to personnel in the U.S. merchant marine, including but not limited to training, qualifications, certification, documentation, and fitness standards.
Completed applications should reach the Coast Guard on or before September 30, 2016.
Applicants should send a cover letter expressing interest in an appointment to the Merchant Marine Personnel Advisory Committee that also identifies which membership category the applicant is applying under, along with a resume detailing the applicant's experience via one of the following methods:
•
•
•
Davis J. Breyer, Alternate Designated Federal Officer of the Merchant Marine Personnel Advisory Committee; telephone 202-372-1445 or email at
The Merchant Marine Personnel Advisory Committee is a statutory federal advisory committee established in accordance with the provisions of the Federal Advisory Committee Act, (Title 5 U.S.C. Appendix) to advise the Secretary of the Department of Homeland Security on matters relating to personnel in the U.S. merchant marine, including but not limited to training, qualifications, certification, documentation, and fitness standards and other matters as assigned by the Commandant. The Committee shall also review and comment on proposed Coast Guard regulations and policies relating to personnel in the United States merchant marine, including training, qualifications, certification, documentation, and fitness standards; may be given special assignments by the Secretary and may conduct studies, inquiries, workshops, and fact finding in consultation with individuals and groups in the private sector and with State or local governments; and shall advise, consult with, and make recommendations reflecting its independent judgment to the Secretary. The Committee meets not less than twice each year. Its subcommittees and working groups may also meet intercessionally to consider specific tasks as required.
Each Merchant Marine Personnel Advisory Committee member serves a term of office of up to three years. Members may serve a maximum of two consecutive terms. All members serve without compensation from the Federal Government; however, upon request, they may receive travel reimbursement and per diem.
We will consider applications for the following six positions that will be vacant on June 1, 2017. To be eligible, you should have experience in one or more of the following areas of expertise:
(1) One position for a licensed engineering officer who is licensed as a chief engineer, any horsepower;
(2) one position for a pilot who represents the viewpoint of Merchant Marine pilots;
(3) one position for a member who represents the viewpoint of shipping companies employed in ship operation management;
(4) one position for an unlicensed seaman who represents the viewpoint of able bodied seamen; and
(5) two positions for members who represent the viewpoint of maritime training institutions other than a state or federal academy.
Registered lobbyists are not eligible to serve on federal advisory committees in an individual capacity. See “Revised Guidance on Appointment of Lobbyists to Federal Advisory Committees, Boards, and Commissions” (79 FR 47482, August 13, 2014). Registered lobbyists are lobbyists as defined in 2 U.S.C. 1602 who are required by 2 U.S.C. 1603 to register with the Secretary of the Senate and Clerk of the House of Representatives.
The Department of Homeland Security does not discriminate in selection of Committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or any other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
If you are interested in applying to become a member of the Committee, send your cover letter and resume to Davis J. Breyer, Alternate Designated Federal Officer of the Merchant Marine Personnel Advisory Committee according to the instructions in the
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of the Syrian Arab Republic (Syria) for Temporary Protected Status (TPS) for 18 months, from October 1, 2016 through March 31, 2018, and redesignating Syria for TPS for 18 months, effective October 1, 2016 through March 31, 2018.
The extension allows TPS beneficiaries to retain TPS through March 31, 2018, so long as they continue to meet the eligibility requirements for TPS. The redesignation
Through this Notice, DHS also sets forth procedures necessary for nationals of Syria (or aliens having no nationality who last habitually resided in Syria) either to: (1) Re-register under the extension if they already have TPS and to apply for renewal of their Employment Authorization Documents (EADs) with U.S. Citizenship and Immigration Services (USCIS); or, (2) submit an initial registration application under the redesignation and apply for an EAD.
For individuals who have already been granted TPS under the 2012 original Syria designation or under the 2013 or 2015 Syria redesignations, the 60-day re-registration period runs from August 1, 2016 through September 30, 2016. USCIS will issue new EADs with a March 31, 2018 expiration date to eligible Syria TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the timeframes involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on September 30, 2016. Accordingly, through this Notice, DHS automatically extends the validity of EADs issued under the TPS designation of Syria for 6 months, through March 31, 2017, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on Employment Eligibility Verification (Form I-9) and E-Verify processes.
Under the redesignation, individuals who currently do not have TPS (or an initial TPS application pending) may submit an initial application during the 180-day initial registration period that runs from August 1, 2016 through January 30, 2017. In addition to demonstrating continuous residence in the United States since August 1, 2016 and meeting other eligibility criteria, initial applicants for TPS under this redesignation must demonstrate that they have been continuously physically present in the United States since October 1, 2016, the effective date of this redesignation of Syria, before USCIS may grant them TPS.
TPS initial applications that were either filed during the 2013 redesignation or during the 2015 Syria redesignation and remain pending on August 1, 2016 will be treated as initial applications under this 2016 redesignation. Individuals who have a pending initial Syria TPS application will not need to file a new Application for Temporary Protected Status (Form I-821). DHS provides additional instructions in this Notice for individuals whose TPS applications remain pending and who would like to obtain an EAD valid through March 31, 2018.
• For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS TPS Web page at
• You can find specific information about this extension and redesignation of Syria for TPS by selecting “TPS Designated Country: Syria” from the menu on the left side of the TPS Web page. You can also contact Jerry Rigdon, Chief of the Waivers and Temporary Services Branch, Service Center Operations Directorate, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060; or by phone at (202) 272-1533 (this is not a toll-free number). Note: The phone number provided here is solely for questions regarding this TPS Notice. It is not for individual case status inquiries.
• Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
• Further information will also be available at local USCIS offices upon publication of this Notice.
• TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA), or to eligible persons without nationality who last habitually resided in the designated country.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States and may obtain work authorization, so long as they continue to meet the requirements of TPS.
• TPS beneficiaries may also be granted travel authorization as a matter of discretion.
• The granting of TPS does not result in or lead to permanent resident status.
• When the Secretary terminates a country's TPS designation, beneficiaries return to the same immigration status they maintained before TPS, if any (unless that status has since expired or been terminated), or to any other lawfully obtained immigration status they received while registered for TPS.
On March 29, 2012, the Secretary designated Syria for TPS based on
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate U.S. Government (Government) agencies, to designate a foreign state (or part thereof) for TPS if the Secretary finds that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after consultation with appropriate Government agencies, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met.
In addition to extending an existing TPS designation, the Secretary, after consultation with appropriate Government agencies, may redesignate a country (or part thereof) for TPS.
When the Secretary designates or redesignates a country for TPS, he also has the discretion to establish the date from which TPS applicants must demonstrate that they have been “continuously resid[ing]” in the United States.
The Secretary has determined that the “continuous residence” date for applicants for TPS under the redesignation of Syria shall be August 1, 2016. Initial applicants for TPS under this redesignation must also show they have been “continuously physically present” in the United States since October 1, 2016, which is the effective date of the Secretary's redesignation of Syria.
Why is the Secretary extending the TPS designation for Syria and simultaneously redesignating Syria for TPS through March 31, 2018?
Over the past year, DHS and the Department of State (DOS) have continued to review conditions in Syria. Based on this review and after consulting with DOS, the Secretary has determined that an 18-month extension and redesignation is warranted because the ongoing armed conflict and other extraordinary and temporary conditions that prompted the January 5, 2015 redesignation continue to exist. Furthermore, the Secretary has decided the conditions warrant changing the “continuous residence” date so as to provide TPS protection to eligible Syrian nationals who arrived between January 5, 2015 and August 1, 2016. The “continuous physical presence” date must be the effective date of the redesignation, which the Secretary has established as October 1, 2016, so that individuals granted TPS under the redesignation will have TPS for the same 18-month period through March 31, 2018 as TPS beneficiaries re-registering under the extension.
Violent conflict and the deteriorating humanitarian crisis continue to pose significant risk throughout Syria. Hundreds of thousands have been killed as a result of ongoing violence. Concerns for health and safety have led to largescale civilian displacement within Syria and migrations to neighboring countries and Europe. As of May 2016, the U.S. Agency for International Development (USAID) reports that 13.5 million people worldwide are in need of humanitarian assistance as a result of armed conflict in Syria. In May 2016, the United Nations Special Envoy for Syria has estimated that as many as 400,000 individuals have been killed, and 1.5 million injured since the violence began in 2011. According to information from USAID, as of March 2016, the United Nations High Commissioner for Refugees (UNHCR) had registered 4.8 million refugees in neighboring countries, and 6.5 million people were internally displaced Syria.
Syria's lengthy civil conflict has resulted in high levels of food
Water availability in Syria has decreased to less than 50 percent of its pre- civil war levels. United Nations Children's Emergency Fund (UNICEF) reported that in 2015 alone, as many as 5 million people living in cities and communities across the country have suffered the consequences of long and sometimes deliberate interruptions to their water supplies. Additionally, strikes against population centers in the course of military operations has resulted in wide-scale destruction of water supply networks and infrastructure. According to information from USAID, between January and March 2016, 16 million Syrians relied on water assistance from the International Committee of the Red Cross and the Syrian Arab Red Crescent for survival.
Water scarcity as a result of power outages and limited access to fuel has caused numerous health and financial issues for families in Damascus, Aleppo, the southern city of Dera'a, and other areas. According to information from USAID, UNICEF reported in May 2016 that fuel supplies to the Sulaiman Al-Halabi and Bab Alnerab pumping stations were cut off, thus depriving 2 million people access to clean water. Additionally, water prices have dramatically increased, with cities like Aleppo seeing upwards of a 3,000 percent increase in the cost of clean water. Unable to afford the rising cost of limited clean water supplies, families rely on dirty water from unprotected and unregulated groundwater sources. As a result, UNICEF reports increased cases of typhoid, diarrhea, hepatitis, and other diseases in children and other at-risk populations.
Civilian health needs continue to rise as Syria's health system deteriorates. The World Health Organization (WHO) reports that 58 percent of public hospitals were either partially functional or completely destroyed as of September 2015. Syrian medical personnel and facilities have been repeatedly struck in the course of military operations, particularly Syrian government air operations.
In early 2015, the WHO reported that the conflict has significantly impacted the ability for NGOs to deliver medical aid into and throughout Syria. Between 2011 and April 2016, Physicians for Human Rights reports that 738 medical personnel have been killed and 259 medical facilities indiscriminately or deliberately attacked. The organization reports that government forces use “double tap” tactics, attacking a site and then attacking it again once first responders arrive. Physicians for Human Rights documented 122 attacks on medical facilities in 2015, the highest rate of attacks on hospitals since the start of the conflict. The Office of the High Commissioner for Human Rights (OHCHR) reported an increase in miscarriages, birth defects, and infant mortality. NGOs operating near major population centers, such as Aleppo, reported on outbreaks of cholera, typhoid, scabies and tuberculosis among the populations.
As of November 2015, Syria's civil war has caused over $270 billion in damages to the country's infrastructure. An estimated 2.1 million homes, half of the country's hospitals, and over 7,000 schools have been destroyed due to the conflict. Population centers such as Raqqah, Homs, and Aleppo, valued for their strategic positions by the opposition, extremists, and government forces, have become targets of military operations from all sides of the conflict. For example, within the city of Kobane, after 4 months of fighting between Kurdish and Islamic State forces, over 3,200 buildings were damaged. In Aleppo, at least 14,000 structures were damaged or destroyed, mostly by government airstrikes, with an additional unknown number of buildings destroyed as a result of front line conflict.
The recruitment and use of child soldiers has become “commonplace” in the Syrian armed conflict according to a 2015 United Nations report. Forced conscription has affected the Syrian population more broadly as the conflict persists into its 6th year. While mandatory military service is a longstanding practice in Syria, the government strengthened its enforcement measures in 2014 and 2015. High rates of draft-dodging, desertions, and defections have left the Syrian military lacking sufficient manpower. In response, the Assad regime has launched large-scale arrests of military-age men through raids and checkpoints. For example, over the course of a 4-day period in October 2014, more than 2,600 men were detained for service by government forces in the cities of Hama and Homs. Once detained, conscripts usually receive minimal training, and are often deployed to a frontline position within days of their arrest. Furthermore, conscripts have reported being held beyond the normal term of 18 months and forced to extend through multiple tours of duty.
Daily bombings of homes, marketplaces, schools, hospitals, and places of worship have become commonplace for Syrian civilians living in major cities. The use of barrel bombs by the Assad regime is an ongoing occurrence in major population centers. Human Rights Watch reports that the Syrian military has dropped dozens of barrel bombs a day on opposition-held neighborhoods in Aleppo, Idlib, Dara'a and elsewhere. Amnesty International reports that relentless aerial bombardment and shelling by Syrian government forces is magnifying the suffering of civilians trapped under siege and facing an escalating humanitarian crisis in the Eastern Ghouta region. Between January and June 2015, the report indicates, Syrian government forces carried out over 60 airstrikes that resulted in over 500 civilian deaths.
As of May 2016, nearly 11.3 million Syrians had been displaced from their homes since the beginning of the Syrian conflict, with over 1.2 million estimated to have been displaced in 2015 alone. According to the U.N. Office for the Coordination of Humanitarian Affairs, nearly 50 percent of displaced persons are children. Furthermore, an estimated 4.6 million Syrians live in over 127 “hard-to-reach” and 18 “besieged” locations within Syria, and are unlikely to receive humanitarian assistance. By May 2016, the United Nations and ground partners were only able to reach 11.7 percent and 64.9 percent of people in these locations, respectively. By the end of 2014, Syrians represented 43 percent of all internally displaced
Based upon this review and after consultation with appropriate Government agencies, the Secretary finds that:
• The conditions that prompted the January 5, 2015 redesignation of Syria for TPS continue to be met.
• There continues to be ongoing armed conflict in Syria and, due to such conflict, requiring the return of Syrian nationals to Syria would pose a serious threat to their personal safety.
• There continue to be extraordinary and temporary conditions in Syria that prevent Syrian nationals from returning to Syria in safety.
• It is not contrary to the national interest of the United States to permit Syrian nationals (and persons who have no nationality who last habitually resided in Syria) who meet the eligibility requirements of TPS to remain in the United States temporarily.
• The designation of Syria for TPS should be extended for an additional 18-month period from October 1, 2016 through March 31, 2018.
• Based on current country conditions, Syria should be simultaneously redesignated for TPS effective October 1, 2016 through March 31, 2018.
• TPS applicants must demonstrate that they have continuously resided in the United States since August 1, 2016.
• The date by which TPS applicants must demonstrate that they have been continuously physically present in the United States is October 1, 2016, the effective date of the redesignation of Syria for TPS.
• There are approximately 5,800 current Syrian TPS beneficiaries who are expected to apply for re-registration and may be eligible to retain their TPS under the extension.
• It is estimated that an additional 2,500 individuals may file initial applications for TPS under the redesignation of Syria.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that the conditions that prompted the redesignation of Syria for TPS in 2015 not only continue to be met, but have significantly deteriorated.
If you filed a TPS application during the Syria TPS registration periods that ran from January 5, 2015 through March 6, 2015, and that application was approved prior to August 1, 2016, then you need to file a re-registration application under the extension if you wish to maintain TPS benefits through March 31, 2018. You must use the Application for Temporary Protected Status (Form I-821) to re-register for TPS. The 60-day open reregistration period will run from August 1, 2016 through September 30, 2016.
If your TPS application is still pending on August 1, 2016, then you do
If you are not a Syria TPS beneficiary or do not have a pending TPS application with USCIS, you may submit your TPS application during the 180-day initial registration period that will run from August 1, 2016 through January 30, 2017.
To register or re-register for TPS for Syria, an applicant must submit each of the following two applications:
1. Application for Temporary Protected Status (Form I-821).
• If you are filing an initial application, you must pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are filing an application for re-registration, you do not need to pay the fee for the Application for Temporary Protected Status (Form I-821).
2. Application for Employment Authorization (Form I-765).
• If you are applying for initial registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you are age 14 through 65. No fee for the Application for Employment Authorization (Form I-765) is required if you are under the age of 14 or are 66 and older and applying for initial registration.
• If you are applying for re-registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765), regardless of your age.
• If you are not requesting an EAD, regardless of whether you are applying for initial registration or re-registration, you do not pay the fee for the Application for Employment Authorization (Form I-765).
You must submit both completed application forms together. If you are unable to pay for the application and/or biometric services fee, you may apply for a fee waiver by completing a Request for Fee Waiver (Form I-912) or submitting a personal letter requesting a fee waiver, and by providing satisfactory supporting documentation. For more information on the application forms and fees for TPS, please visit the USCIS TPS Web page at
Biometrics (such as fingerprints) are required for all applicants 14 years of age or older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may apply for a fee waiver by completing a Request for Fee Waiver (Form I-912) or by submitting a personal letter requesting a fee waiver, and providing satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS Web site at
If you request a fee waiver when filing your initial TPS application package and your request is denied, you may re-file your application packet before the initial filing deadline of January 30, 2017. If you submit your application with a fee waiver request before that deadline, but you receive a fee waiver denial and there are fewer than 45 days before the filing deadline (or the deadline has passed), you may still re-file your application within the 45-day period after the date on the USCIS fee waiver denial notice. Your application will not be rejected even if the filing deadline has passed, provided it is mailed within those 45 days and all other required information for the application is included. Note: If you wish, you may also wait to request an EAD and pay the Application for Employment Authorization (Form I-765) fee after USCIS grants you TPS, if you are found eligible. If you choose to do this, you would file the Application for Temporary Protected Status (Form I-821) with the fee and the Application for Employment Authorization (Form I-765) without fee and without requesting an EAD.
USCIS urges all re-registering applicants to file as soon as possible within the 60-day re-registration period so that USCIS can process the applications and issue EADs promptly. Filing early will also allow those applicants who may receive denials of their fee waiver requests to have time to re-file their applications
Mail your application for TPS to the proper address in Table 2.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA), and you wish to request an EAD, or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate address in Table 2. When submitting a re-registration application and/or requesting an EAD based on an IJ/BIA grant of TPS, please include a copy of the IJ or BIA order granting you TPS with your application. This will aid in the verification of your grant of TPS and processing of your application, as USCIS may not have received records of your grant of TPS by either the IJ or the BIA.
You cannot electronically file your application when re-registering or submitting an initial registration for Syria TPS. Please mail your application to the mailing address listed in Table 2.
The filing instructions on the Application for Temporary Protected Status (Form I-821) list all the documents needed to establish basic eligibility for TPS. You may also find information on the acceptable documentation and other requirements for applying or registering for TPS on the USCIS Web site at
If one or more of the questions listed in Part 4, Question 2 of the Application for Temporary Protected Status (Form I-821) applies to you, then you must submit an explanation on a separate sheet(s) of paper and/or additional documentation.
To get case status information about your TPS application, including the status of a request for an EAD, you can check Case Status Online at
Provided that you currently have TPS under the Syria designation, this Notice automatically extends your EAD by 6 months if you:
• Are a national of Syria (or an alien having no nationality who last habitually resided in Syria);
• Received an EAD under the last extension or redesignation of TPS for Syria; and
• Have an EAD with a marked expiration date of September 30, 2016, bearing the notation “A-12” or “C-19” on the face of the card under “Category.”
Although this Notice automatically extends your EAD through March 31, 2017, you must re-register timely for TPS in accordance with the procedures described in this Notice if you would like to maintain your TPS.
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9). You can find additional detailed information on the USCIS I-9 Central Web page at
You may present any document from List A (reflecting both your identity and employment authorization), or one document from List B (reflecting identity) together with one document from List C (reflecting employment authorization). Or you may present an acceptable receipt for List A, List B, or List C documents as described in the Form I-9 Instructions. An EAD is an acceptable document under “List A.” Employers may not reject a document based on a future expiration date.
If your EAD has an expiration date of September 30, 2016, and states “A-12” or “C-19” under “Category,” it has been extended automatically for 6 months by virtue of this
Even though EADs with an expiration date of September 30, 2016, that state “A-12” or “C-19” under “Category” have been automatically extended for 6 months by this
By March 31, 2017, the expiration date of the automatic extension, your employer must reverify your employment authorization. At that time, you must present any document from List A or any document from List C on Employment Eligibility Verification (Form I-9) to reverify employment authorization, or an acceptable List A or List C receipt described in the Form I-9 Instructions. Your employer should complete either Section 3 of the Employment Eligibility Verification (Form I-9) originally completed for you or, if this Section has already been completed or if the version of Employment Eligibility Verification (Form I-9) has expired (check the date in the upper right-hand corner of the form), complete Section 3 of a new Employment Eligibility Verification (Form I-9) using the most current version. Note that your employer may not specify which List A or List C document employees must present, and cannot reject an acceptable receipt.
No. When completing Employment Eligibility Verification (Form I-9), including re-verifying employment authorization, employers must accept any documentation that appears on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9) that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Syrian citizenship or proof of re-registration for TPS when completing Employment Eligibility Verification (Form I-9) for new hires or reverifying the employment authorization of current employees. If presented with EADs that have been automatically extended, employers should accept such EADs as valid List A documents so long as the EADs reasonably appear to be genuine and to relate to the employee. Refer to the Note to Employees section of this Notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status, or your national origin.
After March 31, 2017, employers may no longer accept the EADs that this
When using an automatically extended EAD to complete Employment Eligibility Verification (Form I-9) for a new job prior to March 31, 2017, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work”;
b. Write your alien number (USCIS number or A-number) in the first space (your EAD or other document from DHS will have your USCIS number or A-number printed on it; the USCIS number is the same as your A-number without the A prefix); and
c. Write the automatically extended EAD expiration date (March 31, 2017) in the second space.
2. For Section 2, employers should record the:
a. Document title;
b. Document number; and
c. Automatically extended EAD expiration date (March 31, 2017).
By March 31, 2017, employers must reverify the employee's employment authorization in Section 3 of the Employment Eligibility Verification (Form I-9).
If you are an existing employee who presented a TPS-related EAD that was valid when you first started your job, but that EAD has now been automatically extended, your employer may need to reinspect your automatically extended EAD if your employer does not have a copy of the EAD on file, and you and your employer should correct your previously completed Employment Eligibility Verification (Form I-9) as follows:
1. For Section 1, you should:
a. Draw a line through the expiration date in the second space;
b. Write “March 31, 2017” above the previous date;
c. Write “TPS Ext.” in the margin of Section 1; and
d. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Draw a line through the expiration date written in Section 2;
b. Write “March 31, 2017” above the previous date;
c. Write “TPS Ext.” in the margin of Section 2; and
d. Initial and date the correction in the margin of Section 2.
By March 31, 2017, when the automatic extension of EADs expires, employers must reverify the employee's employment authorization in Section 3.
E-Verify automated the verification process for employees whose TPS was automatically extended in a
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth reverification requirements. For general questions about the employment eligibility verification process, employers may call USCIS at 888-464-4218 (TTY for the hearing impaired is at 877-875-6028) or email USCIS at
For general questions about the employment eligibility verification process, employees may call USCIS at 888-897-7781 (TTY for the hearing impaired is at 877-875-6028) or email at
To comply with the law, employers must accept any document or combination of documents from the List of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee,
Employers may not terminate, suspend, delay training, withhold pay, lower pay or take any adverse action against an employee based on the employee's decision to contest a TNC or because the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify an employee's employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY for the hearing impaired is at 877-875-6028). To report an employer for discrimination in the E-Verify process based on citizenship or immigration status, or based on national origin, contact OSC's Worker Information Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Employment Eligibility Verification (Form I-9) and E-Verify procedures is available on the OSC Web site at
While Federal government agencies must follow the guidelines laid out by the Federal government, state and local government agencies establish their own rules and guidelines when granting certain benefits. Each state may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, state, or local government benefit, you may need to provide the government agency with documents that show you are a TPS beneficiary and/or show you are authorized to work based on TPS. Examples of such documents are:
(1) Your unexpired EAD that has been automatically extended, or your EAD that has not expired;
(2) A copy of this
(3) A copy of your Application for Temporary Protected Status Notice of Action (Form I-797) for this re-registration;
(4) A copy of your past or current Application for Temporary Protected Status Notice of Action (Form I-797), if you received one from USCIS; and/or
(5) If there is an automatic extension of work authorization, a copy of the fact sheet from the USCIS TPS Web site that provides information on the automatic extension.
Check with the government agency regarding which document(s) the agency will accept. You may also provide the agency with a copy of this
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements Program (SAVE) to verify the current immigration status of applicants for public benefits. If such an agency has denied your application based solely or in part on a SAVE response, the agency must offer you the opportunity to appeal the decision in accordance with the agency's procedures. If the agency has received and acted upon or will act upon a SAVE verification and you do not believe the response is correct, you may make an InfoPass appointment for an in-person interview at a local USCIS office. Detailed information on how to make corrections or make an appointment can be found at the SAVE Web site at
Fish and Wildlife Service, Interior.
Notice of initiation of review; request for information.
We, the U.S. Fish and Wildlife Service, are initiating a 5-year status review under the Endangered Species Act of 1973, as amended (Act), of the orangutan. A 5-year status review is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any such information that has become available since the last review of the species.
To ensure consideration, we are requesting submission of new information no later than September 30, 2016. However, we will continue to accept new information about any listed species at any time.
Please submit your information in writing by any one of the following methods:
•
•
•
For more about submitting information, see “Request for Information” in the
Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: ES, Falls Church, VA 22041; telephone 703-358-2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We are initiating a 5-year status review under the Act of the orangutan (
Under the Act (16 U.S.C. 1531
A 5-year review considers all new information available at the time of the review. In conducting these reviews, we consider the best scientific and commercial data that have become available since the listing determination or most recent status review, such as:
(A) Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
(B) Habitat conditions, including but not limited to amount, distribution, and suitability;
(C) Conservation measures that have been implemented that benefit the species;
(D) Threat status and trends in relation to the five listing factors (as defined in section 4(a)(1) of the Act); and
(E) Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.
Any new information will be considered during the 5-year review and will also be useful in evaluating the ongoing recovery programs for the species.
To ensure that a 5-year review is complete and based on the best available scientific and commercial information, we request new information from all sources. See “What information do we consider in our review?” for specific criteria. If you submit information, please support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the offices where the comments are submitted.
This document is published under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless a Federal permit is issued that allows such activities. The ESA requires that we invite public comment before issuing these permits.
We must receive written data or comments on the applications at the address given below by
Documents and other information submitted with the applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to the following office within 30 days of the date of publication of this notice: U.S. Fish and Wildlife Service, Ecological Services, 1875 Century Boulevard, Suite 200, Atlanta, GA 30345 (Attn: Karen Marlowe, Acting Permit Coordinator).
Karen Marlowe, Acting 10(a)(1)(A) Permit Coordinator, telephone 205-726-2667; facsimile 205-726-2479.
The public is invited to comment on the following applications for permits to conduct certain activities with endangered and threatened species under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
If you wish to comment, you may submit comments by any one of the following methods. You may mail comments to the Fish and Wildlife Service's Regional Office (see
Before including your address, telephone number, email address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comments to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The applicant requests renewal and amendment of his current permit to add authorization to take (draw blood) for DNA analyses and continue take (trap, hand-capture, collect tail snips, measure, mark, and attach scientific devices) of Alabama red-bellied turtles (
The applicant requests renewal of the current permit to continue take (construct and monitor nest cavities and restrictors, capture, band, and translocate) red-cockaded woodpeckers (
The applicant requests renewal of the current permit to continue take (humane euthanasia) of gray bats (
The permittee requests amendment of their current permit to add authorization to take (capture, handle, identify, mark, and release) Big Sandy crayfish (
The applicant requests renewal of the current permit to continue continue take (construct and monitor nest cavities and restrictors, capture, band, and translocate) red-cockaded woodpeckers (
The applicant requests a permit to take (capture with mist-nets, band, and release) Puerto Rican nightjar (
The applicant requests renewal of the current permit to continue take (construct and monitor nest cavities and restrictors, capture, band, and translocate) red-cockaded woodpeckers (
The applicant requests renewal of the current permit to continue take (construct and monitor nest cavities and restrictors, capture, band, draw blood, salvage nonviable eggs, and translocate) red-cockaded woodpeckers (
Fish and Wildlife Service, Interior.
Notice of availability; request for public comments.
Under the Endangered Species Act, as amended (Act), we, the U.S. Fish and Wildlife Service, invite the public to comment on incidental take permit applications for take of the federally listed American burying beetle resulting from activities associated with the geophysical exploration (seismic) and construction, maintenance, operation, repair, and decommissioning of oil and gas well field infrastructure within Oklahoma. If approved, the permits would be issued under the approved
To ensure consideration, written comments must be received on or before August 31, 2016.
You may obtain copies of all documents and submit comments on the applicant's ITP application by one of the following methods. Please refer to the permit number when requesting documents or submitting comments.
○
○
Marty Tuegel, Branch Chief, by U.S. mail at: U.S. Fish and Wildlife Service, Environmental Review Division, P.O. Box 1306, Room 6034, Albuquerque, NM 87103; or by telephone at 505-248-6651.
Under the Endangered Species Act, as amended (16 U.S.C. 1531
We invite local, State, Tribal, and Federal agencies, and the public to comment on the following applications under the ICP, for incidental take of the federally listed ABB. Please refer to the appropriate permit number (
Applicant requests an amended permit for oil and gas upstream and midstream production, including geophysical exploration (seismic) and construction, maintenance, operation, repair, and decommissioning of oil and gas well field infrastructure, as well as construction, maintenance, operation, repair, decommissioning, and reclamation of oil and gas gathering, transmission, and distribution pipeline infrastructure within Oklahoma.
Applicant requests an amended permit for oil and gas upstream and midstream production, including geophysical exploration (seismic) and construction, maintenance, operation, repair, and decommissioning of oil and gas well field infrastructure, as well as construction, maintenance, operation, repair, decommissioning, and reclamation of oil and gas gathering, transmission, and distribution pipeline infrastructure within Oklahoma.
Written comments we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. We will not consider anonymous comments. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
We provide this notice under section 10(c) of the Act (16 U.S.C. 1531
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty orders on certain polyester staple fiber from Korea and Taiwan would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Effective August 1, 2016. To be assured of consideration, the deadline for responses is August 31, 2016. Comments on the adequacy of responses may be filed with the Commission by October 14, 2016.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
(1)
(2) The
(3) The
(4) The
(5) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule at § 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
No response to this request for information is required if a currently valid Office of Management and Budget (OMB) number is not displayed; the OMB number is 3117-0016/USITC No. 16-5-364, expiration date June 30, 2017. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on glycine from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
(1)
(2) The
(3) The
(4) The
(5) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule at § 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
No response to this request for information is required if a currently valid Office of Management and Budget (OMB) number is not displayed; the OMB number is 3117-0016/USITC No. 16-5-363, expiration date June 30, 2017. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.61 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
Authority: The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2016).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on July 26, 2016, ORDERED THAT —
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(A) of section 337 in the importation into the United States, or in the sale of certain hand dryers and housings for hand dryers by reason of trade dress infringement, the threat or effect of which is to destroy or substantially injure an industry in the United States;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. Marshals Service, Department of Justice.
30-day notice.
The Department of Justice (DOJ), U.S. Marshals Service (USMS), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional days until August 31, 2016.
If you have additional comments especially on the estimated public burden or associated response time,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
○
○
○
○
○
○
○
○
4.
It is estimated that 208 respondents will complete a 20 minute form twice per year.
It is estimated that 7 respondents will complete a 15 minute form twice per year.
It is estimated that 2,000 respondents will complete a 20 minute form.
It is estimated that 300 respondents will complete a 30 minute form.
5.
There are an estimated 139 annual total burden hours associated with this collection.
There are an estimated 4 annual total burden hours associated with this collection.
There are an estimated 667 annual total burden hours associated with this collection.
There are an estimated 150 annual total burden hours associated with this collection.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Department of Justice.
Final guidelines.
The Sex Offender Registration and Notification Act (“SORNA”) requires registration of individuals convicted of sex offenses as adults and, in addition, registration of juveniles adjudicated delinquent for certain serious sex offenses. SORNA also provides for a reduction of justice assistance funding to eligible jurisdictions that fail to “substantially implement” SORNA's requirements, including the juvenile registration requirement, in their sex offender registration programs. These guidelines provide guidance regarding the substantial implementation of the juvenile registration requirement by eligible jurisdictions. The Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking will examine the following factors when assessing whether a jurisdiction has substantially implemented SORNA's juvenile registration provisions: policies and practices to prosecute as adults juveniles who commit serious sex offenses; policies and practices to register juveniles adjudicated delinquent for serious sex offenses; and other policies and practices to identify, track, monitor, or manage juveniles adjudicated delinquent for serious sex offenses who are in the community and to ensure that the records of their identities and sex offenses are available as needed for public safety purposes. By affording jurisdictions greater flexibility in their efforts to substantially implement SORNA's juvenile registration requirement, the guidelines will further SORNA's public safety objectives in relation to serious juvenile sex offenders and facilitate jurisdictions' substantial implementation of all aspects of SORNA. The guidelines concern only substantial implementation of SORNA's juvenile registration requirement and do not affect substantial implementation of SORNA's registration requirements for individuals convicted of sex offenses as adults.
Luis C.deBaca, Director, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; Office of Justice Programs, United States Department of Justice, Washington, DC, (202) 514-4689.
The Sex Offender Registration and Notification Act (“SORNA”), title I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, was enacted on July 27, 2006. SORNA (42 U.S.C. 16901
SORNA provides a financial incentive for eligible jurisdictions to adopt its standards, by requiring a 10 percent reduction of federal justice assistance funding to an eligible jurisdiction if the Attorney General determines that the jurisdiction has failed to “substantially implement” SORNA. 42 U.S.C. 16925(a). SORNA also directs the Attorney General to issue guidelines and regulations to interpret and implement SORNA.
In addition to requiring registration based on adult convictions for sex offenses, SORNA includes as covered “sex offender[s]” juveniles at least 14 years old who have been adjudicated delinquent for particularly serious sex offenses. 42 U.S.C. 16911(1), (8);
The SORNA Guidelines explained, in particular, that substantial implementation of SORNA need not include registration of juveniles adjudicated delinquent for certain lesser offenses within the scope of SORNA's juvenile registration provisions. The Guidelines stated that jurisdictions can achieve substantial implementation if they cover offenses by juveniles at least 14 years old that consist of engaging (or attempting or conspiring to engage) in a sexual act with another by force or the threat of serious violence or by rendering unconscious or involuntarily drugging the victim.
The Supplemental Guidelines included a subsequent change affecting the treatment of all persons required to register on the basis of juvenile delinquency adjudications. SORNA authorizes the Attorney General to create exemptions from SORNA's requirement that information about registered sex offenders be made available to the public through Web site postings and other means.
Based on additional experience with SORNA implementation, and further reflection on the practicalities and effects of juvenile registration, the Department of Justice proposed and solicited public comment on new supplemental guidelines modifying the approach the SMART Office will take in assessing whether a jurisdiction has substantially implemented SORNA's juvenile registration requirement; those proposed supplemental guidelines were published in the
While most states provide for registration of some sex offenders based on juvenile delinquency adjudications, many do not or do so only on a discretionary basis.
First, juveniles may be subject to prosecution in either of two distinct justice systems—the juvenile justice system or the adult criminal justice system. The SORNA Guidelines provide that registration jurisdictions may substantially implement SORNA's juvenile registration requirement by registering persons at least 14 years old at the time of the offense who are adjudicated delinquent for an offense amounting to rape or its equivalent, or an attempt or conspiracy to commit such an offense.
Consequently, a jurisdiction may advance SORNA's public safety goals in relation to serious juvenile sex offenders not only by prescribing mandatory registration for those offenders adjudicated delinquent, but also by prosecuting such offenders in the adult criminal justice system. Consider a jurisdiction that normally subjects sex offenders in SORNA's juvenile registration category to adult prosecution and conviction, with resulting registration, but that does not have mandatory registration for the relatively few offenders in this category who are proceeded against in the juvenile justice system. With respect to most sex offenders, the jurisdiction protects the public through registration at least as effectively as a jurisdiction that proceeds against more offenders as juveniles and has mandatory registration based on delinquency adjudications, because all individuals convicted of qualifying sex offenses as adults are required to register. In some respects, a jurisdiction oriented towards adult prosecution of the most serious juvenile sex offenders may more effectively advance SORNA's public safety objectives, because prosecution as an adult also makes available the more substantial incarceration and supervision sanctions of the adult criminal justice system. But if mandatory juvenile registration is treated as a
A second feature unique to juvenile sex offenders is that SORNA requires registration only for certain juveniles who are adjudicated delinquent for particularly serious sex offenses—that is, sex offenses that are “comparable to or more serious than aggravated sexual abuse” (or attempt or conspiracy to commit such offenses). 42 U.S.C. 16911(8). Jurisdictions that allow for discretionary registration of juveniles adjudicated delinquent for sex offenses may in practice capture many of the juveniles in SORNA's juvenile registration category—especially those who pose the most danger to others—in their registration schemes. Rather than simply rejecting a jurisdiction's approach to juvenile registration for having a discretionary aspect, examination of these registration programs as applied would allow the SMART Office to determine whether, when considered as part of a jurisdiction's overall registration scheme, this variance does or does not substantially disserve SORNA's purposes.
Considering discretionary juvenile registration might appear to be inconsistent with the response to public comments accompanying the issuance of the SORNA Guidelines, which stated that registration as “a matter of judicial discretion” is insufficient to substantially implement SORNA's juvenile registration requirement. 73 FR at 38038. However, that response addressed comments urging that discretionary registration should in itself be considered sufficient implementation of SORNA's requirements, “ignor[ing] what SORNA provides on this issue, and instead do[ing] something different that the commenters believe to be better policy.”
A third feature specific to the juvenile context is the prevalence of juvenile confidentiality provisions, which can limit the availability of information about the identities, locations, and
A jurisdiction that does not implement juvenile registration in the exact manner specified in SORNA's juvenile registration provisions may nevertheless adopt other measures that address the underlying concerns as part of its substantial implementation of SORNA. For example, a jurisdiction may have means of monitoring or tracking juvenile sex offenders following release, such as extended post-release supervision regimes or address-reporting requirements, that may not incorporate all aspects of SORNA's registration system, but that may nevertheless help law enforcement agencies to identify the sex offenders in their areas and the perpetrators of new sex offenses. Confidentiality requirements for juvenile records may be appropriately defined and limited so as not to conceal risks to potential victims from persons who committed serious sex offenses as juveniles.
In sum, a number of factors are reasonably considered in ascertaining whether a jurisdiction has substantially implemented SORNA's juvenile registration provisions, which have not been articulated or given weight to the same extent under previous guidelines. Accordingly, in these guidelines, the Attorney General expands the matters that the SMART Office will consider in determining substantial implementation of this SORNA requirement. This expansion recognizes that jurisdictions may adopt myriad robust measures to protect the public from serious juvenile sex offenders, and will help to promote and facilitate jurisdictions' substantial implementation of all aspects of SORNA.
Twenty-six comments were received from various agencies, organizations, and individuals. A number of the comments were favorable to the proposed supplemental guidelines' expansion of the matters that the SMART Office will consider in determining whether registration jurisdictions have substantially implemented SORNA's juvenile registration provisions. Some of the comments urged that the guidelines should go further, such as by eliminating all registration of juvenile sex offenders. As discussed below, comments of this nature seek actions that are beyond the legal authority of the Department of Justice. Such comments are not germane to the formulation of these guidelines, which explain how the SMART Office will approach the determination whether registration jurisdictions have substantially implemented the existing juvenile registration requirement under SORNA.
The specific comments, with their identifying designations on
#1. This comment [DOJ-OAG-2016-0004-0005], submitted by 15 individuals identified as researchers with expertise on juvenile sexual offending, contains three specific recommendations for revising these guidelines:
(i) The first recommendation is to remove all requirements for registration of youth adjudicated delinquent for sex offenses, based on studies the researchers describe as showing that such registration is ineffective and has adverse consequences. However, the Attorney General has no authority to repeal or amend federal laws by issuing guidelines, or to nullify SORNA's juvenile registration provisions in particular.
(ii) The second recommendation is to remove all language in these guidelines that could encourage waiver of juveniles to adult criminal court, based on a study the researchers describe as implying that such waiver policies do not improve public safety and are subject to bias. However, these guidelines do not encourage prosecution of juveniles as adults. Rather, the guidelines (A) recognize that practically all states authorize or require adult prosecution for many or all juveniles in SORNA's juvenile registration category, and (B) provide that policies or practices to prosecute as adults juveniles who commit serious sex offenses are appropriately considered in determining whether a jurisdiction has substantially implemented SORNA's juvenile registration requirement, because adult prosecution may result in registration and the availability of adult criminal sanctions.
(iii) The third recommendation is that language should be included in the guidelines supporting the provision of evidence-based treatment services to youth adjudicated delinquent of sex offenses and their caregivers, based on studies the researchers describe as demonstrating the efficacy of treatment. However, the guidelines as drafted already give weight to policies and practices to identify, track, monitor, or manage juveniles adjudicated delinquent for serious sex offenses—measures that may include treatment.
#2. This comment [DOJ-OAG-2016-0004-0020], from two individuals, refers to and states support for the recommendations appearing in comment #1, discussed above.
#3. This comment [DOJ-OAG-2016-0004-0022], submitted by the National Juvenile Justice Prosecution Center, states that these guidelines are a positive development in balancing public safety with the developmental nature and special needs of juvenile offenders, because they provide a more well-rounded approach to safety and greater flexibility.
#4. This comment [DOJ-OAG-2016-0004-0008], submitted on behalf of 14 organizations and individuals concerned about the inclusion of youth on sex offender registries, includes four specific recommendations and the conclusion that “youth registration should end.” Many of the adverse consequences of juvenile registration asserted by these commenters would appear to be related to public disclosure of juvenile sex offenders' identities and offenses as opposed to registration per se. The Attorney General has already provided in earlier supplemental guidelines under SORNA that registration jurisdictions need not publicly disclose information about sex offenders required to register on the basis of juvenile delinquency adjudications.
(i) The first recommendation is to hold a full public hearing on these guidelines before finalizing them.
(ii) The second recommendation is to convene a task force to study and recommend best practices for youths charged with sexual offenses. However, convening a task force is not necessary to conclude that these guidelines' more flexible approach to determining substantial implementation is warranted. The comment does not explain what information relevant to the formulation of these guidelines would be obtained by a task force that has not or could not have been provided in the submitted public comments, and does not otherwise provide a persuasive reason to refrain from issuing these guidelines pending the creation of a task force and completion of its work.
(iii) The third recommendation is to revise the guidelines to explicitly incentivize evidence-based rather than harmful practices, such as a policy that eschews juvenile registration but “ensures that every young person adjudicated of a sexual offense undergoes a validated evaluation and is placed in risk and needs-based programming.” As noted above, the Attorney General has no authority to nullify SORNA's juvenile registration requirement,
(iv) The fourth recommendation is to move towards a system that reassures states that they will not lose federal justice assistance funding if they do not register youth and discourages state policies that require youth registration. However, the Attorney General and the SMART Office are charged by law with seeking the substantial implementation of SORNA by registration jurisdictions, including SORNA's juvenile registration provisions.
#5. The authors of this comment [DOJ-OAG-2016-0004-0023] identify themselves as the parents of a 16-year-old who is currently incarcerated in a juvenile facility, and who is subject to lifetime inclusion on a sex offender registry, because he had pornographic pictures on his phone. The commenters express concern that this will ruin his life, including preventing him from being in a high school graduation ceremony or attending college. The concerns expressed in the comment relate to actions taken pursuant to state law and do not weigh against issuing guidelines that afford greater flexibility in determining substantial implementation of SORNA's juvenile registration provisions. SORNA itself does not require registration based on juvenile adjudications for pornography offenses like that described in this comment. In terms of offense coverage, it suffices for substantial implementation of SORNA's juvenile registration requirement if jurisdictions require registration of persons at least 14 years old at the time of the offense based on delinquency adjudications for offenses amounting to rape or its equivalent or an attempt or conspiracy to commit such an offense.
#6. This comment [DOJ-OAG-2016-0004-0011], submitted on behalf of the Pueblo of Laguna, recommends (i)-(ii) amending state and federal law to ensure that youth sex offenders are placed on registries only after an individualized assessment, with periodic review of youth sex offender registrations, (iii) using youth sex offender registration information solely for law enforcement purposes and not disclosing it publicly, (iv) creating an impartial body to ensure that all registration information is accurate and not misleading and to remove youth offenders from registries as soon as registration requirements have ended, (v) advising juvenile sexual offense defendants of the consequences of a conviction or adjudication, including registration, community notification, and residency requirements, (vi) taking account of the need to protect the safety of people convicted of sex offenses in deciding the method and scope of community notification, and (vii) providing training on relevant youth issues to officers involved in the investigation of sexual offenses. Regarding (i)-(ii), the Attorney General has no legal authority to amend state or federal laws, and in particular, cannot nullify SORNA's juvenile registration provisions.
#7. This comment [DOJ-OAG-2016-0004-0019] states opposition to sex offender registration generally, “for all but high-risk offenders,” and in particular states that the commenter is vehemently against registration for persons committing sexual crimes as juveniles. The comment does not weigh against issuance of these guidelines, which explain how the SMART Office will determine whether registration jurisdictions have substantially implemented SORNA's juvenile
#8. This comment [DOJ-OAG-2016-0004-0012] proposes eliminating requirements for juvenile registration and supporting well-delivered specialized treatment. However, the Attorney General has no authority to eliminate SORNA's juvenile registration provisions.
#9. The authors of this comment [DOJ-OAG-2016-0004-0017] identify themselves as the parents of a 15-year-old boy who is required to register as a sex offender for 10 years, because of a child pornography adjudication based on his sending unsolicited photos of his genitalia to a female classmate. The commenters express concern about adverse effects on their son's life, including limitation of employment opportunities and unsupervised association with a younger brother, and they reproduce and endorse the recommendations set forth in comment #1. Regarding those recommendations, see the discussion of comment #1 above. The comment otherwise relates to actions taken pursuant to state law and does not weigh against issuance of these guidelines, which afford greater flexibility in determining substantial implementation of SORNA's juvenile registration provisions. SORNA does not require registration based on juvenile adjudications for offenses like that described in this comment. In terms of offense coverage, it suffices for substantial implementation of SORNA's juvenile registration requirement if jurisdictions require registration of persons at least 14 years old at the time of the offense based on delinquency adjudications for offenses amounting to rape or its equivalent or an attempt or conspiracy to commit such an offense.
#10. This comment [DOJ-OAG-2016-0004-0004] describes the changes in these guidelines as a step in the right direction, but it characterizes SORNA as “misguided” in relation to juvenile offenders and encourages exploration of other methods of sexual abuse prevention that are less likely to be counterproductive for juvenile offenders and that are focused only on juvenile offenders determined after judicial review to be a risk. However, the Attorney General does not have the authority to override the legislative judgments embodied in SORNA, including SORNA's juvenile registration provisions.
#11. This comment [DOJ-OAG-2016-0004-0024], submitted on behalf of Human Rights Watch, recommends deleting two of the three specific factors these guidelines give weight to—policies and practices to prosecute as adults juveniles who commit serious sex offenses, and policies and practices to register juveniles adjudicated delinquent for serious sex offenses. In support of this recommendation, the comment argues that adult prosecution of juveniles and registration of juveniles have various adverse effects on juveniles. However, the comment provides no persuasive reason why the guidelines should not give weight to these factors. In determining whether registration jurisdictions have substantially implemented SORNA's juvenile registration requirement, policies and practices of adult prosecution of serious juvenile sex offenders may be relevant because they may result in registration and the availability of adult criminal sanctions, and policies and practices of registering juvenile sex offenders may be relevant because, even if discretionary, they may in practice capture many of the juveniles in SORNA's juvenile registration category in the jurisdiction's registration scheme.
#12. This comment [DOJ-OAG-2016-0004-0015], submitted on behalf of the National District Attorneys Association, views the guidelines favorably as providing states with flexibility to comply with SORNA and protect community safety while maintaining the integrity of their juvenile justice systems.
#13. This comment [DOJ-OAG-2016-0004-0026], submitted on behalf of the Lambda Legal Defense and Education Fund, joins in the recommendations of comment #4. The comment particularizes some of the recommendations of comment #4 to reference specifically LGBTQ youth and it asserts that criminal prosecution and punishment and registration for sex offenses operate more harshly against LGBTQ youth. The response to this comment is essentially the same as the response to comment #4.
#14. This comment [DOJ-OAG-2016-0004-0016], submitted on behalf of the Association for the Treatment of Sexual Abusers, generally criticizes juvenile registration and adult prosecution of juveniles, states support for giving jurisdictions greater discretion whether to register children adjudicated for sexual crimes, thanks the SMART Office for its continued efforts in developing a more responsive and nuanced policy, and provides four specific recommendations:
(i) The first recommendation is to develop appropriate assessments taking account of a youth's clinical, family, and environmental situation to formulate effective, individualized treatment and management plans for youth. However, the guidelines as drafted give weight to policies and practices to identify, track, monitor, or manage juveniles adjudicated delinquent for serious sex offenses, which may include the measures described in this comment.
(ii) The second recommendation is to remove requirements for broad-based youth registration and notification. However, SORNA itself requires registration by certain juveniles adjudicated delinquent for serious sex offenses. The Attorney General has no authority to change what SORNA provides. These guidelines are responsive to the concerns expressed in this comment, within the bounds of the law, in allowing consideration of a broader range of measures in
(iii) The third recommendation is to include language that supports the use of evidence-based treatment and management strategies for youth. However, the guidelines as drafted already give weight to policies and practices to identify, track, monitor, or manage juveniles adjudicated delinquent for serious sex offenses, which may include evidence-based treatment and management strategies.
(iv) The fourth recommendation is to remove language that promotes the waiver of youth to adult courts. The response to comment #1 includes discussion of this issue.
#15. This comment [DOJ-OAG-2016-0004-0021], submitted on behalf of Stop It Now!, supports the recommendations appearing in comment #1. Those recommendations are discussed above in connection with comment #1.
#16. The author of this comment [DOJ-OAG-2016-0004-0010] criticizes the sex offender registration system of his state as adversely impacting juveniles. The comment asks for a direction to the 50 states, the District of Columbia, and the territories to create a process to remove all their registered sex offenders who were convicted when juveniles from every registry by January 2018 and to stop adding new juveniles immediately. The Attorney General has no legal authority to issue such a direction to registration jurisdictions.
#17. This comment [DOJ-OAG-2016-0004-0006], submitted on behalf of the Annie E. Casey Foundation, refers to the letter discussed as comment #1 above, states concerns and recommendations similar to those appearing in that letter, and particularly emphasizes the commenter's concern about prosecution of juveniles as adults. The response to comment #1 discusses these matters.
#18. This comment [DOJ-OAG-2016-0004-0014], submitted by the Attorney General of Alaska, (i) endorses the more flexible approach of these guidelines to determining substantial implementation of SORNA's juvenile registration provisions, (ii) notes that the SMART Office has previously found that Alaska was not compliant with SORNA's juvenile registration requirement, and (iii) provides information about Alaska's system in support of a different conclusion under the new guidelines. Following the issuance of these guidelines, the SMART Office will entertain requests for substantial implementation determinations regarding juvenile registration in conformity with the new guidelines, including requests from jurisdictions previously subject to negative determinations under the pre-existing substantial implementation standards.
#19. The author of this comment [DOJ-OAG-2016-0004-0018] identifies himself or herself as the parent of a son adjudicated for distributing child pornography, based on sending pictures of himself to a classmate he had a crush on when he was 14. The comment states that the son will have to register as a sex offender for at least 10 years as a result, and that he now cannot attend the high school he attended over the last year or other schools in the area. The comment urges that a child should not be labeled a sex offender for sending a picture of himself to a friend. The response to this comment is essentially the same as the response to comments #5 and #9 above. The concerns expressed in the comment relate to actions taken pursuant to state law and do not weigh against issuing guidelines that afford greater flexibility in determining substantial implementation of SORNA's juvenile registration provisions. SORNA does not require registration based on juvenile adjudications for offenses like that described in the comment, does not restrict where juvenile sex offenders may go to school, and does not require public disclosure of identity or other information for juveniles required to register on the basis of delinquency adjudications.
#20. This comment [DOJ-OAG-2016-0004-0003] recommends that the SMART Office seek a change in the law so that states cannot publicly post information about juvenile registrants on Web sites unless the registrants are tried and convicted in adult court. The comment is not germane to these guidelines, which are concerned with substantial implementation of the juvenile registration requirement under existing federal law (SORNA). The Attorney General has already provided in earlier guidelines under SORNA that registration jurisdictions need not publicly post information about persons required to register on the basis of juvenile delinquency adjudications.
#21. This comment [DOJ-OAG-2016-0004-0007], submitted on behalf of the National Criminal Justice Association, states support for these guidelines. The comment notes that some states have not yet achieved substantial implementation of SORNA because of SORNA's mandatory registration requirements for specific juvenile offenses. The comment states that by allowing the SMART Office to assess juvenile registration in a more holistic manner and to review comprehensively relevant state policies and practices, the guidelines “will go a long way in allowing states . . . to achieve substantial implementation with the requirements of SORNA . . . in a way that protects community safety.” Noting that many states have fallen short of compliance in relation to required registration for adjudicated juveniles, the comment describes these guidelines as a welcome clarification about the review the SMART Office will undertake in assessing whether a jurisdiction has substantially implemented SORNA's juvenile registration provisions.
#22. This comment [DOJ-OAG-2016-0004-0025] criticizes sex offender registration for anyone under 20. As explained in the responses to other comments, the Attorney General has no authority to change sex offender registration laws, and in particular, no authority to eliminate SORNA's juvenile registration requirement.
#23. This comment [DOJ-OAG-2016-0004-0002] includes pictures of an apparently injured individual, with text representing that the injuries resulted from an attack occasioned by his inclusion on a sex offender registry. The comment says that this is what all people labeled as sex offenders can expect from their government. The comment is not germane to these guidelines, which explain how the SMART Office will determine whether registration jurisdictions have substantially implemented SORNA's juvenile registration requirement. If the point of the comment is to assert a risk of violence against sex offenders resulting from public disclosure of their identities, the Attorney General has provided in earlier guidelines that jurisdictions need not make such disclosure for sex offenders required to register on the basis of juvenile delinquency adjudications.
#24. This comment [DOJ-OAG-2016-0004-0013], submitted by the Secretary of Public Safety and Homeland Security of the State of Virginia, states support
#25. This comment [DOJ-OAG-2016-0004-0009] is submitted on behalf of “Just Kids,” described as a national coalition made up of legal experts, child advocates, juvenile justice policy experts, and victim advocates concerned about including youth on sex offender registries. The commenters overlap with those submitting comment #4 and the comment is similar in substance to comment #4. The response is essentially the same as that provided above to comment #4.
#26. This comment [DOJ-OAG-2016-0004-0027] states that underage children should not have to suffer lifelong consequences for a mistake and asks for the enactment of a law providing that underage children shown to be productive citizens during their rehabilitation can be blemish-free later in their adult productive life. The Attorney General does not have the authority to enact laws and the comment is not germane to the issuance or formulation of guidelines concerned with the determination whether registration jurisdictions have substantially implemented SORNA's juvenile registration requirement.
In sum, the public comments received did not provide any persuasive reason to change or delay finalization of the proposed guidelines, which are finalized here without change.
If a jurisdiction does not register juveniles at least 14 years old who are adjudicated delinquent for particularly serious sex offenses in exact conformity with SORNA's provisions—for example, because the jurisdiction uses a discretionary process for determining such registration—the SMART Office will examine the following factors when assessing whether the jurisdiction has nevertheless substantially implemented SORNA's juvenile registration requirements: (i) Policies and practices to prosecute as adults juveniles who commit serious sex offenses; (ii) policies and practices to register juveniles adjudicated delinquent for serious sex offenses; and (iii) other policies and practices to identify, track, monitor, or manage juveniles adjudicated delinquent for serious sex offenses who are in the community and to ensure that the records of their identities and sex offenses are available as needed for public safety purposes. Consistent with the requirements for other aspects of a jurisdiction's program that do not exactly follow SORNA's provisions, a jurisdiction that seeks to rely on these factors in establishing substantial implementation must identify any departure from SORNA's requirements in its submission to the SMART Office and “explain why the departure from the SORNA requirements should not be considered a failure to substantially implement SORNA.” 73 FR at 38048. The SMART Office will determine that a jurisdiction relying on these factors has substantially implemented SORNA's juvenile registration requirement only if it concludes that these factors, in conjunction with that jurisdiction's other policies and practices, have resulted or will result in the registration, identification, tracking, monitoring, or management of juveniles who commit serious sex offenses, and in the availability of the identities and sex offenses of such juveniles as needed for public safety purposes, in a manner that does not substantially disserve SORNA's objectives.
U.S. Department of Justice and various components.
30-Day notice.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, Department of Justice will be submitting a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
The purpose of this notice is to allow for an additional 30 days for public comment until August 31, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Jerri Murray, Department Clearance Officer,
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received no comments in response to the 60-day notice published in the
Below we provide the Department of Justice's projected average estimates for the next three years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E-405B, Washington, DC 20530.
Office of the Secretary, DOL.
Notice.
The Department of Labor (DOL) will submit the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Plan Asset Transactions Determined by In-House Asset Managers Under Prohibited Transaction Class Exemption 1996-23,” to the Office of Management and Budget (OMB) on July 30, 2016, 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 31, 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-EBSA, 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
This ICR seeks to extend PRA authority for the Plan Asset Transactions Determined by In-House Asset Managers Under Prohibited Transaction Class Exemption 1996-23 (PTE 96-23) information collection. PTE 96-23 permits various parties in interest to an employee benefit plan to engage in transactions involving plan assets if, among other requirements, the assets are managed by an in-house asset manager (INHAM). The information collection requirements that are PTE 96-23 conditions include written policies and procedures by an INHAM and audit requirements. An independent auditor will use the written policies and procedures to determine the INHAM's compliance with the exemption. An independent auditor will conduct an annual exemption audit and make a determination whether the INHAM is in compliance with the written policies and procedures and the objective requirements of the exemption. These information collections are designed to safeguard participants and beneficiaries in plans managed by INHAMS that are involved in transactions covered by the exemption. Employee Retirement Income Security Act of 1974 section 408(a) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and 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 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,
44 U.S.C. 3507(a)(1)(D).
Notice.
The Department of Labor (DOL) will submit the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers Under Prohibited Transaction Exemption 1984-14,” to the Office of Management and Budget (OMB) on July 30, 2016, 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 31, 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-EBSA, 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 Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers Under Prohibited Transaction Exemption 1984-14 (PTE 84-14) information collection. PTE 84-14 permits a party that is related to an employee benefit plan to engage in transactions involving plan assets if, among other conditions, the assets are managed by a qualified professional asset manager (QPAM) that is independent of the parties in interest. Additional relief is also available under specific circumstances that are fully addressed within the exemption. The information collection requirements that are conditions of the exemption include written policies and procedures by a QPAM and audit requirements. An independent auditor uses the written policies and procedures to determine whether the QPAM is in compliance with the written policies and procedures and whether the exemption conditions have been met. These information collections are designed to safeguard participants and beneficiaries in plans that are involved in transactions covered by the exemption. PTE 84-14 does not require any reporting or filing with the Federal government. Employee Retirement Income Security Act of 1974 section 408(a) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and 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 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,
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of Nemko North America, Inc., for expansion of its recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the Agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before August 16, 2016.
Submit comments by any of the following methods:
1.
2.
3.
4.
5.
6.
Information regarding this notice is available from the following sources:
The Occupational Safety and Health Administration is providing notice that Nemko North America, Inc. (NNA), is applying for expansion of its current recognition as an NRTL. NNA requests the addition of one test standard to its NRTL scope of recognition.
OSHA recognition of an NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by its applicable test standard; and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The Agency processes applications by an NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the
NNA currently has three facilities (sites) recognized by OSHA for product testing and certification, with its headquarters located at: Nemko Canada, Inc., 303 River Road, Ottawa, Ontario, Canada K1V 1H2. A complete list of NNA's scope of recognition is available at
NNA submitted an application, dated June 25, 2015 (OSHA-2013-0016-0012), to expand its recognition to include one additional test standard. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.
Table 1 below lists the appropriate test standards found in NNA's application for expansion for testing and certification of products under the NRTL Program.
NNA submitted an acceptable application for expansion of its scope of recognition. OSHA's review of the application file, and pertinent documentation, indicate that NNA can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of this one test standard for NRTL testing and certification listed above. This preliminary finding does not constitute an interim or temporary approval of NNA's application.
OSHA welcomes public comment as to whether NNA meets the requirements of 29 CFR 1910.7 for expansion of its recognition as an NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. Commenters must submit the written request for an extension by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer period. OSHA may deny a request for an extension if the request is not adequately justified. To obtain or review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Room N-2625, Occupational Safety and Health Administration, U.S. Department of Labor, at the above address. These materials also are available online at
OSHA staff will review all comments to the docket submitted in a timely manner and, after addressing the issues raised by these comments, will recommend to the Assistant Secretary for Occupational Safety and Health whether to grant NNA's application for expansion of its scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of its final decision in the
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the collections of information contained in the Formaldehyde Standard (29 CFR 1910.1048).
Comments must be submitted (postmarked, sent, or received) by September 30, 2016.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The standard specifies a number of collections of information. The following is a brief description of the collections of information contained in the Formaldehyde Standard. The standard requires employers to conduct worker exposure monitoring to determine workers' exposure to formaldehyde, notify workers of their formaldehyde exposures, provide medical surveillance to workers, provide examining physicians with specific information, ensure that workers receive a copy of their medical examination results, maintain workers' exposure monitoring and medical records for specific periods, and provide access to these records by the affected workers, and their authorized representatives.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed collection of information requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the collection of information requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
The Agency is requesting an adjustment increase of 581 burden hours (from 237,854 to 238,435 burden hours). The increase in burden hours is due to an estimated increase in the number of covered establishments and workers. There is also an estimated increase in operation and maintenance costs of $1,835,764, from $ 41,724,296 to $43,560,060. The increase in operation and maintenance costs is due to the estimated increase in the number of covered workers undergoing exposure monitoring and medical exams.
OSHA is providing the following summary information about the Formaldehyde Standard information collection:
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration.
Notice of intent to grant partially exclusive license.
This notice is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant a partially exclusive, license in the United States to practice the invention described and claimed in U.S. Patent No. 9,147,755 entitled “Nanostructure-Based Vacuum Channel Transistor”; to Nano Devices Corporation, having its principal place of business at 21821 Monte Court, Cupertino, CA 95014. The patent rights in this invention have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective partially exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that 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. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated partially exclusive license.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A-4, Moffett Field, CA 94035-1000. (650) 604-5104; Fax (650) 604-2767.
Robert M. Padilla, Chief Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A-4, Moffett Field, CA 94035-1000. (650) 604-5104; Fax (650) 604-2767. Information about other NASA inventions available for licensing can be found online at
National Credit Union Administration (NCUA).
Notice and request for comment.
The National Credit Union Administration (NCUA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment the following information collections, as required by the Paperwork Reduction Act of 1995 (Public Law 104-13, 44 U.S.C. Chapter 35).
Written comments should be received on or before August 31, 2016 to be assured consideration.
Interested persons are invited to submit written comments on the information collections to Dawn Wolfgang, National Credit Union Administration, 1775 Duke Street, Suite 5067, Alexandria, Virginia 22314; Fax No. 703-519-8579; or Email at
Requests for additional information should be directed to the address above.
Adjustment are being made to reflect the decline in the number of FICUs.
Adjustment are being made to provide updated recordkeeping burden on FICU. Since 2010, the registry is a standard business practice for MLOs and adjustment have been made to reflect this decrease.
Request for Comments: Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will become a matter of public record. The public is invited to submit comments concerning: (a) Whether the collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of the information on the respondents, including the use of automated collection techniques or other forms of information technology.
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on July 27, 2016.
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 31, 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
National Science Foundation
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nature McGinn, ACA Permit Officer, Division of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Or by email:
On June 24, 2016 the National Science Foundation published a notice in the
1. Robert Ferl Permit No. 2017-003.
2. David Ainley Permit No. 2017-005.
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a letter dated November 6, 2014, from the Pennsylvania State University (Penn State). In this letter, Penn State requested an exemption from certain regulatory requirements, which, if granted, would allow Penn State to submit its annual financial results within 180 days after the close of each succeeding fiscal year. The NRC staff
Please refer to Docket ID NRC-2016-0153 when contacting the NRC about the availability of information about this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Xiaosong Yin, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1404; email:
Penn State is holder of Facility Operating License No. R-2, which authorizes operation of the TRIGA Mark III Breazeale Reactor, located at University Park, Pennsylvania. Penn State seeks an extension from 90 to 180 days by exemption from compliance with section 50.75 of title 10 of the
By letter dated November 6, 2014 (ADAMS Accession No. ML14321A408), Penn State requested that the NRC grant a 90-day extension to the reporting requirements of 10 CFR 50.75 and 10 CFR part 30, appendix E. Penn State made this request under 10 CFR 50.12, “Specific exemptions.”
Penn State is currently using a self-guarantee to provide financial assurance for decommissioning, as allowed by 10 CFR 50.75(e)(1)(iii)(C) for nonprofit entities such as universities. The regulation states that “. . . a guarantee of funds by the applicant or licensee may be used if the guarantee and test are as contained in appendix E to 10 CFR part 30.”
The regulations in 10 CFR part 30, appendix E, require all entities using a self-guarantee to provide financial assurance for decommissioning to submit annual financial tests within 90 days after the close of each succeeding fiscal year to demonstrate their continued eligibility.
The regulations in 10 CFR 50.12 allow the NRC to grant exemptions to the requirements in 10 CFR part 50, “Domestic licensing of production and utilization facilities,” if it deems that the exemptions are authorized by law, will not present an undue risk to public health and safety, and are consistent with the common defense and security. The regulations in 10 CFR 50.12 also specify that the NRC will not consider granting an exemption unless special circumstances are present; for example, application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule, or compliance would result in undue hardship.
Penn State requests an exemption from the requirement to submit its annual financial results information within 90 days after the close of each succeeding fiscal year. Instead, Penn State's exemption request asks to submit this information within 180 days after the close of each succeeding fiscal year.
According to Penn State, the requested exemption is permissible under 10 CFR 50.12 because it will not present a risk to public health and safety, it is consistent with the common defense and security, and the 90-day requirement is not necessary to achieve the underlying purpose of the decommissioning funding rule. Penn State states that it presented the basis for a longer financial recertification time period during the license renewal process (see ADAMS Accession No. ML092650603) and claims that the 90-day rule presents an undue hardship for Penn State. Specifically, Penn State's final financial statements are not available within 90 days of the close of its fiscal year. In part, this is a result of the time necessary for auditing the university finances as a whole, not just the finances for the Breazeale Reactor, which makes the process complex and longer to complete. In addition, Penn State asserts that the requested exemption in no way reduces the effectiveness of the approved decommissioning plan.
Based on the staff's review of Penn State's request for exemption, the NRC believes that Penn State's comprehensive financial reviewing process, which involves Penn State's book balancing, external audits, and the internal approval processes for recertification, does present a special circumstance whereby the 90-day rule will result in an undue hardship to Penn State. In addition, the NRC believes that allowing Penn State to submit its annual financial results within 180 days instead of 90 days after the close of the succeeding fiscal year will not reduce the effectiveness of its currently approved decommissioning funding plan. Furthermore, the NRC finds that granting this exemption will not present an undue risk to public health and safety, is consistent with the common defense and security, and does not undermine the intent of the stated regulations. Therefore, the NRC has elected to grant Penn State an exemption to the requirement of 10 CFR part 50 and appendix E to 10 CFR part 30, allowing Penn State to submit its annual financial results within 180 days of the close of the succeeding fiscal year.
The NRC notes that Penn State has made good faith efforts to comply with these annual financial reporting requirements. The NRC also notes that the Pennsylvania Department of Environmental Protection, Bureau of Radiation Protection, issued a similar exemption to Penn State's Type A Broad Scope license (Commonwealth of Pennsylvania PA-0100).
The staff concluded that 10 CFR 50.12 allows for an exemption to the requirements of the regulations in 10 CFR 50.75 and appendix E to 10 CFR part 30.
The staff determined that the exemption is related to the Penn State financial surety self-guarantee annual reporting, which does not involve Penn State's reactor operation and safety aspects. Therefore, the exemption presents no undue risk to public health and safety.
The staff determined that the exemption is related to the Penn State financial surety self-guarantee annual reporting, which does not involve Penn State's reactor operation and safety aspects. Therefore, granting the exemption will have no effect on the common defense and security.
The staff determined that granting an exemption from the requirements of 10 CFR part 50 and appendix E to 10 CFR part 30 belongs to a category of regulatory actions eligible for categorical exclusion. Since this exemption involves only Penn State's self-guarantee financial surety reporting and does not involve the operations of the Penn State Breazeale Reactor, there is no significant hazards consideration, there is no significant change in the types or significant increase in the amounts of any effluents that may be released off site, there is no significant increase in individual or cumulative public or occupational radiation exposure, there is no significant construction impact; and there is no significant increase in the potential for or consequences from radiological accidents as a result of the NRC granting this exemption. The requirements from which the exemption is sought involve surety, insurance, or indemnity requirements. The exemption meets all categorical exclusion requirements of 10 CFR 51.22(c)(25)(i) through (vi). Therefore, in accordance with 10 CFR 51.22(c)(25)(vi)(H), the staff determines that an environmental review is not required.
The NRC has determined that, pursuant to 10 CFR 50.12, the exemption is authorized by law, will not present an undue risk to public health and safety, and is consistent with the common defense and security. Therefore, the NRC hereby grants Penn State an exemption to the requirements in 10 CFR part 50 and appendix E to 10 CFR part 30. As a result of this exemption, Penn State shall submit its annual financial results within 180 days after the close of each succeeding fiscal year.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on AP1000 will hold a meeting on August 18-19, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the combined license application (COLA) for Turkey Point Units 6 and 7, and the associated NRC staff's advanced safety evaluation (ASE). The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, Florida Power & Light Company, and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Mr. Peter Wen (Telephone 301-415-2832 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on Plant Operations and Fire Protection will hold a meeting on August 16, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the draft final Regulatory Guide 1.26,
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Weidong Wang (Telephone 301-415-6279 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on Reliability and PRA will hold a meeting on August 15, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will be on the progress of updating Draft Regulatory Guide 1.174, Revision 3 (DG-1285) by the staff. The Subcommittee will hear presentations by and hold discussions with the NRC staff and interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), John Lai (Telephone 301-415-5197 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North Building, 11555 Rockville Pike, Rockville, Maryland. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
Nuclear Regulatory Commission.
License termination; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is providing notice of the termination of Facility Operating License No. R-57 for the Alan J. Blotcky Reactor Facility (AJBRF). The NRC has terminated the license of the decommissioned AJBRF at the U.S. Department of Veterans Affairs (VA or the licensee) facility in Omaha, Nebraska, and has released the site for unrestricted use.
Notice of termination of Facility Operating License No. R-57 given on August 1, 2016.
Please refer to Docket ID NRC-2016-0154 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's 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.
Kim Conway, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1335; email:
The AJBRF in Omaha, Nebraska, was operated by the Omaha Veterans Administration Medical Center (VAMC) to support nuclear medicine and research programs conducted at the Omaha VAMC. Between 1959 and 1965, the facility was funded as a national laboratory and employed approximately 30 people. The AJBRF was primarily used for neutron activation of biological samples, but was also used for training Fort Calhoun Station nuclear power reactor operators.
By letters dated September 21, 2004, August 15, 2011, March 8, 2012, May 21, 2014, and November 12, 2014, (ADAMS Accession Nos. ML042740512, ML11255A334, ML12075A202, ML14150A404 (Package), ML14335A597, respectively), the licensee submitted to the NRC an application for amendment of Facility Operating License No. R-57 for AJBRF. The application requested NRC approval of the AJBRF decommissioning plan (DP). The NRC approved the revised VA DP by Amendment No. 12 to License R-57, dated January 8, 2015 (ADAMS Package Accession No. ML14318A624).
As required by the approved DP, the VA submitted a Final Status Survey (FSS) Plan, dated October 15, 2015 (ADAMS Accession No. ML15299A385), as a supplement to the DP. By letter dated November 4, 2015 (ADAMS Accession No. ML15302A508), the NRC reviewed the FSS Plan and determined that it was consistent with the guidance in NUREG-1757, “Consolidated Decommissioning Guidance” (ADAMS Accession No. ML063000243); and NUREG-1575, “Multi-Agency Radiation Survey and Site Investigation Manual” (ADAMS Accession No. ML082470583).
On February 29, 2016, the VA submitted its FSS Report (ADAMS Accession No. ML16068A254) and requested termination of the AJBRF license. The report demonstrates that the criteria for termination, set forth in its DP and FSS Plan, have been satisfied. The FSS Report indicates that all individual radiological measurement determinations made throughout the facility for surface contamination (both total and removable) were found to be less than the criteria established in the DP. Similarly, all sample results were found to be less than the volumetric radionuclide concentration criteria established in the DP. Additionally, all the radioactive wastes have been removed from the facility, and documentation regarding its removal disposition is provided in the FSS Report. As such, the NRC staff determined that the survey results in the report comply with the criteria in the NRC-approved DP and the release criteria in subpart E of part 20 of title 10 of the
On September 21-23, 2015 (ADAMS Accession No. ML15316A495), Region IV of the NRC conducted a routine safety inspection at the AJBRF. The inspection was an examination of the VA's licensed activities as they relate to radiation safety and to compliance with the Commission's regulations and the license conditions, including the DP and FSS Plan. The inspection consisted of observations by the inspectors, interviews with personnel, and a review of procedures and records. No health and safety concerns were identified during these inspections.
On December 8-9, 2015, Oak Ridge Associated Universities (ORAU) performed confirmatory surveys. The survey activities performed included cursory gamma scans, 100 percent of the facility floor, judgment scans of surfaces (based on unusual appearance, location relative to known contaminated areas, and high potential for residual radioactivity), direct measurements, and smear collection (wet and dry). The ORAU provided the results of the confirmatory surveys in a report dated February 24, 2016 (ADAMS Accession No. ML16173A165). The ORAU report showed that results of all samples were less than the volumetric radionuclide concentration criteria established in the DP.
Based on observations during NRC inspections, decommissioning activities have been carried out by the VA in accordance with the approved AJBRF DP. Additionally, NRC staff evaluated the VA's FSS Report and the results of the independent confirmatory survey conducted by ORAU. All FSS Report measurements were found to be less than the DP and FSS Plan criteria, and ORAU's analytical results from independent confirmatory surveys were consistent with the VA's FSS Report results. Therefore, the NRC staff has concluded that the VA AJBRF has completed decommissioning in accordance with the approved DP. The NRC staff evaluated the VA AJBRF FSS Report, DP, and associated documentation and determined that the facilities and site are suitable for unrestricted release in accordance with the criteria for license termination in 10 CFR part 20, subpart E. By letter dated July 22, 2016 (ADAMS Accession No. ML16173A093), the licensee was informed of the license termination.
Therefore, pursuant to 10 CFR 50.82(b)(6), Facility Operating License No. R-57 is terminated.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on NuScale will hold a meeting on August 16, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of portions that may be closed to protect information that is proprietary pursuant to 5 U.S.C. 552b(c)(4). The agenda for the subject meeting shall be as follows:
The Subcommittee will hear a briefing on the NRC staff's NuScale Safety Focused Review approach in preparation of the NuScale Design Certification application. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Mike Snodderly (Telephone 301-415-2241 or Email:
Detailed meeting agenda and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
Postal Service.
Notice; assignment of country groups.
The Governors of the Postal Service have assigned country price groups within the Mail Classification Schedule to provide Priority Mail Express International service to Cuba effective August 28, 2016.
Jeffrey A. Rackow, 202-268-6687.
The Governors' Decision in connection with the assignment of country groups is reprinted below.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend subparagraph (c)(2) of Rule 11.230 (Order Execution) to rename the Router Plus routing option to Router.
The text of the proposed rule change is available at 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 these statement [sic] may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to change the references in Rule 11.230(c)(2) from “Router Plus” to “Router,” consistent with the Exchange's re-branding of its routing options prior to Exchange launch. The name change from Router Plus to Router is a non-substantive change. No changes to the functionality of this routing option are proposed.
Currently, subparagraph (c) of Rule 11.230 describes two routing options offered by the Exchange: Router Basic and Router Plus. The proposed change would merely rename Router Plus to Router. Router Basic is a routing option under which an order is sent to destinations on the System routing table. If shares remain unexecuted after routing, they are posted on the Order Book or canceled, as per User instruction. Once posted on the Order Book, the unexecuted portion of such an order is eligible for the re-sweep behavior described in paragraph (3), market conditions permitting. Router Plus (which as proposed, would be retitled Router) is a routing option under which an order is sent to the Order Book to check for available shares and then any remainder is sent to destinations on the System routing table. If shares remain unexecuted after routing, they are posted on the Order Book or canceled, as per User instruction. Once posted on the Order Book, the unexecuted portion of such an order is eligible for the re-sweep behavior described in paragraph (3), market conditions permitting. As stated above, the proposed change would merely rename Router Plus to Router.
IEX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act
Specifically, the proposed rule change is a stylistic change to remove the word “plus” in the name of the router option consistent with the Exchange's re-branding of its routing options prior to Exchange launch. Accordingly, the Exchange believes this nonsubstantive change will make the Exchange's rules clearer for market participants by removing unnecessary verbiage.
IEX does not believe that the proposed rule change will impose any burden on competition, because the Exchange is not proposing any substantive changes to Rule 11.230(c)(2).
Written comments were neither solicited nor received.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A)
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 necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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 (“Act”),
The Exchange proposes to adopt Rule 15.120 and entitle it “Collection of Exchange Fees and Other Claims and Billing Policy” that (a) requires each IEX Member, and all applications for membership, to provide a clearing account number for an account at the National Securities Clearing Corporation (“NSCC”) for purposes of permitting the Exchange to debit certain fees, fines, charges and/or other monetary sanctions or other monies due and owing to the Exchange; and (b) require [sic] IEX Members to submit billing disputes within a certain time period.
The text of the proposed rule change is available at 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 these statement [sic] may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to adopt Rule 15.120 to (a) require each IEX Member, and all applications for membership, to provide a clearing account number for an account at the National Securities Clearing Corporation (“NSCC”) for purposes of permitting the Exchange to debit certain fees, fines, charges and/or other monetary sanctions or other monies due and owing to the Exchange; and (b) require IEX Members to submit billing disputes within a certain time period.
As proposed, paragraph (a) of Rule 15.120 requires IEX Members, and all applicants for membership, to provide a
As proposed, the Exchange will send a monthly electronic invoice by email to each Member, generally by the 12th day of each month for the Debit Amount due to IEX for the prior month. IEX will also send files to NSCC each month by the 28th day of each month to initiate the debit of the Debit Amount due to IEX as stated on the Member's invoice for the prior month. If the 28th day of the month is not a business day, IEX will send the files to NSCC by the preceding business day. IEX anticipates that NSCC will process the debits on the day it receives the file or the following business day. Because Members will receive an invoice approximately two weeks before the debit date, Members will have adequate time to contact IEX staff with any questions concerning their invoice. If an IEX Member disagrees with the invoice in whole or in part, the Exchange would not commence the debit for the disputed amount until the dispute is resolved. Specifically, the Exchange will not include the disputed amount (or the entire invoice if it is not feasible to identify the disputed amounts) in the NSCC Debit Amount if the Member has provided written notification of the dispute to the IEX accounting department at
Once NSCC receives the file from the Exchange, NSCC would proceed to debit the amounts indicated from the clearing Members' account and disburse such amounts to the Exchange. In the instance where the Member clears through an IEX clearing member, the Exchange understands that the estimated transaction fees owed to the Exchange are typically debited by the IEX clearing Member on a daily basis using daily transaction detail reports provided by the Exchange to the IEX clearing Member in order to ensure adequate funds have been escrowed.
The Exchange believes that the proposed debiting process for IEX members would create an efficient method of collecting undisputed or final fees, fines, charges and/or other monetary sanctions or monies due and owing to the Exchange. Collection matters could divert staff resources away from the Exchange's regulatory and business purposes. Moreover, the Exchange believes that it is reasonable to provide for a $10,000 limitation on pre-debit billing disputes since it would be inefficient to delay a direct debit for a
In addition to, and separate from, the pre-debit dispute process described above, the Exchange also proposes to adopt a billing policy, pursuant to paragraph (b) of Rule 15.120 to require all pricing disputes, with respect to fees payable to the Exchange,
The Exchange expects that the proposed policy will provide a potential cost savings to the Exchange in that it would alleviate administrative burdens related to belated billing disputes, which could divert staff resources away from the Exchange's regulatory and business purposes. A similar policy is in place today at the NASDAQ Stock Market.
IEX believes that the proposed rule change is consistent with Section 6(b)
The Exchange believes that its proposal to debit NSCC accounts is reasonable because it would ease the IEX Member's administrative burden in paying monthly invoices, avoid overdue balances and provide efficient collection from all IEX members who owe monies to the Exchange. Moreover, the Exchange believes that the 10-day minimum time frame that will be provided to Members to dispute invoices is reasonable and adequate to enable Members to identify potentially erroneous charges. In addition, the Exchange believes that the $10,000 limitation on pre-debit billing disputes is reasonable because it would be inefficient to delay a direct debit for a
Further, the Exchange believes that the requirement that billing disputes for specified fees be submitted to the Exchange within sixty days from receipt of the invoice will set objective standards, will be fair to Members, and that sixty days is ample time to review an invoice and dispute any pricing related to the transactions for that time period. It is also expected to lower the Exchange's administrative costs. An identical provision is applicable to NASDAQ Stock Market, NASDAQ OMX BX and NASDAQ OMX Phlx.
IEX 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. With this proposal, the proposed debit process and billing policy would apply uniformly to all IEX members.
Further, this proposal is expected to provide a cost savings to the Exchange in that it would alleviate administrative processes related to the collection of monies owed to the Exchange by Members. Collection matters divert staff resources away from the Exchange's regulatory and business purposes. In addition, the debiting process would mitigate against IEX Member accounts becoming overdue.
The Exchange does not believe that the proposal will create an intermarket burden on competition since the Exchange will only debit fees (other than
Written comments were neither solicited nor received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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 necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change 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.
On May 24, 2016, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade Shares of the Fund under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange. The Fund will be an actively managed exchange-traded fund (“ETF”). The Shares will be offered by Virtus ETF Trust II (“Trust”), which is registered with the Commission as an open-end management investment company.
The Exchange has made the following representations and statements in describing the Fund and its investment strategy, including the Fund's portfolio holdings and investment restrictions.
Under normal circumstances,
The Fund will be actively-managed through the selection, at any given time, of approximately 80-100 common stocks from the Index based on quantitative and qualitative factors, including an assessment of the following characteristics: cash flow return on invested capital; earnings quality and momentum; operational quality; corporate governance policies; and capital stewardship. The Fund may invest in such Index components by directly purchasing shares of common stock or investing in American
Although the Fund will focus on investment in securities in the Index as described above, the Fund may also invest in common stocks of other Japanese companies with characteristics similar to those listed on the Index, as determined by the Sub-Adviser. With respect to such common stocks, the Fund will only invest in securities that are listed on the Tokyo Stock Exchange
Positions may be reduced or removed when the Sub-Adviser determines that a security has become overweighted within the Fund's portfolio, that the security's prospects have adversely changed, that the Fund should raise funds for new or other investments, or that there are more attractive opportunities.
While the Fund, under normal circumstances, will invest at least 80% of its assets in common stock of Japanese companies listed in the Index, common stock of certain other Japanese companies and ADRs, as described above, the Fund may invest its remaining assets in the securities and financial instruments described below.
The Fund may invest in securities index futures contracts and foreign currency futures contracts.
The Fund may also invest in forward contracts and non-deliverable forward (“NDF”) contracts on the foreign currency spot market.
The Fund may invest in when-issued and forward-commitment securities (which means that delivery and payment would take place a number of days after the date of the commitment to purchase), if the Fund holds sufficient liquid assets to meet the purchase price.
The Fund may invest in the following equity securities: common stocks traded on U.S. or Japanese securities exchanges (other than the Tokyo Stock Exchange); common stocks traded in the over-the-counter market; U.S. and foreign exchange-traded preferred stocks; U.S. and foreign exchange-traded convertible preferred stocks; U.S. and foreign exchange-traded convertible bonds; U.S. and foreign exchange-traded warrants; and U.S. and foreign exchange-traded rights. The Fund will not invest in ADRs on any of these equity securities.
In addition, the Fund may invest in, to the extent permitted by Section 12(d)(1) of the 1940 Act and the rules thereunder, other exchange-traded and non-exchange traded open-end investment companies, including other ETFs.
The Fund may invest in Currency Trust Shares.
The Fund may invest in real estate investment trusts (“REITs”) traded on U.S. exchanges and Japanese exchanges.
The Fund may enter into short sales of securities. The Fund may also enter into short sales “against the box,”
The Fund may invest in the following money market instruments: U.S. Government obligations; corporate debt obligations
The Fund may invest assets in shares of money market funds.
The Fund may, from time to time, take temporary defensive positions that are inconsistent with its principal investment strategies in an attempt to respond to adverse market, economic, political, or other conditions. In such circumstances, the Fund may also hold up to 100% of its portfolio in cash and cash equivalent positions.
The Fund intends to maintain the required level of diversification and otherwise conduct its operations so as to qualify as a “regulated investment company” for purposes of the Internal Revenue Code of 1986.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid assets.
The Fund will not invest in options or swaps.
The Fund's investments will be consistent with the Fund's investment objective and will not be used to produce leveraged returns. That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
After careful review, the Commission finds that the Exchange's proposal is consistent with the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission also finds that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Exchange Act,
According to the Exchange, quotation and last-sale information for the Shares will be available via the Consolidated Tape Association (“CTA”) high-speed line.
Intra-day, closing, and settlement prices of U.S. exchange-listed equity
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
The Exchange represents that it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities.
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600.
(2) The Exchange's surveillance 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 securities laws applicable to trading on the Exchange.
(3) The Exchange and FINRA will communicate as needed regarding trading in the Shares, ETFs, and certain exchange-traded equity securities underlying the Shares with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares, ETFs and certain exchange-traded equity securities underlying the Shares from those markets and entities. In addition, the Exchange may obtain information regarding trading in the Shares, ETFs, and certain exchange-traded equity securities underlying the Shares from markets and other entities with which the Exchange has in place a comprehensive surveillance sharing agreement (“CSSA”). The Exchange is able to access from FINRA, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's Trade Reporting and Compliance Engine.
(4) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(5) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in creation unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated
(6) For initial and continued listing, the Fund will be in compliance with Rule 10A-3 under the Act,
(7) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets.
(8) Not more than 10% of the net assets of the Fund in the aggregate invested in equity securities (other than non-exchange-traded investment company securities) shall consist of equity securities whose principal market is not a member of the ISG or is a market with which the Exchange does not have a CSSA. Furthermore, not more than 10% of the net assets of the Fund in the aggregate invested in futures contracts shall consist of futures contracts whose principal market is not a member of ISG or is a market with which the Exchange does not have a CSSA. No more than 10% of the net assets of the Fund will be invested in ADRs that are not exchange-listed.
(9) The Fund's investments will be consistent with the Fund's investment objective and will not be used to produce leveraged returns. The Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
(10) All ETFs in which the Fund invests will be listed and traded in the U.S. on a national securities exchange and the Fund will not invest in inverse ETFs or in leveraged (
(11) The Fund will not invest in options or swaps.
(12) A minimum of 100,000 Shares for the Fund will be outstanding at the commencement of trading on the Exchange.
The Exchange represents that all statements and representations made in the filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, 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, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements.
This approval order is based on all of the Exchange's representations, including those set forth above, in the Notice, and in Amendment No. 1 to the proposed rule change. The Commission notes that the Fund and the Shares must comply with the requirements of NYSE Arca Equities Rule 8.600, including those set forth in this proposed rule change, as modified by Amendment No. 1, to be listed and traded on the Exchange on an initial and continuing basis.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with Section 6(b)(5) of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Exchange 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 proposes to amend its Fees Schedule. The text of the proposed rule change is available on 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 aspects of such statements.
The Exchange proposes to amend its Fees Schedule.
The Exchange believes the increased amounts will incentivize more volume to the Exchange. Specifically, the proposed increased rebates are intended to encourage C2 Market-Makers to quote more often and attract market participants to send orders to the Exchange, which will then incent Takers to trade with those orders and quotes. The Exchange notes that the proposed Maker rebate amounts are similar to and in line with the amounts currently assessed for simple, non-complex orders in equity, multiply-listed index, ETF and ETN options classes at other Exchanges.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed rule change is reasonable because the proposed change provides additional rebates to Makers and is designed to attract additional volume to the Exchange, which benefits all market participants.
The Exchange believes that it is equitable and not unfairly discriminatory to provide higher rebates to Public Customers as compared to other market participants (other than C2 Market-Makers for penny classes) because Public Customer order flow enhances liquidity on the Exchange for the benefit of all market participants. Specifically, Public Customer liquidity benefits all market participants by providing more trading opportunities, which attracts Market-Makers. An increase in the activity of these market participants in turn facilitates tighter spreads, which may cause an additional corresponding increase in order flow from other market participants. Moreover, the options industry has a long history of providing preferential pricing to Public Customers. Finally, all fee and rebate amounts listed as applying to Public Customers will be applied equally to all Public Customers.
The Exchange believes that it is equitable and not unfairly discriminatory to provide higher rebates to Market-Makers as compared to other market participants other than Public Customers (for non-penny options) because Market-Makers, unlike other C2 market participants, take on a number of obligations, including quoting obligations, that other market participants do not have. Further, these lower fees and higher rebates offered to Market-Makers are intended to incent Market-Makers to quote and trade more on the Exchange, thereby providing more trading opportunities for all market participants. Finally, all rebate amounts listed as applying to Market-Makers will be applied equally to all Market-Makers.
The Exchange also believes it is equitable and not unfairly discriminatory to provide lower rebates to all other origins (
The Exchange believes it's reasonable, equitable and not unfairly discriminatory to continue to assess no fees and offer no rebates for Trades on the Open because trades on the Open involve the matching of undisplayed pre-opening trading interest. As such, there is, in effect, no Maker or Taker activity occurring. Additionally, the Exchange would like to encourage users to submit pre-opening orders.
The Exchange lastly believes it's equitable and not unfairly discriminatory to assess higher rebates for non-Penny option classes than Penny option classes because Penny classes and non-Penny classes offer different pricing, liquidity, spread and trading incentives. The spreads in Penny classes are tighter than those in non-Penny classes (which trade in $0.05 increments). The wider spreads in non-Penny option classes allow for greater profit potential.
C2 does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, while different rebates are assessed to different market participants in some circumstances, these different market participants have different obligations and different circumstances (as described in the “Statutory Basis” section above). For example, Public Customers order flow, as discussed above, enhances liquidity on the Exchange for the benefit of all market participants. There is also a history in the options markets of providing preferential treatment to Public Customers. Additionally, Market-Makers have quoting obligations that other market participants do not have.
The Exchange does not believe that the proposed change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because it only applies to trading on the Exchange. Further, the proposed rebate amounts are similar to those assessed for similar orders by other exchanges,
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 754 of the Phlx rules. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend Rule 754, which deals with employees' discretion as to customers' accounts and retitle the rule “Discretionary Power as to Customers' Accounts.” As discussed below, the Exchange has determined that these rules are outdated and it is more appropriate to follow the corresponding FINRA rule on this subject matter. Consequently, the Exchange is proposing to amend Rule 754 in the Phlx rules.
Rule 754 concerns employees' discretion as to customers' accounts. The rule requires that no member or member organization shall permit any of his or its employees or any employee of another member or member organization to exercise discretion in the handling of a transaction for a customer of such member organization and no member, member organization, partner, officer or stockholder therein shall delegate to any such employee any discretionary power vested by a customer in such member, organization, partner, officer, or stockholder, unless in either case the prior written authorization of the customer has been received and, if such discretionary authority runs, directly or by re-delegation, to an employee of another member or member organization, the carrying organization must obtain the prior written consent of the employer of the individual authorized to exercise discretion. The rule also requires that a member, partner, or officer in the carrying organization shall approve and initial each discretionary order entered by an employee of such organization or of another member or member organization on the day the order is entered.
Further, the provisions of the rule do not apply to discretion as to the price at which or the time when an order given by a customer for the purchase or sale of a definite amount of a specified security shall be executed.
The Exchange believes that the updated language in FINRA Rule 2510 would be more appropriate. The language in FINRA Rule 2510 is more comprehensive in that it also covers excessive transactions; the authorization and acceptance of accounts; and the approval and review of transactions for the benefit of customers. The text of the rule is available on the FINRA Web site.
Furthermore, The Nasdaq Stock Market LLC (“NASDAQ”) references NASD Rule 2510 (which mirrors FINRA Rule 2510) in place of providing alternative language at NASDAQ Rule 2510, and substantially similar language is used by The New York Stock Exchange, Inc. (“NYSE”) at NYSE Rule 408. Therefore changing the rule as proposed would ensure consistency for market participants providing customer account statements to customers which would also benefit customers and avoid the potential for confusion.
Finally, FINRA Rule 2510 has been updated more frequently over the last few years to address issues raised in response to market participant feedback. This feedback is from a broader market participant base than that which is just available to the Exchange, and so making direct reference to this rule is likely to better serve market participants, customers and investors as a whole on an ongoing basis.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes the proposed changes are consistent with just and equitable principles of trade because they update and delete outdated and potentially confusing rule text. Updating Rule 754 will lead to a more comprehensive rule, which ensures consistency across markets and products, and lends clarity, consistency and certainty to market participants, customers and investors alike. By referencing an existing FINRA rule, the Exchange is also future proofing the rule so that changes made to it to address a wider range of market feedback than that which is just available to the Exchange will be taken into account automatically and consistently.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather it is designed to promote competition among exchanges by removing archaic rules in comparison to the rules of other exchanges. Last, the proposed changes promote clarity in the application of the Exchange's rule by updating the rule to bring it in line with other similar industry rules and eliminating unneeded rule text.
No written comments were either solicited or 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
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
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.
Securities and Exchange Commission (“Commission”).
Notice of application for an order approving the substitution of certain securities pursuant to section 26(c) of the Investment Company Act of 1940, as amended (“Act”) and an order of exemption pursuant to section 17(b) of the Act from section 17(a) of the Act.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants, 51 Madison Avenue, New York, NY 10010.
Christine Y. Greenlees, Senior Counsel, at (202) 551-6879, or David J. Marcinkus, Branch Chief, at (202) 551-6821 (Chief Counsel's Office, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. NYLIAC is a Delaware stock life insurance company licensed to sell life, accident and health insurance, and annuities in the District of Columbia and all states. NYLIAC is an indirect wholly-owned subsidiary of New York Life Insurance Company, a mutual life insurance company (“New York Life”).
2. NYLIAC serves as the depositor of the Separate Accounts, which are segregated asset accounts of NYLIAC established under Delaware law pursuant to resolutions of NYLIAC's Board of Directors to fund the Contracts.
3. Each Separate Account meets the definition of “separate account” as defined in section 2(a)(37) of the Act. Each Separate Account, except for Private VUL I and Private VUL II, is registered under the Act as a unit investment trust. Private VUL I and Private VUL II are exempt from registration under the Act pursuant to sections 3(c)(1) and 3(c)(7) of the Act.
4. Interests under the Contracts, except for Contracts issued through Private VUL I and Private VUL II, are registered under the Securities Act of 1933, as amended (the “1933 Act”). Contracts issued through Private VUL I and Private VUL II are sold without registration under the 1933 Act in reliance on the private offering exemption of section 4(2) of the 1933 Act and Regulation D thereunder.
5. Each Separate Account is divided into subaccounts (each a “Subaccount,” collectively, the “Subaccounts”). Each Subaccount invests in the securities of a single portfolio of an underlying mutual fund (“Portfolio”). Contract owners and participants in group Contracts (each a “Contract Owner” and collectively, the “Contract Owners”) may allocate some or all of their Contract value to one or more Subaccounts that are available as investment options under the Contracts.
6. Under the Contracts, NYLIAC reserves the right to substitute, for the shares of a Portfolio held in any Subaccount, the shares of another Portfolio. The prospectuses or offering documents, as applicable, for the Contracts include appropriate disclosure of this reservation of right.
7. The Trust is organized as a Delaware statutory trust and is registered with the Commission as an open-end management investment company under the Act. The Trust currently consists of 31 series (“Series”). Each Series may offer three classes of shares, namely the Initial Class, Service Class and Service 2 Class. For each Series offering Service Class and Service 2 Class shares, the Trust has adopted a Distribution and Service Plan for the Service Class and Service 2 Class shares pursuant to Rule 12b-1 under the Act. The Replacement Portfolio (defined below) is a Series of the Trust.
8. New York Life Investment Management LLC (the “Manager”), an indirect wholly-owned subsidiary of New York Life, serves as the investment manager of each of the Series of the Trust. The Manager is a Delaware limited liability company registered as an investment adviser under the Investment Advisers Act of 1940.
9. The Trust and the Manager may rely on an order from the Commission that permits the Manager, subject to certain conditions, including approval of the Trust's board of trustees (“Board”), including a majority of trustees who are not “interested persons,” as defined in section 2(a)(19) of the Act, and without the approval of shareholders, to: (i) Select certain wholly-owned and non-affiliated investment sub-advisers (each, a “Subadvisor” and collectively, the “Subadvisors”) to manage all or a portion of the assets of each Series pursuant to an investment sub-advisory agreement with each Subadvisor; and (ii) materially amend sub-advisory agreements with the Subadvisors.
10. NYLIAC, on behalf of itself and its Separate Accounts, proposes to exercise its contractual right to substitute shares of one Portfolio for that of another by replacing the shares of the Royce Micro-Cap Portfolio (Investment Class) (the “Existing Portfolio”)
11. Applicants state that the proposed Substitution is part of an ongoing effort by NYLIAC to make its Contracts more attractive to existing and prospective Contract Owners. The Section 26 Applicants believe the proposed Substitution will help to accomplish these goals for several reasons. The Section 26 Applicants believe, based on its estimates for the current year, the total annual operating expenses for the Replacement Portfolio will be lower than those of the Existing Portfolio, which the Section 26 Applicants believe will appeal to both existing and prospective Contract Owners. In addition, subject to shareholder approval of the manager of managers arrangement, Applicants state that the Proposed Substitution will result in more investment options under the Contracts having the improved portfolio manager selection afforded by the Manager of Managers Order, which the Section 26 Applicants believe will appeal to both existing and prospective Contract Owners. Finally, Applicants state that the proposed Substitution is designed to provide Contract Owners with the ability to continue their investment in a similar investment option without interruptions and at no additional cost to them. In this regard, NYLIAC or an affiliate will bear all expenses and transaction costs incurred in connection with the proposed Substitution and related filings and notices, including legal, accounting, brokerage, and other fees and expenses.
12. The proposed Substitution will be described in supplements to the applicable prospectuses for the Contracts filed with the Commission or in other supplemental disclosure documents (collectively, “Supplements”) and delivered to all affected Contract Owners at least 30 days before the date the proposed Substitution is effected (the “Effective Date”). The Supplements will give Contract Owners notice of NYLIAC's intent to substitute shares of the Existing Portfolio as described in the application on the Effective Date. The Supplements also will advise Contract Owners that for at least thirty (30) days before the Effective Date, Contract Owners are permitted to transfer all of or a portion of their Contract value out of any Subaccount investing in the Existing Portfolio (“Existing Portfolio Subaccount”) to any other available Subaccounts offered under their Contracts without the transfer being counted as a transfer for purposes of transfer limitations and fees that would otherwise be applicable under the terms of the Contracts.
13. In addition, each Supplement will (a) instruct Contract Owners how to submit transfer requests in light of the proposed Substitution; (b) advise Contract Owners that any Contract value remaining in the Existing Portfolio Subaccount on the Effective Date will be transferred to the Subaccount investing in the Replacement Portfolio (“Replacement Portfolio Subaccount”), and that the proposed Substitution will take place at relative net asset value; (c) inform Contract Owners that for at least thirty (30) days following the Effective Date, NYLIAC will permit Contract Owners to make transfers of Contract value out of the Replacement Portfolio Subaccount to any other available Subaccounts offered under their Contracts without the transfer being counted as a transfer for purposes of transfer limitations and fees that would otherwise be applicable under the terms of the Contracts; and (d) inform Contract Owners that, except as described in the market timing limitations section of the relevant prospectus, NYLIAC will not exercise any rights reserved by it under the Contracts to impose additional restrictions on transfers out of the Replacement Portfolio Subaccount for at
14. NYLIAC will send Contract Owners the prospectus for the Replacement Portfolio in accordance with applicable legal requirements and at least 30 days prior to the Effective Date. The prospectus for the Replacement Portfolio will disclose the existence, substance and effect of the Manager of Managers Order, and will disclose that the Replacement Portfolio may not rely on the Manager of Managers Order without first obtaining shareholder approval. The Replacement Portfolio will not rely on the Manager of Managers Order unless such action is approved by a majority of the Replacement Portfolio's outstanding voting securities, as defined in the Act, at a meeting whose record date is after the proposed Substitution has been effected.
15. In addition to the Supplement distributed to Contract Owners, within five (5) business days after the Effective Date, Contract Owners will be sent a written confirmation of the completed proposed Substitution in accordance with rule 10b-10 under the Securities Exchange Act of 1934, as amended. The confirmation statement will include or be accompanied by a statement that reiterates the free transfer rights disclosed in the Supplement.
16. The proposed Substitution will take place at the Existing and Replacement Portfolios' relative per share net asset values determined on the Effective Date in accordance with section 22 of the Act and rule 22c-1 under the Act. Accordingly, applicants state that the proposed Substitution will have no negative financial impact on any Contract Owner. The proposed Substitution will be effected by having the Existing Portfolio Subaccount redeem its Existing Portfolio shares in cash and/or in-kind on the Effective Date at net asset value per share and purchase shares of the Replacement Portfolio at net asset value per share calculated on the same date.
17. NYLIAC or an affiliate will pay all expenses and transaction costs incurred in connection with the proposed Substitution and related filings and notices, including legal, accounting, brokerage, and other fees and expenses. Applicants state that no costs of the proposed Substitution will be borne directly or indirectly by Contract Owners. Applicants state that Contract Owners will not incur any fees or charges as a result of the proposed Substitution, nor will their rights or the obligations of NYLIAC under the Contracts be altered in any way. Applicants state that the proposed Substitution will not cause the fees and charges under the Contracts currently being paid by Contract Owners to be greater after the proposed Substitution than before the proposed Substitution.
18. The Section 26 Applicants further agree that the Manager will enter into a written contract with the Replacement Portfolio whereby during the two years following the Effective Date the annual net operating expenses of the Replacement Portfolio will not exceed the annual net operating expenses of the Existing Portfolio for the fiscal year ended December 31, 2015. The Section 26 Applicants further agree that separate account charges for any Contract owner on the Effective Date will not be increased at any time during the two year period following the Effective Date.
1. The Section 26 Applicants request that the Commission issue an order pursuant to section 26(c) of the Act approving the proposed Substitution. Section 26(c) of the Act prohibits any depositor or trustee of a unit investment trust that invests exclusively in the securities of a single issuer from substituting the securities of another issuer without the approval of the Commission. Section 26(c) provides that such approval shall be granted by order of the Commission if the evidence establishes that the substitution is consistent with the protection of investors and the purposes of the Act.
2. Applicants submit that the proposed Substitution meets the standards set forth in section 26(c) and that, if implemented, the Substitution would not raise any of the concerns underlying that provision. Applicants state that the investment objectives of the Existing Portfolio and the Replacement Portfolio are identical, and the principal investment strategies and principal risks of the Existing Portfolio and the Replacement Portfolio are substantially similar. The Applicants also state that the total annual operating expenses and the aggregate management fees and 12b-1 fees, if any, of each class of the Replacement Portfolio are expected to be lower than the respective total annual operating expenses and management fees of the Existing Portfolio.
3. Applicants also assert that the proposed Substitution is consistent with the principles and purposes of section 26(c) and does not entail any of the abuses that section 26(c) is designed to prevent. Applicants state that the proposed Substitution will not result in the type of costly forced redemptions that section 26(c) was intended to guard against and is consistent with the protection of investors and the purposes fairly intended by the Act.
4. The Section 17 Applicants request that the Commission issue an order pursuant to section 17(b) of the Act exempting them from section 17(a) of the Act to the extent necessary to permit them to carry out the In-Kind Transactions.
5. Section 17(a)(1) of the Act prohibits any affiliated person of a registered investment company, or an affiliated person of an affiliated person, acting as principal, from knowingly selling any security or other property to such registered investment company. Section 17(a)(2) of the Act prohibits any of the persons described above, acting as principal, from knowingly purchasing any security or other property from such registered investment company.
6. Section 17(b) of the Act provides that the Commission may, upon application, issue an order exempting any proposed transaction from the provisions of section 17(a) if evidence establishes that: (1) The terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned; (2) the proposed transaction is consistent with the policy of each registered investment company concerned, as recited in its registration statement and reports filed under the Act; and (3) the proposed transaction is consistent with the general purposes of the Act.
7. The Existing Portfolio and the Replacement Portfolio may be deemed to be affiliated persons of one another, or affiliated persons of an affiliated person. Shares held by a separate account of an insurance company are legally owned by the insurance company. Currently, NYLIAC, through its Separate Accounts, owns more than 25% of the shares of the Existing Portfolio, and therefore may be deemed to be a control person of the Existing Portfolio. In addition, the Manager, as investment adviser to the Replacement Portfolio, may be deemed to be a control person thereof. Because NYLIAC and the Manager are under common control, entities that they control likewise may be deemed to be under common control, and thus affiliated persons of each other, notwithstanding the fact that the Contract Owners may be considered the beneficial owners of those shares held in the Separate Accounts.
8. The Existing Portfolio and the Replacement Portfolio also may be deemed to be affiliated persons of affiliated persons. Regardless of whether NYLIAC can be considered to control the Existing and Replacement Portfolios,
9. The proposed In-Kind Transactions, therefore, could be seen as the indirect purchase of shares of the Replacement Portfolio with portfolio securities of the Existing Portfolio and conversely the indirect sale of portfolio securities of the Existing Portfolio for shares of the Replacement Portfolio. The proposed In-Kind Transactions also could be categorized as a purchase of shares of the Replacement Portfolio by the Existing Portfolio, acting as principal, and a sale of portfolio securities by the Existing Portfolio, acting as principal, to the Replacement Portfolio. In addition, the proposed In-Kind Transactions could be viewed as a purchase of securities from the Existing Portfolio and a sale of securities to the Replacement Portfolio by NYLIAC (or the Separate Accounts), acting as principal. If characterized in this manner, the proposed In-Kind Transactions may be deemed to contravene Section 17(a) due to the affiliated status of these entities.
10. The Section 17 Applicants submit that the terms of the proposed In-Kind Transactions, including the consideration to be paid and received, are reasonable, fair, and do not involve overreaching because: (1) The proposed In-Kind Transactions will not adversely affect or dilute the interests of Contract Owners; and (2) the proposed In-Kind Transactions will comply with the conditions set forth in rule 17a-7 and the Act, other than the requirement relating to cash consideration. Even though the proposed In-Kind Transactions will not comply with the cash consideration requirement of paragraph (a) of Rule 17a-7, the terms of the proposed In-Kind Transactions will offer to the Existing and Replacement Portfolios the same degree of protection from overreaching that Rule 17a-7 generally provides in connection with the purchase and sale of securities under that Rule in the ordinary course of business. In particular, the Section 17 Applicants cannot effect the proposed In-Kind Transactions at a price that is disadvantageous to either the Existing Portfolio or the Replacement Portfolio, and the proposed In-Kind Transactions will not occur absent an exemptive order from the Commission.
11. The Section 17 Applicants also submit that the proposed In-Kind Transactions are, or will be, consistent with the policies of the Existing Portfolio and the Replacement Portfolio as stated in their respective registration statements and reports filed with the Commission. Finally, the Section 17 Applicants submit that the proposed In-Kind Transactions are consistent with the general purposes of the Act.
The Section 26 Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The proposed Substitution will not be effected unless NYLIAC determines that: (a) The Contracts allow the substitution of shares of registered open-end investment companies in the manner contemplated by the application; (b) the proposed Substitution can be consummated as described in the application under applicable insurance laws; and (c) any regulatory requirements in each jurisdiction where the Contracts are qualified for sale have been complied with to the extent necessary to complete the proposed Substitution.
2. NYLIAC or its affiliates will pay all expenses and transaction costs of the proposed Substitution, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses. No fees or charges will be assessed to the Contract Owners to effect the proposed Substitution.
3. The proposed Substitution will be effected at the relative net asset values of the respective shares in conformity with section 22(c) of the Act and rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The proposed Substitution will be effected without change in the amount or value of any Contracts held by affected Contract Owners.
4. The proposed Substitution will in no way alter the tax treatment of affected Contract Owners in connection with their Contracts, and no tax liability will arise for affected Contract Owners as a result of the proposed Substitution.
5. The rights or obligations of the Section 26 Applicants under the Contracts of affected Contract Owners will not be altered in any way. The proposed Substitution will not adversely affect any riders under the Contracts since the Replacement Portfolio is an allowable investment option for use with such riders.
6. Affected Contract Owners will be permitted to make at least one transfer of Contract value from the Subaccount investing in the Existing Portfolio (before the Effective Date) or the Replacement Portfolio (after the Effective Date) to any other available investment option under the Contract without charge for a period beginning at least 30 days before the Effective Date through at least 30 days following the Effective Date. Except as described in any market timing/short-term trading provisions of the relevant prospectus, NYLIAC will not exercise any right it may have under the Contract to impose restrictions on transfers between the Subaccounts under the Contracts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Effective Date through at least 30 days following the Effective Date.
7. All affected Contract Owners will be notified, at least 30 days before the Effective Date about: (a) The intended substitution of the Existing Portfolio with the Replacement Portfolio; (b) the intended Effective Date; and (c) information with respect to transfers as set forth in Condition 6 above. In addition, NYLIAC will deliver to all affected Contract Owners, at least 30 days before the Effective Date, a prospectus for the Replacement Portfolio.
8. NYLIAC will deliver to each affected Contract Owner within five (5) business days of the Effective Date a written confirmation which will include: (a) A confirmation that the Proposed Substitution was carried out as previously notified; (b) a restatement of the information set forth in the Supplements; and (c) before and after account values.
9. The Section 26 Applicants will cause the Manager to enter into a written contract with the Replacement Portfolio, whereby, during the two (2) years following the Effective Date, the annual net operating expenses of the Replacement Portfolio will not exceed the annual net operating expenses of the Existing Portfolio for the fiscal year ended December 31, 2015. The Section 26 Applicants further agree that separate account charges for any Contract owner on the Effective Date will not be increased at any time during the two year period following the Effective Date.
10. The Replacement Portfolio will not rely on the Manager of Managers Order unless such action is approved by a majority of the Replacement Portfolio's outstanding voting securities,
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, August 3, 2016 at 2:00 p.m., in the Auditorium (L-002) at the Commission's headquarters building, to hear oral argument in an appeal from an initial decision of an administrative law judge by respondents Harding Advisory LLC and Wing F. Chau.
On January 12, 2015, the ALJ found that Respondents Harding Advisory LLC, a registered investment adviser, and its principal, Wing F. Chau, violated antifraud provisions of the securities laws. Specifically, the ALJ found that Respondents had misrepresented the standard of care Harding would follow in selecting assets for various Harding-managed CDOs. For these violations, the ALJ ordered Harding and Chau to pay $1,003,216 in disgorgement and prejudgment interest, revoked Harding's investment adviser registration and ordered it to pay a $1.7 million civil penalty, and barred Chau from association with the securities industry and ordered him to pay a $340,000 civil penalty.
Respondent appealed and the Division of Enforcement cross-appealed. The issues likely to be considered at oral argument include, among other things, whether Respondents violated the securities laws and, if so, what sanction, if any, are appropriate in the public interest.
For further information, please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
On April 15, 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 (“Exchange Act”)
On June 15, 2016, pursuant to Section 19(b)(2) of the Act,
The Commission received no comments on the proposed rule change. This order grants approval of the proposed rule change, as modified by Amendment No. 1.
The Exchange proposes to list and trade the Shares under BZX Rule 14.11(i), which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by the Trust. According to the Exchange, the Trust is registered with the Commission as an open-end investment company.
According to the Exchange, the Fund is an actively managed exchange-traded fund (“ETF”) that seeks to provide total return that exceeds that of the Solactive Agriculture Commodity Index (“Benchmark”) over time. The Fund is not an index-tracking ETF and is not required to invest in the specific components of the Benchmark. However, the Exchange represents that the Fund will generally seek to maintain
The Benchmark is a rules-based index composed of futures contracts on 11 heavily traded agriculture commodities including cocoa, coffee, corn, cotton, feeder cattle, hard red winter wheat, lean hogs, live cattle, soybeans, sugar, and soft red winter wheat. The Exchange states that the Benchmark will seek to increase the weightings of those commodities whose futures markets display the most backwardation, or the least contango, among the 11 commodities. In addition, the Exchange represents that the Benchmark will seek to select the contract month for each specific commodity among the next 13 months that display the most backwardation or the least contango, and will not attempt to always own those contracts that are closest to expiration.
Although the Fund, through the Subsidiary (as further described below), will generally invest in Agriculture Commodities Futures (as defined below) that are components of the Benchmark, the Fund and the Subsidiary will be actively managed and will not be required to invest in all of, or limit their investments solely to, the Agriculture Commodities Futures. In this regard, the Fund, through the Subsidiary, may hold the same Agriculture Commodities Futures in approximately, but not exactly, the same weights as the Benchmark. The Fund, through the Subsidiary, will generally hold the Agriculture Commodities Futures with the same maturity as the Benchmark, but may select a different month of maturity in seeking to achieve better performance than the Benchmark.
According to the Exchange, under normal circumstances,
The Exchange states that the Fund generally will not invest directly in Agriculture Commodities Futures and expects to gain exposure to Agriculture Commodities Futures by investing a portion of its assets in the Subsidiary.
The Exchange represents that, during times of adverse market, economic, political, or other conditions, the Fund may depart temporarily from its principal investment strategies (such as by maintaining a significant uninvested cash position) for defensive purposes. The Exchange states that doing so could help the Fund avoid losses, but may mean lost investment opportunities, and that during these periods, the Fund may not achieve its investment objective.
The Fund intends to qualify each year as a regulated investment company under the Internal Revenue Code.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment) deemed illiquid by the Adviser
Aside from the Fund's investments in the Subsidiary, neither the Fund nor the Subsidiary will invest in non-U.S. equity securities. Neither the Fund nor the Subsidiary will invest in derivatives other than Agriculture Commodities Futures.
The Fund's investments will be consistent with the Fund's investment objective and will not be used to achieve leveraged or inverse leveraged returns.
After careful review, the Commission finds that the Exchange's proposal to list and trade the Shares is consistent with the Exchange Act and the rules and
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 Exchange Act,
According to the Exchange, quotation and last sale information for the Shares will be available on the facilities of the Consolidated Tape Association (“CTA”), and the previous day's closing price and trading volume information for the Shares will be generally available daily in the print and online financial press. Also, daily trading volume information for the Fund will be available in the financial section of newspapers, through subscription services such as Bloomberg, Thomson Reuters, and International Data Corporation, which can be accessed by authorized participants and other investors, as well as through other electronic services, including major public Web sites. Additionally, information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services.
In addition, the Intraday Indicative Value
Intraday price quotations on Cash Instruments of the type held by the Fund, with the exception of money market mutual funds, are available from major broker-dealer firms and from third parties, which may provide prices free with a time delay or “live” with a paid fee. For Agriculture Commodities Futures, intraday pricing information is available directly from the applicable listing exchange. Price information for money market mutual funds will be available from the applicable investment company's Web site.
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Exchange will obtain a representation from the issuer of the Shares that the NAV will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. Further, trading in the Shares will be subject to BZX Rules 11.18 and 14.11(i)(4)(B)(iv), which set forth circumstances under which trading in Shares of the Fund may be halted. 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 Agriculture Commodities Futures and other assets composing the Disclosed Portfolio of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
The Reporting Authority that provides the Disclosed Portfolio must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material, non-public information regarding the actual components of the portfolio.
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. The Exchange represents that trading of the Shares through the Exchange will be subject to the Exchange's surveillance procedures for derivative products, including Managed Fund Shares, and that these surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws.
The Exchange represents that it deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made the following representations:
(1) The Shares will be subject to BZX Rule 14.11(i), which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange may obtain information regarding trading in the Shares and the underlying futures, including futures contracts held by the Subsidiary, via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members or affiliate members of the ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, the Exchange is able to access, as needed, trade information for certain fixed income instruments reported to FINRA's Trade Reporting and Compliance Engine.
(4) All of the futures contracts in the Disclosed Portfolio for the Fund (including those held by the Subsidiary) will trade on markets that are a member or affiliate member of ISG or on markets with which the Exchange has in place a comprehensive surveillance sharing agreement.
(5) Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in creation units (and that Shares are not individually redeemable); (b) BZX Rule 3.7, which imposes suitability obligations on Exchange members with respect to recommending transactions in the Shares to customers; (c) how information regarding the Intraday Indicative Value and Disclosed Portfolio is disseminated; (d) the risks involved in trading the Shares during the Pre-Opening and After Hours Trading Sessions (as defined in the Exchange's rules), when an updated Intraday Indicative Value will not be calculated or publicly disseminated; (e) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(6) For initial and continued listing, the Fund must be in compliance with Rule 10A-3 under the Exchange Act.
(7) Aside from the Fund's investments in the Subsidiary, neither the Fund nor the Subsidiary will invest in non-U.S. equity securities.
(8) Neither the Fund nor the Subsidiary will invest in derivatives other than Agriculture Commodities Futures.
(9) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment) deemed illiquid by the Adviser under the 1940 Act. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid assets.
(10) The Fund's investments will be consistent with the Fund's investment objective and will not be used to achieve leveraged or inverse leveraged returns.
(11) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
The Exchange represents that all statements and representations made in the filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures 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, and that, pursuant to its obligations under Section 19(g)(1) of the Exchange 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 BZX Rule 14.12.
This approval order is based on all of the Exchange's representations, including those set forth above and in Amendment No. 1. The Commission notes that the Fund and the Shares must comply with the requirements of BZX Rule 14.11(i) to be initially and continuously listed and traded on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with Section 6(b)(5) of the Exchange Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Office of the Assistant Legal Adviser for Private International Law, Department of State, gives notice of a public meeting to discuss ongoing work in the United Nations Commission on International Trade Law (UNCITRAL) on the topic of the enforcement of
In 2014, the United States proposed that UNCITRAL develop a convention on the enforcement of conciliated settlement agreements that resolve international commercial disputes.
The purpose of the public meeting is to obtain the views of concerned stakeholders on the instrument being developed by UNCITRAL. Those who cannot attend but wish to comment are welcome to do so by email to Tim Schnabel at
Data from the public is requested pursuant to Public Law 99-399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107-56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. The data will be entered into the Visitor Access Control System (VACS-D) database. Please see the Security Records System of Records Notice (State-36) at
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that the State of Minnesota has applied for an exemption from regulations governing commercial driver's license (CDL) skills testing procedures and practices. Minnesota believes it can deliver CDL skills testing more efficiently in an alternative manner. It asserts that its method of delivering skills testing will maintain the testing standards enumerated by the regulations. FMCSA requests public comments on the request for exemption.
Comments must be received on or before August 31, 2016.
You may submit comments identified by Federal Docket Management System Number FMCSA-2016-0180 by any of the following methods:
•
•
•
•
For information concerning this notice, contact Mr. Thomas L. Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325; Email:
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR part 350
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) was designed to improve highway safety by ensuring that truck and bus drivers are qualified to drive a commercial motor vehicle (CMV). It provided for removal of the driving privileges of unsafe or unqualified drivers. States issue commercial driver's licenses (CDLs) to CMV operators, but the CMVSA directed the Federal government to establish minimum requirements for the issuance of a CDL.
Subpart H of 49 CFR part 383 contains the principal requirements governing State testing of applicants for a CDL. Testing must be conducted in such a way as to determine if the applicant possesses the required knowledge and skills (§ 383.133(a)).
Minnesota seeks a partial exemption from § 383.133, “Test Methods.” Pursuant to that section, the CDL skills test must be conducted in three parts in the following order: pre-trip inspection, vehicle control skills, and on-road driving (§ 383.133(c)(6)). Minnesota asks that it be allowed to combine the second and third parts (vehicle control skills and on-road driving) and thus reduce the skills test to two parts. It also asks to be exempted from using the American Association of Motor Vehicle Administrators (AAMVA) 2005 Test Model Score Sheet. Finally, it asks to be exempted from the requirement that applicants must pass the pre-trip inspection portion of the exam before proceeding to the balance of the test.
Minnesota states that under its proposed approach, it can more efficiently manage the limited space of its test sites and conduct more CDL tests each day. It states that denial of its application for exemption will result in a less-rigorous CDL test and negatively affect motor carriers and drivers. A copy of Minnesota's application for exemption is in the docket listed at the beginning of this notice.
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on Minnesota's application for exemption. The Agency will consider all comments received by close of business on August 31, 2016.
Comments will be available for examination in the docket at the location listed under the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions for 20 individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to operate CMVs in interstate commerce.
This decision was effective March 4, 2016. Comments must be received on or before August 31, 2016.
Christine A. Hydock, Chief, Medical Programs Division, Medical Programs Division, 202-366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for up to 2 years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The physical qualification standard for drivers regarding hearing found in 49 CFR 391.41(b)(11) states that a person is physically qualified to driver a CMV if that person:
First perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
49 CFR 391.41(b)(11) was adopted in 1970, with a revision in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 FR 12857 (July 3, 1971).
The 20 individuals listed in this notice have requested renewal of their exemptions from the hearing standard in 49 CFR 391.41(b)(11), in accordance with FMCSA procedures.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 20 applicants has satisfied the entry conditions for obtaining an exemption from the hearing requirement (80 FR 18924; 80 FR 18926; 80 FR 22766; 80 FR 22768; 80 FR 60747). The Commercial Driver's License Information System (CDLIS) and Motor Carrier Management Informatiom System (MCMIS) are searched for crash and violation data. For non-CDL holders, the Agency reviews the driving records from the State Driver's Licensing Agency (SDLA). These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce.
The 20 drivers in this notice remain in good standing with the Agency and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous 2-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. They are:
The exemptions are extended subject to the following conditions: (1) Each driver must report any crashes or accidents as defined in 49 CFR 390.5; and (2) report all citations and convictions for disqualifying offenses under 49 CFR part 383 and 49 CFR 391 to FMCSA. In addition, the driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement officials. The driver is prohibited from operating a motorcoach or bus with passengers in interstate commerce. The exemption does not exempt the individual from meeting the applicable CDL testing requirements. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Based upon its evaluation of the 20 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the hearing requirement in 49 CFR 391.41(b)(11). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 33 individuals for an exemption from the hearing requirement to operate commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals to operate CMVs in interstate commerce.
Comments must be received on or before August 31, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2016-0002 using any of the following methods:
•
•
•
•
Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations (FMCSRs) for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 33 individuals listed in this notice have recently requested such an exemption from the hearing requirement in 49 CFR 391.41(b) (11), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
The physical qualification standard for drivers regarding hearing found in 49 CFR 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person
First perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 FR 12857 (July 3, 1971).
Ms. Brakenredge, age 40, holds an operator's license in Illinois.
Mr. Chappelear, age 26, holds an operator's license in Texas.
Mr. Coen, age 52, holds a class A CDL in New York.
Mr. Mathias, age 56, holds on operator's license in Michigan.
Mr. Cordano, age 44, holds a class A CDL in California.
Mr. Culver, age 32, holds a class A CDL in Texas.
Mr. DePriest, age 55, holds an operator's license in Texas.
Mr. English, age 42, holds an operator's license in Texas.
Mr. Fernell, age 47, holds an operator's license in Ohio.
Mr. Fisher, age 28, holds an operator's license in Pennsylvania.
Mr. Fleming, age 54, holds an operator's license in Georgia.
Mr. Freeze, age 64, holds a class A CDL in Oklahoma.
Mr. Gonzales, age 53, holds an operator's license in Georgia.
Mr. Gullett, age 22, holds an operator's license in Ohio.
Mr. Hoots, age31, holds an operator's license in Arizona.
Mr. Jackson, age 53, holds a class A CDL in Texas.
Mr. Kahalewai, age 34, holds an operator's license in Hawaii.
Mr. Lutsey, age 52, holds a class A CDL in Pennsylvania.
Mr. Martinez, age 35, holds an operator's license in Texas.
Mr. Medrano, age 41, holds an operator's license in Washington.
Mr. Miller, age 37, holds a class B CDL in Missouri.
Mr. Minch, age 31, holds an operator's license in Massachusetts.
Ms Parker, age 31 holds an operator's license in New Jersey.
Mr. Pindor, age 55, holds a class A CDL in Arizona.
Mr. Samarian, age 39, holds an operator's license in Michigan.
Ms. Smith, age 32, holds an operator's license in Ohio.
Mr. Smith, age 50, holds a class A CDL in Colorado.
Mr. Stroud, age 50, holds an operator's license in Utah.
Mr. Sweet, age 45, holds a class B CDL in Georgia.
Mr. Watters, age 55, holds an operator's license in Ohio.
Mr. Westfall, age 67, holds a class A CDL in Pennsylvania.
Mr. Zamot, age 43, holds an operator's license in Florida.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period. FMCSA may issue a final determination any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of denials.
FMCSA announces its denial of 160 applications from individuals who requested an exemption from the Federal vision standard applicable to interstate truck and bus drivers and the reasons for the denials. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions does not provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal vision standard for a renewable 2-year period if it finds “such an exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such an exemption.” The procedures for requesting an exemption are set forth in 49 CFR part 381.
Accordingly, FMCSA evaluated 160 individual exemption requests on their merit and made a determination that these applicants do not satisfy the criteria eligibility or meet the terms and conditions of the Federal exemption program. Each applicant has, prior to this notice, received a letter of final disposition on the exemption request. Those decision letters fully outlined the basis for the denial and constitute final Agency action. The list published in this notice summarizes the Agency's recent denials as required under 49 U.S.C. 31315(b)(4) by periodically publishing names and reasons for denial.
The following 2 applicants did not have sufficient driving experience over the past 3 years under normal highway operating conditions:
The following 52 applicants had no experience operating a CMV:
The following 27 applicants did not have 3 years of experience driving a CMV on public highways with their vision deficiencies:
The following 14 applicants did not have 3 years of recent experience driving a CMV with the vision deficiency:
The following 13 applicants did not have sufficient driving experience during the past 3 years under normal highway operating conditions:
The following 2 applicants were charged with moving violations in conjunction with a CMV accident:
The following applicant, Bruce A. Rost, has other medical conditions that make him or her otherwise unqualified.
The following applicant, Jeremy M. Row, did not have an optometrist or ophthalmologist willing to make a statement that they are able to operate a commercial vehicle from a vision standpoint.
The following 9 applicants were denied for multiple reasons:
The following applicant, Rufus L. Jones, submitted false documentation during the application process.
The following applicant, Stuart J. Daniell, did not have stable vision for the entire 3-year period.
The following applicant, Robert J. Duncan, is a Canadian citizen.
The following 7 applicants met the current federal vision standards. Exemptions are not required for applicants who meet the current regulations for vision:
The following 2 applicants were charged with moving violations in conjunction with a CMV accident:
The following 19 applicants will not be driving interstate, interstate commerce, or are not required to carry a DOT medical card:
Finally, the following 8 applicants perform transportation for the federal government, state, or any political sub-division of the state.
Federal Transit Administration (FTA), DOT. Funding Opportunity Number: FTA-2015-006-TRI Catalog of Federal Domestic Assistance (CFDA) Number: 20.514
Announcement of project selections.
The U.S. Department of Transportation's (DOT) Federal Transit Administration (FTA) announced the selection of Fiscal Year (FY) 2015 Low or No Emissions Vehicle Deployment Program (LoNo) projects on April 19, 2016, (see Table 1). The Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, July 6, 2012, amended 49 U.S.C. 5312 to add a new paragraph (d)(5) authorizing FTA to make grants to finance eligible projects under the LoNo Program. The Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, December 16, 2014, made available $22,500,000 in FY 2015 funds to carry out the LoNo Program. Of that amount, a maximum of $19,500,000 was available for transit buses and a minimum of $3,000,000 was available for supporting facilities and related equipment.
On September 24, 2015, FTA published a Notice of Funding Availability (NOFA) (80 FR 57656) announcing the availability of funding for the LoNo Program. The purpose of the LoNo Program is to deploy the cleanest and most energy efficient U.S.-made transit buses that have been largely proven in testing and demonstrations but are not yet widely deployed in transit agency fleets. The LoNo Program provides funding for transit agencies for capital acquisitions and leases of zero-emission and low-emission transit buses, including acquisition, construction, and leasing of required supporting facilities such as recharging, refueling, and maintenance facilities.
The appropriate FTA Regional Office will contact successful applicants regarding the next steps in applying for funds (see Table 1). Unsuccessful LoNo Program applicants may contact Sean Ricketson, Office of Research Demonstration, and Innovation at email address
In response to the LoNo NOFA, FTA received 63 project proposals requesting $247,631,499 in Federal funds. Project proposals were evaluated based on each applicant's responsiveness to the program evaluation criteria published in the NOFA. FTA is funding seven LoNo Program projects, as shown in Table 1, for a total of $22,500,000. Grantees selected for the LoNo Program should work with their FTA Regional Office to complete the grant applications.
Grant applications must only include eligible activities applied for in the original project application. Project partner organizations identified as team members or sub-recipients in the original project application must be identified and included in the grant application in the capacity as originally
All projects are granted pre-award authority with an effective date of April 19, 2016, so long as all required conditions for pre-award authority have been met and the activities undertaken in advance of federal funding are contained in the approved project plan or statement of work. Post-award reporting requirements include submission of the Federal Financial Report and Milestone reports in TrAMS as appropriate (FTA
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before August 31, 2016.
Comments should refer to docket number MARAD-2016-0075. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel SERENITE is:
The complete application is given in DOT docket MARAD-2016-0075 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before August 31, 2016.
Comments should refer to docket number MARAD-2016-0076. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel MERLOT is:
The complete application is given in DOT docket MARAD-2016-0076 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Internal Revenue Service (IRS), Treasury.
Notice of meeting; correction.
In the
The meeting will be held Thursday, August 25, 2016.
Antoinette Ross at 1-888-912-1227 or (202) 317-4110.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee will be held Thursday, August 25, 2016, at 2:00 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Antoinette Ross. For more information please contact: Antoinette Ross at 1-888-912-1227 or (202) 317-4110, or write TAP Office, 1111 Constitution Avenue NW., Room 1509-National Office, Washington, DC 20224, or contact us at the Web site:
The committee will be discussing various issues related to Taxpayer Communications and public input is welcome.
Department of the Treasury.
Notice of availability; Request for comments.
The Board of Trustees of the Bricklayers & Allied Craftsmen Local No. 7 Pension Plan (Bricklayers Local 7
Comments must be received by September 15, 2016.
You may submit comments electronically through the Federal eRulemaking Portal at
Comments may also be mailed to the Department of the Treasury, MPRA Office, 1500 Pennsylvania Avenue NW., Room 1224, Washington, DC 20220. Attn: Eric Berger. Comments sent via facsimile and email will not be accepted.
For information regarding the application from the Board of Trustees of the Bricklayers Local 7 Pension Plan, please contact Treasury at (202) 622-1534 (not a toll-free number).
The Multiemployer Pension Reform Act of 2014 (MPRA) amended the Internal Revenue Code to permit a multiemployer plan that is projected to have insufficient funds to reduce pension benefits payable to participants and beneficiaries if certain conditions are satisfied. In order to reduce benefits, the plan sponsor is required to submit an application to the Secretary of the Treasury, which Treasury, in consultation with the Pension Benefit Guaranty Corporation (PBGC) and the Department of Labor, is required to approve or deny.
On June 28, 2016, the Board of Trustees of the Bricklayers Local 7 Pension Plan submitted an application for approval to reduce benefits under the plan. As required by MPRA, that application has been published on Treasury's Web site at
Comments are requested from interested parties, including contributing employers, employee organizations, and participants and beneficiaries of the Bricklayers Local 7 Pension Plan. Consideration will be given to any comments that are timely received by Treasury.
Departmental Offices, Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on this continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before September 30, 2016 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to the Department of the Treasury, Office of the Fiscal Assistant Secretary, ATTN: Sustanchia Gladden, 1500 Pennsylvania Avenue NW., Room 1050, Washington, DC 20020 or to
Requests for additional information should be directed to the Department of the Treasury, Office of the Fiscal Assistant Secretary, ATTN: Sustanchia Gladden, 1500 Pennsylvania Avenue NW., Room 1050, Washington, DC 20020 or to
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before August 31, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before August 31, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collections, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before August 31, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 31, 2016.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7474 or email
VA Form 21P-1775 is used to gather the necessary information to determine if a decision of presumptive death can be made for benefit payment purposes. It would be impossible to administer the survivor benefits program without this collection of information.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 31, 2016.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
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 |