| Page Range | 58807-59119 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 58849 - Air Plan Approval; Rhode Island; Infrastructure State Implementation Plan Requirements for Particle Matter, Ozone, Lead, Nitrogen Dioxide and Sulfur Dioxide | |
| 81 FR 58807 - Amendment to Executive Order 13673 | |
| 81 FR 58982 - Sunshine Act Meeting Notice | |
| 81 FR 58831 - Administrative Exemption on Value Increased for Certain Articles | |
| 81 FR 59038 - Withdrawal of Amendments to Highway Safety Program Guidelines | |
| 81 FR 58951 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 58960 - Endangered Species; Marine Mammals; Issuance of Permits | |
| 81 FR 58952 - Fair Market Rents for the Housing Choice Voucher Program, Moderate Rehabilitation Single Room Occupancy Program and Other Programs Fiscal Year 2017 | |
| 81 FR 58961 - 2016 Second Call for Nominations for Utah Resource Advisory Council | |
| 81 FR 58925 - Science Advisory Committee on Chemicals; Establishment of a Federal Advisory Committee; Request for Nominations | |
| 81 FR 59039 - Proposed Collection; Comment Request for Form 1024 | |
| 81 FR 58877 - Extension of Comment Period for Modernization of Property Disclosures for Mining Registrants | |
| 81 FR 59040 - Request for Applications for the IRS Advisory Committee on Tax Exempt and Government Entities | |
| 81 FR 59041 - Proposed Collection; Comment Request on Information Collection Tools Relating to Wage and Investment Behavioral Laboratory Customer Surveys and Support | |
| 81 FR 59041 - Solicitation of Nominations for Appointment to the Veterans Rural Health Advisory Committee | |
| 81 FR 58902 - Submission for OMB Review; Comment Request | |
| 81 FR 58924 - Environmental Impact Statements; Notice of Availability | |
| 81 FR 58911 - Procurement List; Additions and Deletions | |
| 81 FR 58913 - Procurement List; Proposed Additions and Deletions | |
| 81 FR 58926 - Mercury Compounds; Prohibition of Export | |
| 81 FR 58945 - National Advisory Council on Migrant Health; Notice of Meeting | |
| 81 FR 58939 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 81 FR 58939 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 81 FR 58846 - Security Zone; Kailua Bay, Oahu, HI | |
| 81 FR 59029 - CSX Transportation, Inc.-Corporate Family Merger Exemption-The Three Rivers Railway Company | |
| 81 FR 58947 - Solicitation of Written Comments on the Maternal Immunizations Working Group Phase II's Draft Report and Draft Recommendations for Overcoming Barriers and Identifying Opportunities for Developing Maternal Immunizations for Consideration by the National Vaccine Advisory Committee | |
| 81 FR 58946 - Meeting of the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria; Correction | |
| 81 FR 59029 - Review of the Designation as a Foreign Terrorist Organization of Jemaah Islamiya (and Other Aliases) | |
| 81 FR 59028 - 30-Day Notice of Proposed Information Collection: U.S. Passport Renewal Application for Eligible Individuals | |
| 81 FR 58929 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 58944 - National Vaccine Injury Compensation Program; List of Petitions Received | |
| 81 FR 58932 - Supervisory Rating System for Financial Market Infrastructures | |
| 81 FR 58928 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 58930 - Privacy Act System of Records | |
| 81 FR 58981 - Advisory Committee on Reactor Safeguards; Notice of Meeting | |
| 81 FR 58981 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978 | |
| 81 FR 58946 - National Committee on Vital and Health Statistics: Meeting | |
| 81 FR 59042 - Veterans' Advisory Committee on Rehabilitation; Notice of Meeting | |
| 81 FR 58980 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Registered Apprenticeship College Consortium | |
| 81 FR 58960 - Second Call for Nominations to the Alaska Resource Advisory Council | |
| 81 FR 58870 - Importation of Fresh Persimmons From New Zealand Into the United States | |
| 81 FR 58867 - Importation of Fresh Raspberry Fruit From Morocco Into the Continental United States | |
| 81 FR 58873 - Importation of Lemons From Chile Into the Continental United States | |
| 81 FR 58858 - Television Broadcasting Services; Seaford, Delaware | |
| 81 FR 58982 - New Postal Product | |
| 81 FR 58919 - Notice of Intent To Prepare an Environmental Impact Statement and To Announce Public Scoping Meetings for the Fallon Range Training Complex Modernization: Expansion of Land Ranges, Airspace Modifications, and Public Land Withdrawal Renewal | |
| 81 FR 58921 - Notice of Intent To Prepare a Supplemental Environmental Impact Statement for Disposition of Depleted Uranium Oxide Conversion Product Generated From DOE's Inventory of Depleted Uranium Hexafluoride | |
| 81 FR 58920 - Notice of Availability of a Draft Supplemental Environmental Impact Statement/Supplemental Overseas Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar | |
| 81 FR 59033 - Household Goods Consumer Protection: Application for Exemption; La Rosa Del Monte Express Inc. (LRDM) | |
| 81 FR 59034 - Amended Pre-Trip Safety Information for Motorcoach Passengers | |
| 81 FR 59038 - Agency Information Collection Activities: Request for Comments; Clearance of a New Information Collection(s): U.S. Department of Transportation Accessibility Concern Form | |
| 81 FR 58917 - Army Education Advisory Subcommittee Meeting Notice | |
| 81 FR 58917 - Intent To Grant an Exclusive License of U.S. Government-Owned Patents | |
| 81 FR 58910 - Okanogan-Wenatchee National Forest; Okanogan, Chelan and Skagit Counties, Washington; Pack Stock Outfitter Guide Special Use Permits Supplemental Environmental Impact Statement | |
| 81 FR 58840 - Military Lending Act Limitations on Terms of Consumer Credit Extended to Service Members and Dependents | |
| 81 FR 58959 - Endangered and Threatened Wildlife and Plants; Availability of Proposed Low-Effect Habitat Conservation Plan, Orange County, FL | |
| 81 FR 58859 - Fisheries of the Northeastern United States; Monkfish; Framework Adjustment 9 | |
| 81 FR 58846 - Drawbridge Operation Regulation; Chester River, Chestertown, MD | |
| 81 FR 59036 - Environmental Impact Statement for the Long Bridge Project in Washington, DC | |
| 81 FR 58846 - Safety Zone; Portland Dragon Boat Races, Portland, OR | |
| 81 FR 59043 - Advisory Committee on Women Veterans, Notice of Meeting | |
| 81 FR 58895 - Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Chambered Nautilus as Threatened or Endangered Under the Endangered Species Act | |
| 81 FR 58941 - Microbiology Data for Systemic Antibacterial Drugs-Development, Analysis, and Presentation; Guidance for Industry; Availability | |
| 81 FR 58942 - Agency Information Collection Activities; Proposed Collection; Comment Request; User Account Management Function for the Import Trade Auxiliary Communication System | |
| 81 FR 58911 - Meetings | |
| 81 FR 58964 - Proposed Renewal of the Approval of Information Collection Requirements; Comment Request | |
| 81 FR 59028 - Louisiana Disaster Number LA-00065 | |
| 81 FR 58878 - Longshore and Harbor Workers' Compensation Act: Maximum and Minimum Compensation Rates | |
| 81 FR 59027 - Louisiana Disaster Number LA-00065 | |
| 81 FR 59028 - Advisory Committee on Veterans Business Affairs Meeting Notice | |
| 81 FR 58834 - Schedules of Controlled Substances: Placement of Thiafentanil Into Schedule II | |
| 81 FR 59020 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 13.8, EDGA Book Feeds, To Adopt a New Market Data Product Known as EDGA Summary Depth | |
| 81 FR 58987 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 13.8, EDGX Book Feeds, To Adopt a New Market Data Product Known as EDGX Summary Depth | |
| 81 FR 59025 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the Exchange's Schedule of Fees and Charges To Eliminate the Listing Fee in Connection With Exchange Listing of Certain Exchange Traded Products | |
| 81 FR 59014 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.22, Data Products, To Adopt a New Market Data Product Known as BZX Summary Depth | |
| 81 FR 59018 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.22, Data Products, To Adopt a New Market Data Product Known as BYX Summary Depth | |
| 81 FR 59016 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 21.8, Order Display and Book Processing | |
| 81 FR 58992 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Change Amending the Co-Location Services Offered by the Exchange To Add Certain Access and Connectivity Fees | |
| 81 FR 59004 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Amending the Co-location Services Offered by the Exchange To Add Certain Access and Connectivity Fees | |
| 81 FR 59002 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 3, To List and Trade Shares of the Natixis Seeyond International Minimum Volatility ETF Under NYSE Arca Equities Rule 8.600 | |
| 81 FR 58983 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of a Proposed Rule Change, As Modified by Amendment No. 1 Thereto, Relating to the Listing and Trading of the Shares of the Amplify Dow Theory Forecasts Buy List ETF of Amplify ETF Trust | |
| 81 FR 58989 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Delay the Due Date for Certain Submissions Under Rule G-45 and Provide Guidance on the Application of Rules G-42 and G-44 to Municipal Advisors to Sponsors or Trustees of Municipal Fund Securities | |
| 81 FR 59023 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Options Pricing | |
| 81 FR 58963 - Notice of Intent To Establish a Campground Fee on Public Land in Gunnison County, Colorado | |
| 81 FR 58962 - Notice of Availability of the Final Environmental Impact Statement for the Sheep Mountain Uranium Project, Fremont County, Wyoming | |
| 81 FR 58964 - Cancellation of September 7, 2016, Meeting of the Wekiva River System Advisory Management Committee | |
| 81 FR 58951 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed Meetings | |
| 81 FR 58948 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meetings | |
| 81 FR 58949 - Government-Owned Inventions; Availability for Licensing | |
| 81 FR 58940 - Information Collection; Rights in Data and Copyrights | |
| 81 FR 58951 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 81 FR 58950 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 81 FR 58952 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 81 FR 58950 - National Heart, Lung, and Blood Institute; Notice of Closed Meeting | |
| 81 FR 58950 - National Institute of Biomedical Imaging and Bioengineering; Notice of Meeting | |
| 81 FR 58960 - Indian Gaming; Extension of Tribal-State Class III Gaming Compact (Crow Creek Sioux Tribe and the State of South Dakota) | |
| 81 FR 58923 - Hartree Partners, LP; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 81 FR 58923 - Combined Notice of Filings #1 | |
| 81 FR 59030 - Aviation Rulemaking Advisory Committee; Meeting | |
| 81 FR 58918 - Submission for OMB Review; Anti-Kickback Procedures | |
| 81 FR 59030 - Government/Industry Aeronautical Charting Forum Meeting | |
| 81 FR 59031 - Availability of Noise Compatibility Program for Akron-Canton Airport, North Canton, Ohio | |
| 81 FR 58849 - Partial Approval and Partial Disapproval of Air Quality Implementation Plans; New York; Interstate Transport Infrastructure SIP Requirements for the 2008 Ozone NAAQS | |
| 81 FR 58927 - Proposed Settlement Agreement, Clean Air Act Citizen Suit | |
| 81 FR 58909 - Inyo, Plumas, and Stanislaus National Forests; Mono, Inyo, Plumas, and Tuolumne Counties, California; Mammoth Base Land Exchange | |
| 81 FR 58823 - Airworthiness Directives; Airbus Airplanes | |
| 81 FR 58874 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
| 81 FR 58827 - Airworthiness Directives; Bombardier, Inc. Airplanes | |
| 81 FR 58818 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 58821 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 59045 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sierra Nevada Yellow-Legged Frog, the Northern DPS of the Mountain Yellow-Legged Frog, and the Yosemite Toad | |
| 81 FR 58855 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Control of Emissions of Volatile Organic Compounds From the Reynolds Consumer Products LLC-Bellwood Printing Plant | |
| 81 FR 58894 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; State Operating Permit Conditions for the Control of Emissions of Volatile Organic Compounds from the Reynolds Consumer Products LLC-Bellwood Printing Plant | |
| 81 FR 58908 - Notice of New Fee Site; Federal Lands Recreation Enhancement Act, (Title VIII, Pub. L. 108-447) | |
| 81 FR 58905 - Adjustment of Appendices for Dairy Tariff-Rate Import Quota Licensing for the 2016 Tariff-Rate Quota Year | |
| 81 FR 59032 - Notice of Final Federal Agency Actions on Proposed Highway in Illinois | |
| 81 FR 58903 - Notice of Request To Renew an Approved Information Collection (Interstate Shipment of Meat and Poultry Products) | |
| 81 FR 58952 - Federal Property Suitable as Facilities To Assist the Homeless | |
| 81 FR 58816 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 58811 - Airworthiness Directives; PILATUS Aircraft Ltd. Airplanes | |
| 81 FR 58813 - Airworthiness Directives; Textron Aviation, Inc. Airplanes | |
| 81 FR 58829 - Airworthiness Directives; RUAG Aerospace Services GmbH Airplanes | |
| 81 FR 58890 - Privacy Act Procedures | |
| 81 FR 58859 - Notice of Adoption of the Health and Human Services Acquisition Regulations (HHSAR) and OIG Class Deviations | |
| 81 FR 58809 - Agriculture and Food Research Initiative Competitive Federal Grants Program-General Administration Provisions |
Animal and Plant Health Inspection Service
Farm Service Agency
Food Safety and Inspection Service
Foreign Agricultural Service
Forest Service
National Institute of Food and Agriculture
Office of Advocacy and Outreach
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Federal Energy Regulatory Commission
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Indian Gaming Commission
National Park Service
Drug Enforcement Administration
Federal Contract Compliance Programs Office
Workers Compensation Programs Office
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety 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 electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
National Institute of Food and Agriculture, USDA.
Final rule with request for comments.
The National Institute of Food and Agriculture (NIFA) is publishing as a final rule a revision to the general administrative guidelines applicable to the Agriculture and Food Research Initiative (AFRI) competitive grant program. The purpose of this final rule is to implement the Agriculture and Food Research Initiative commodity board provision added by section 7404 of the Agricultural Act of 2014 making it necessary to modify the AFRI regulations.
This final rule becomes effective on August 26, 2016. NIFA is requesting comments for 30 days until September 26, 2016.
You may submit comments, identified by Agriculture and Food Research Initiative Competitive Federal Grants Program—General Administration Provisions, by any of the following methods:
Maria Koszalka, Division Director, Policy and Oversight Division, Phone: 202-401-4325, Email:
This rulemaking is authorized by section 2(b) of the Competitive, Special, and Faculties Research Grant Act 7 U.S.C. 450i(b).
A primary function of NIFA is the fair, effective, and efficient administration of Federal assistance programs implementing agricultural research, education, and extension programs. The awards made under the above authority are subject to the NIFA assistance regulations at 7 CFR part 3430, Competitive and Noncompetitive Non-formula Federal Assistance Programs—General Award Administrative Provisions. NIFA's development and publication of this regulation for its non-formula Federal assistance programs enhances its accountability and standardizes procedures across the Federal assistance programs it administers while providing transparency to the public. NIFA published 7 CFR part 3430 with subparts A through F as a final rule on September 4, 2009 [74 FR 45736-45752]. These regulations apply to all Federal assistance programs administered by NIFA except for the formula grant programs identified in 7 CFR 3430.1(f), the Small Business Innovation Research programs with implementing regulations at 7 CFR part 3403, and the Veterinary Medicine Loan Repayment Program (VMLRP), with implementing regulations at 7 CFR part 3431.
NIFA organized the regulation as follows: Subparts A through E provide administrative provisions for all competitive and noncompetitive non-formula Federal assistance programs. Subparts F and thereafter apply to specific NIFA programs.
NIFA is, to the extent practical, using the following subpart template for each program authority: (1) Applicability of regulations, (2) purpose, (3) definitions (those in addition to or different from § 3430.2), (4) eligibility, (5) project types and priorities, (6) funding restrictions, (7) matching requirements, and (8) duration of grant. Subparts F and thereafter contain the above seven components in this order. Additional sections may be added for a specific program if there are additional requirements or a need for additional rules for the program (
Through this rulemaking, NIFA is making minor additions to Subpart G—Agriculture and Food Research Initiative (AFRI) in order to implement the AFRI commodity board provision from section 7404 of the Agricultural Act of 2014 (Pub. L. 113-79).
Subpart G contains the administrative provisions for the Agriculture and Food Research Initiative (AFRI). The purpose of AFRI is to make competitive grants for fundamental and applied research, extension, and education to address food and agricultural sciences, as defined under section 1404 of the National Agriculture Research, Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3103).
Section 7404 of the Agricultural Act of 2014 amended the general administration, special considerations, and eligible entities subsections for the Agriculture and Food Research Initiative (AFRI) program, and added a special contributions requirement making it necessary to modify the program's administrative provisions.
With this rule, NIFA makes clear that it will solicit funding ideas under this subpart from statutorily defined national and state commodity boards for research topics that the commodity boards are willing to co-fund equally with NIFA under the AFRI competitive grant program. If the ideas are evaluated and found to be consistent with the AFRI statutory priorities and priorities noted in the President's budget request related to NIFA, the topics will be
If upon consideration of the comments received in response to this notice NIFA decides to amend the AFRI final rule, NIFA will issue a subsequent final rule that includes an explanation of any changes made in response to the comments.
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. This rule has been determined to be not significant.
This final rule has been reviewed in accordance with the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, (5 U.S.C. 601-612). The Director certifies that this final regulation will not have a significant economic impact on a substantial number of small entities. This final regulation will affect institutions of higher education receiving Federal funds under this program. The U.S. Small Business Administration Size Standards define institutions as “small entities” if they are for-profit or nonprofit institutions with total annual revenue below $5,000,000 or if they are institutions controlled by governmental entities with populations below 50,000. The rule does not involve regulatory and informational requirements regarding businesses, organizations, and governmental jurisdictions subject to regulation.
The Department certifies that this final rule has been assessed in accordance with the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
This final regulation applies to the following Federal financial assistance programs administered by NIFA including CFDA No. 10.310, Agriculture and Food Research Initiative (AFRI).
The Department has reviewed this final rule in accordance with the requirements of Executive Order No. 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
Executive Order 12866 and the President's Memorandum of June 1, 1998, require each agency to write all rules in plain language. The Department invites comments on how to make this final rule easier to understand.
Administrative practice and procedure, Agricultural research, Education, Extension, Federal assistance.
Accordingly, the Department of Agriculture, National Institute of Food and Agriculture, adopts the final rule amending 7 CFR part 3430 which was published at 75 FR 54759 on September 9, 2010, and amends 7 CFR part 3430 as set forth below:
7 U.S.C. 3316; Pub. L. 106-107 (31 U.S.C. 6101 note).
NIFA will solicit funding ideas under this subpart from statutorily defined national and state commodity boards for research topics that the commodity boards are willing to co-fund equally with NIFA under the AFRI competitive grant program. If the ideas are evaluated and found to be consistent with the AFRI statutory priorities and priorities noted in the President's budget request related to NIFA, the topics will be incorporated in existing program areas in the relevant AFRI Request for Applications (RFA(s)). Researchers wishing to submit a proposal on a topic suggested by a commodity board will be required to obtain a letter of support from the co-funding commodity board. The applications submitted in response to a commodity board co-funded topic will compete against all proposals submitted in the same RFA program area. Supported applications will receive no preference regarding the evaluation of their scientific merit. Letters of commodity board support will be used by NIFA solely to determine that the application fits within the commodity board co-funded topic and
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for PILATUS Aircraft Ltd. Model PC-7 airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as stress corrosion cracking on the main frame on frame 11 left and right fittings. We are issuing this AD to require actions to address the unsafe condition on these products.
This AD is effective September 30, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of September 30, 2016.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact PILATUS Aircraft Ltd., Customer Technical Support (MCC), P.O. Box 992, CH-6371 Stans, Switzerland; phone: +41 (0)41 619 67 74; fax: +41 (0)41 619 67 73; email:
Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; fax: (816) 329-4090; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to PILATUS Aircraft Ltd. Model PC-7 airplanes. The NPRM was published in the
This Airworthiness Directive (AD) is prompted due to a report of Stress Corrosion Cracking (SCC) on the Main Frame on Frame (FR) 11 left fitting Part Number (P/N) 112.35.07.489 and right fitting P/N 112.35.07.490.
Such a condition, if left uncorrected, could lead to potential loss of the horizontal stabilizer.
In order to correct and control the situation, this AD requires a one-time check to identify the material specification and inspect the affected areas of the airframe that are made of aluminum alloy AA2024-T351. Any structural parts of the aircraft structure found to be cracked must be reported to Pilatus prior to further flight.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (81 FR 37166, June 9, 2016) or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (81 FR 37166, June 9, 2016) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (81 FR 37166, June 9, 2016).
We reviewed PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-013; and PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-014, both dated February 25, 2016. PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-013, dated February 25, 2016, describes procedures for initial and repetitive inspection of the main frame FR11 left and right fittings for stress corrosion cracking; and PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-014, dated February 25, 2016, describes procedures for replacement of the main frame FR11 left and right fittings when necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD will affect 19 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to check the material specification of the fittings and 11 work-hours per product to inspect the 2014-T351 fittings as required in order to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of this AD on U.S. operators to be $17,765, or $935 per product.
In addition, we estimate that any necessary follow-on actions would take about 19 work-hours and require parts costing $5,000 for a cost of $6,615 per product. We have no way of determining the number of products that may need these actions.
According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective September 30, 2016.
None.
This AD applies to PILATUS Aircraft Ltd. Model PC-7 airplanes, manufacturer serial numbers (MSN) 101 through 618, certificated in any category.
Air Transport Association of America (ATA) Code 53: Fuselage.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as stress corrosion cracking on the main frame on frame 11 left and right fittings, which can cause potential loss of the horizontal stabilizer. We are issuing this proposed AD to detect and correct stress corrosion cracking on the frame 11 left and right fittings.
Unless already done, do the actions in paragraphs (f)(1) through (4) of this AD:
(1) Within the next 120 days after September 30, 2016 (the effective date of this AD), check the material specification of the Frame (FR) 11 left fitting part number (P/N) 112.35.07.489 and the FR 11 right fitting P/N 112.35.07.490 following the Accomplishment Instructions in paragraph 3.B. of PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-013, dated February 25, 2016.
(2) If fittings made of aluminum alloy AA2124-T851 are found during the inspection required by paragraph (f)(1) of this AD, within 30 days after the inspection or within the next 30 days after September 30, 2016 (the effective date of this AD), whichever occurs later, report the inspection results following the reporting requirements in paragraph 3.D. of PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-013, dated February 25, 2016.
(3) If fittings made of aluminum alloy AA2024-T351 are found during the inspection required by paragraph (f)(1) of this AD, before further flight, and repetitively thereafter at intervals not to exceed 12 months, inspect FR 11 left fitting, P/N 112.35.07.489 and the FR 11 right fitting, P/N 112.35.07.490, for cracks following the Accomplishment Instructions in paragraph 3.C. of PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-013, dated February 25, 2016.
(4) If cracks are found during any inspection required in paragraph (f)(3) of this AD, before further flight, replace the fittings following the Accomplishment Instructions in paragraph 3 of PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-014, dated February 25, 2016.
The following provisions also apply to this AD:
(1)
(2)
(3)
Refer to Federal Office of Civil Aviation (FOCA) AD HB-2016-001, dated May 17,
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-013; dated February 25, 2016; and
(ii) PILATUS Aircraft Ltd. PC-7 Service Bulletin No: 53-014, dated February 25, 2016.
(3) For PILATUS Aircraft Ltd. service information identified in this AD, contact PILATUS Aircraft Ltd., Customer Technical Support (MCC), P.O. Box 992, CH-6371 Stans, Switzerland; phone: +41 (0)41 619 67 74; fax: +41 (0)41 619 67 73; email:
(4) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2016-07-24 for all Textron Aviation, Inc. Models 310 through 310R, E310H, E310J, T310P through T310R, 310J-1, 320 through 320F, 320-1, 335, 340, 340A, 401 through 401B, 402 through 402C, 411, 411A, 414, 414A, and 421 through 421C airplanes (type certificates 3A10, 3A25, and A7CE previously held by Cessna Aircraft Company). AD 2016-07-24 required replacement and repetitive inspections of the hardware securing the elevator trim tab push-pull rod. This AD retains the actions for AD 2016-07-24 but revises the repetitive inspection intervals and allows for a longer bolt for the attachment of the elevator trim tab actuator rod end to the push-pull tube connection and/or for the elevator trim tab horn end to the push-pull tube connection. This AD was prompted by comments indicating difficulties with bolt installation and requesting a revision to repetitive inspection intervals to coincide with established inspection intervals. We are issuing this AD to prevent jamming of the elevator trim tab in a position outside the normal limits of travel due to the loss of the attachment hardware connecting the elevator trim tab actuator to the elevator trim tab push-pull rod, which could result in loss of control.
This AD is effective September 12, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 12, 2016.
We must receive any comments on this AD by October 11, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact Textron Aviation Customer Service, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517-5800; fax: (316) 517-7271; email:
You may examine the AD docket on the Internet at
Adam Hein, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, 1801 S. Airport Road, Room 100, Wichita, Kansas 67209; phone: (316) 946-4116; fax: (316) 946-4107; email:
On March 30, 2016, we issued AD 2016-07-24, Amendment 39-18469 (81 FR 21250, April 11, 2016), (“AD 2016-07-24”), for all Textron Aviation, Inc. Models 310 through 310R, E310H, E310J, T310P through T310R, 310J-1, 320 through 320F, 320-1, 335, 340, 340A, 401 through 401B, 402 through 402C, 411, 411A, 414, 414A, and 421 through 421C airplanes (type certificates 3A10, 3A25, and A7CE previously held by Cessna Aircraft Company). AD 2016-07-24 required replacing the hardware connecting the elevator trim tab push-pull rod to the elevator trim tab actuator and elevator trim tab. AD 2016-07-24 resulted from accident reports on Textron Aviation, Inc. Models T310Q, 310Q, and 402B airplanes; lessons learned in accident investigation support; and analysis of past accidents. The analysis of National Transportation Safety Board (NTSB) determination of probable cause indicated that following the loss of the attachment hardware connecting the elevator trim tab actuator to the elevator trim tab push-pull rod, the elevator trim tab may jam in a position outside the normal limits of travel. We issued AD 2016-07-24 to require replacement and repetitive inspections of the hardware securing the elevator trim tab push-pull rod.
Since we issued AD 2016-07-24, we have received reports of difficulties in installing the required bolt, part number (P/N) NAS464P3-8, because it was found in some cases to be too short to properly fasten with a cotter pin as required by the AD. It was also determined beneficial to revise the repetitive inspection intervals to better coincide with the standard established inspection intervals for these airplanes. We are issuing this AD to correct the unsafe condition on these products.
We reviewed Textron Aviation, Inc. (Cessna Aircraft Company) Multi-engine Service Bulletin No. MEB-27-02, Revision 1, dated June 15, 2016. The service information describes procedures for replacing the hardware connecting the elevator trim tab push-pull rod to the elevator trim tab actuator and elevator trim tab. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires replacement and repetitive inspection of the elevator trim tab push-pull rod connecting hardware.
Due to the immediate safety of flight condition of this AD action, we are requiring replacement of the hardware within 90 days after the effective date of this AD rather than the potential of up to a year as allowed in the service information.
The kit referenced in the service bulletin contains only standard parts that may be procured from other sources.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the loss of the attachment hardware connecting the elevator trim tab actuator to the elevator trim tab push-pull rod may result in jamming of the elevator trim tab beyond normal limits, which could result in loss of ability to control the airplane. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 5,066 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. This is the same replacement that is initially required by this AD. We have no way of determining the number of aircraft that might need this repetitive on-condition replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 12, 2016.
This AD replaces AD 2016-07-24, Amendment 39-18469 (81 FR 21250, April 11, 2016) (“AD 2016-07-24”).
This AD applies to Textron Aviation, Inc. Models 310 through 310R, E310H, E310J, T310P through T310R, 310J-1, 320 through 320F, 320-1, 335, 340, 340A, 401 through 401B, 402 through 402C, 411, 411A, 414, 414A, and 421 through 421C airplanes (type certificates 3A10, 3A25, and A7CE previously held by Cessna Aircraft Company), all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 2731, Elevator Tab Control System.
This AD supersedes AD 2016-07-24, which required replacement and repetitive inspections of the hardware securing the elevator trim tab push-pull rod. This AD retains the actions for AD 2016-07-24 but revises the repetitive inspection intervals and allows for a longer bolt for the attachment of the elevator trim tab actuator rod end to the push-pull tube connection and/or for the elevator trim tab horn end to the push-pull tube connection. This AD was prompted by comments indicating difficulties with bolt installation and requesting a revision to repetitive inspection intervals to coincide with established inspection intervals. We are issuing this AD to prevent jamming of the elevator trim tab in a position outside the normal limits of travel due to the loss of the attachment hardware connecting the elevator trim tab actuator to the elevator trim tab push-pull rod, which could result in loss of control.
Do the actions in paragraphs (f)(1) through (3) of this AD. If paragraph (f)(1) of this AD has already been done before September 12, 2016 (the effective date of this AD) following either Textron Aviation, Inc. (Cessna) Multi-engine Service Bulletin (SB) No. MEB-27-02, dated February 29, 2016 (see paragraph (g) of this AD) or Textron Aviation, Inc. (Cessna) Multi-engine Service Bulletin (SB) No. MEB-27-02, Revision 1, dated June 15, 2016, then credit can be taken and the only required actions are the repetitive actions of paragraphs (f)(2) and (3) of this AD.
(1) Within the next 90 days after September 12, 2016 (the effective date of this AD), replace the elevator trim tab push-pull rod attachment hardware on the elevator trim tab actuator and the trim tab ends of the push-pull rod following steps 3 through 6 of the accomplishment instructions in Textron Aviation, Inc. (Cessna) Multi-engine Service Bulletin (SB) No. MEB-27-02, Revision 1, dated June 15, 2016.
(2) Following the replacement required in paragraph (f)(1) of this AD or the replacement or previous repetitive general visual inspection done per AD 2016-07-24, whichever occurs later, repetitively conduct general visual inspections of the elevator trim tab push-pull rod attachment hardware on the elevator trim tab actuator and the trim tab ends of the push-pull rod at intervals not to exceed 110 hours TIS or 12 months, whichever occurs first. Before further flight, replace the hardware if necessary following the Compliance NOTE on page 1 of Textron Aviation, Inc. (Cessna) Multi-engine Service Bulletin (SB) No. MEB-27-02, Revision 1, dated June 15, 2016.
The intent is to require these repetitive inspections during your regular maintenance schedule.
(3) After September 12, 2016 (the effective date of this AD), any time the elevator trim tab push-pull rod attachment hardware on the elevator trim tab actuator and/or trim tab ends of the push-pull rod is removed for any reason, discard the old hardware (bolt, nut, washer and cotter pin) and replace with new hardware following steps 4 and/or step 6 of Textron Aviation, Inc. (Cessna) Multi-engine Service Bulletin (SB) No. MEB-27-02, Revision 1, dated June 15, 2016.
This AD allows credit for the actions required in paragraphs (f)(1) of this AD if done before September 12, 2016 (the effective date of this AD) following the instructions of Textron Aviation, Inc. (Cessna) Multi-engine Service Bulletin (SB) No. MEB-27-02, dated February 29, 2016.
Special flight permits are allowed for this AD per 14 CFR 39.23 with the following limitation: Before flight a pre-flight visual inspection is required of the attachment hardware connecting the elevator trim tab actuator to the elevator trim tab push-pull rod. Confirmation of the presence of a castellated nut and cotter pin is required.
(1) The Manager, Wichita ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) AMOCs approved previously for AD 2016-07-24 are valid as AMOCs for this AD.
For more information about this AD, contact Adam Hein, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, 1801 S. Airport Road, Room 100, Wichita, Kansas 67209; phone: (316) 946-4116; fax: (316) 946-4107; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on September 12, 2016 (the effective date of this AD).
(i). Textron Aviation, Inc. (Cessna) Multi-engine Service Bulletin (SB) No. MEB-27-02, Revision 1, dated June 15, 2016.
(ii) Reserved.
(4) For Textron Aviation, Inc. (Cessna) service information identified in this AD, contact Textron Aviation Customer Service, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517-5800; fax: (316) 517-7271; email:
(5) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 767-200 and -300 series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the aft pressure bulkhead web to pressure chord joint is subject to widespread fatigue damage (WFD). This AD requires repetitive high frequency eddy current (HFEC) inspections of the aft pressure bulkhead web at fasteners common to the bulkhead web and pressure chord, around the entire circumference of the pressure chord, for any crack, and repair of cracks. We are issuing this AD to detect and correct cracks in the aft pressure bulkhead web. Such cracking could result in the loss of structural integrity of the airplane.
This AD is effective September 30, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 30, 2016.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 767-200 and -300 series airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response. Boeing and United Airlines supported the NPRM.
Aviation Partners Boeing stated that accomplishing supplemental type certificate (STC) ST01920SE does not affect the actions specified in the proposed AD.
We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1), and added new paragraph (c)(2) to this AD to state that installation of STC ST01920SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015. The service information describes procedures for HFEC inspections of the aft pressure bulkhead web at fasteners
We estimate that this AD affects 296 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
The size of any repair area needs to be determined before material and work-hour costs can be calculated, so we cannot provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 30, 2016.
None.
(1) This AD applies to all The Boeing Company Model 767-200 and -300 series airplanes, certificated in any category.
(2) Installation of Supplemental Type Certificate (STC) ST01920SE (
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation by the design approval holder indicating that the aft pressure bulkhead web to pressure chord joint is subject to widespread fatigue damage. We are issuing this AD to detect and correct cracks in the aft pressure bulkhead web. Such cracking could result in the loss of structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as required by paragraph (h) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015, perform a surface high frequency eddy current (HFEC) inspection for cracking of the aft pressure bulkhead web at fasteners common to the bulkhead web and pressure chord, around the entire circumference of the pressure chord, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015. For this AD, Group 2, Configuration 2, as specified in Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015, includes airplanes with the aft pressure bulkhead replaced as specified in Boeing Alert Service Bulletin 767-53A0267. Repeat the inspection thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015.
Where Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
If any crack is found during any inspection required by paragraph (g) of this AD, before further flight, repair the crack using a method approved in accordance with the procedures specified in paragraph (j) of this AD. Although Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015, specifies to contact Boeing for repair instructions, and specifies that action as “RC” (Required for Compliance), this AD requires repair as specified in this paragraph. Installation of a
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane and the approval must specifically refer to this AD.
(4) Except as required by paragraph (i) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin 767-53A0268, dated April 1, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 777 airplanes. This AD was prompted by a report of an incident involving a landing in which the pilots needed to input corrections due to airplane yaw and roll to the right; the main landing gear (MLG) aft trunnion pin was later found to be fractured. This AD requires identification and replacement of certain MLG aft trunnion pins. We are issuing this AD to prevent a fractured MLG aft trunnion pin, which could result in collapse of the MLG and consequent loss of control of the airplane during landing.
This AD is effective September 30, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 30, 2016.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet:
You may examine the AD docket on the Internet at
Eric Lin, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6412; fax: 415-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777 airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Three commenters indicated their support for the NPRM.
One commenter, Gilles Oriot, asked that we update the cost estimate to reflect the costs shown in Boeing Information Notice 777-32A0103 IN 03, dated February 2, 2015.
We agree with the commenter and have updated the Costs of Compliance to reflect the updated information.
The Boeing Company, American Airlines, Air France, Korean Air, Etihad Airways, and All Nippon Airways requested that we allow installation of pins with serial numbers beginning with “EGL” or “MAL” that have been inspected previously but were not marked “BASE METAL INSPECTED” to fulfill the requirements of the proposed AD. The commenters stated that the previous inspection may have been done as part of a previous overhaul or required inspection using other service information that did not specify to mark “BASE METAL INSPECTED.” The commenters also stated that the actions specified in the service information are consistent with the requirements of the proposed AD. The commenters suggested various changes in order to allow installation of these parts.
We acknowledge that previous inspections may have been done as part of an overhaul or previous service requests, but we do not agree with the suggested changes. We disagree because providing credit for the inspections required by this AD undermines the level of record review required by this AD for compliance, cannot ensure that the various actions taken for each pin are the same actions required by this AD, and may not provide an acceptable level of safety equivalent to this AD. Operators that would like credit for the actions performed before the effective date of this AD may request approval of an alternative method of compliance (AMOC). The request should include a list of affected pin serial numbers, the airplane on which each pin is currently installed (if applicable), and the actions that were performed for each pin with applicable service information. We have not changed this final rule regarding this issue.
FedEx requested that we allow the suffix “BMI” to be allowed for marking the pins. FedEx stated that its record keeping system can only track unique part number and serial number combinations; it is not capable of tracking the additional “BASE METAL INSPECTED” marking.
We disagree with the commenter's request. We disagree because pins can be rotated among other airplanes and operators. Operators need to be consistent with how the pins are identified to comply with this AD and ensure the safety of passengers and crew. We recommend that the commenter work with the manufacturer to identify a suitable method of compliance for future revision of the service information. We have not changed this final rule regarding this issue.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed, except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Boeing Alert Service Bulletin 777-32A0103, Revision 1, dated December 10, 2015. The service information describes procedures for identifying and replacing certain MLG aft trunnion pins. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 123 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this repair:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 30, 2016.
None.
This AD applies to all The Boeing Company Model 777-200, 777-200LR, 777-300, 777-300ER, and 777F series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by a report of an incident involving a landing in which the pilots needed to input corrections due to airplane yaw and roll to the right; the main landing gear (MLG) aft trunnion pin was later found to be fractured. We are issuing this AD to prevent a fractured MLG aft trunnion pin, which could result in collapse of the MLG and consequent loss of control of the airplane during landing.
Comply with this AD within the compliance times specified, unless already done.
For airplanes on which the original airworthiness certificate or the original export certificate of airworthiness was issued on or before the effective date of this AD: Within 36 months after the effective date of this AD, identify the serial number and marking of the MLG aft trunnion pins, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 777-32A0103, Revision 1, dated December 10, 2015.
For any MLG aft trunnion pin that begins with serial number “EGL” or “MAL,” on which no “BASE METAL INSPECTED” marking is found, replace with a new or serviceable MLG aft trunnion pin within 36 months after the effective date of this AD, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 777-32A0103, Revision 1, dated December 10, 2015.
As of the effective date of this AD, no person may install, on any airplane, any MLG aft trunnion pin that begins with serial number “EGL” or “MAL” and is not marked “BASE METAL INSPECTED.”
(1) This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Multi-Operator Message (MOM) MOM-MOM-15-0303-01B, dated May 13, 2015, which is not incorporated by reference in this AD.
(2) This paragraph provides credit for the actions specified in paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 777-32A0103, dated September 11, 2015, which is not incorporated by reference in this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (l)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane and the approval must specifically refer to this AD.
(4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(4)(i) and (k)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Eric Lin, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6412; fax: 415-917-6590; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(3) and (m)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin 777-32A0103, Revision 1, dated December 10, 2015.
(ii) Reserved.
(3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet:
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD requires a one-time inspection of the engine pylon wiring bracket on the left wing for the presence of an existing corner relief fillet, and corrective action if necessary. This AD was prompted by a report indicating that the engine pylon wiring bracket on certain airplanes was missing a corner relief fillet, which could result in stress concentration and cracking in the engine pylon wiring bracket. We are issuing this AD to detect and correct cracking in the engine pylon wiring bracket. Such cracking could result in damage to adjacent power feeders, subsequent electrical arcing in a flammable leakage zone, and consequent uncontrollable fire.
This AD is effective September 12, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 12, 2016.
We must receive comments on this AD by October 11, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email:
We received a report indicating that the engine pylon wiring bracket on certain airplanes is missing a corner relief fillet, because the engineering graphics for the engine pylon wiring bracket located on the left wing did not contain the corner relief fillet. A missing corner relief fillet could result in stress concentration and cracking in the bracket. The engineering graphics were subsequently revised to add the corner relief fillet, but the engine pylon wiring bracket part number was not changed. Therefore, brackets with and without an existing corner relief fillet have the same bracket part number. We are issuing this AD to prevent cracking in the engine pylon wiring bracket. Such cracking could result in damage to adjacent power feeders, subsequent electrical arcing in a flammable leakage zone, and consequent uncontrollable fire.
We reviewed Boeing Alert Service Bulletin B787-81205-SB570012-00, Issue 001, dated March 14, 2013. The service information describes procedures for a one-time inspection of the engine pylon wiring bracket on the left wing for the presence of existing corner relief fillets, re-identification of any bracket with an existing corner relief fillet, and replacement of any bracket without an existing corner relief fillet. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires accomplishing the actions specified in the service information described previously.
Currently, there are no domestic operators of the affected airplanes on the U.S. Register. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and
We will post all comments we receive, without change, to
Currently, there are no affected airplanes on the U.S. Register. However, if an affected airplane is imported and placed on the U.S. Register in the future, we estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary re-identification or replacement that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need re-identification or replacement:
According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 12, 2016.
None.
This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB570012-00, Issue 001, dated March 14, 2013.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a report indicating that the engine pylon wiring bracket on certain airplanes was missing a corner relief fillet, which could lead to stress concentration and cracking in the engine
Comply with this AD within the compliance times specified, unless already done.
Within 88 months after the effective date of this AD: Do a one-time general visual inspection of the engine pylon wiring bracket on the left wing for the presence of an existing corner relief fillet, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570012-00, Issue 001, dated March 14, 2013. Within 88 months after the effective date of this AD, do all applicable corrective actions specified in paragraph (g)(1) or (g)(2) of this AD.
(1) For airplanes on which the engine pylon wiring bracket has a corner relief fillet, re-identify the part number of the engine pylon wiring bracket, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570012-00, Issue 001, dated March 14, 2013.
(2) For airplanes on which the engine pylon wiring bracket does not have a corner relief fillet, replace the engine pylon wiring bracket with a new bracket, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570012-00, Issue 001, dated March 14, 2013.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin B787-81205-SB570012-00, Issue 001, dated March 14, 2013.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
(4) You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus Model A318 and A319 series airplanes, Model A320-211, -212, -214, -231, -232, and -233 airplanes, and Model A321 series airplanes. This AD was prompted by a report of a partial loss of the no-back brake (NBB) efficiency during endurance qualification tests on the trimmable horizontal stabilizer actuator (THSA). This AD requires inspecting certain THSAs to determine the number of total flight cycles the THSA has accumulated, and replacing the THSA if necessary. We are issuing this AD to prevent premature wear of the carbon friction disks on the NBB of the THSA, which could lead to reduced braking efficiency in certain load conditions, and, in conjunction with the inability of the power gear train to keep the ball screw in its last commanded position, could result in uncommanded movements of the trimmable horizontal stabilizer and loss of control of the airplane.
This AD is effective September 30, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 30, 2016.
For service information identified in this final rule, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A318 and A319 series airplanes, Model A320-211, -212, -214, -231, -232, and -233 airplanes, and Model A321 series airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0080, dated May 7, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318 and A319 series airplanes, Model A320-211, -212, -214, -231, -232, and -233 airplanes, and Model A321 series airplanes. The MCAI states:
During endurance qualification tests on A380 Trimmable Horizontal Stabilizer Actuator (THSA), a partial loss of the no-back brake (NBB) efficiency was experienced. Investigation results concluded that this particular malfunction was due to an ageing/endurance issue of the surfaces of the NBB carbon friction disks, leading to a partial loss of braking efficiency in some specific aerodynamic load conditions.
Due to design similarity on A320 family fleet, the same tests were initiated by the THSA manufacturer on certain SA [single-aisle] type THSA, sampled from the field. Subject tests confirmed that THSA Part Number (P/N) 47145 series, as installed on A320 family aeroplanes, are also affected by this partial loss of NBB efficiency.
This condition, if not detected and corrected, and in conjunction with the power gear train not able to keep the ball screw in its last commanded position, could lead to an uncommanded movement of the THS, possibly resulting in loss of control of the aeroplane.
For the reasons described above, this [EASA] AD requires [inspecting certain THSAs to determine the number of total flight cycles the THSA has accumulated and replacing THSAs having certain total flight cycles] . . . .
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Airbus requested that we refer to the latest service information: Airbus Service Bulletin A320-27-1242, Revision 01, dated February 4, 2016 (we referred to Airbus Service Bulletin A320-27-1242, dated February 9, 2015, as the appropriate source of service information for accomplishing the replacement specified in the NPRM). Airbus also requested that we provide credit for previous actions done per Airbus Service Bulletin A320-27-1242, dated February 9, 2015.
We agree with the request to refer to the latest service information. Airbus Service Bulletin A320-27-1242, Revision 01, dated February 4, 2016, includes updated information and specifies that no additional work is necessary for airplanes modified by the previous issue. We have revised paragraphs (h)(1) and (h)(2) of this AD to refer to Airbus Service Bulletin A320-27-1242, Revision 01, dated February 4, 2016. We have also added new paragraph (k) to this AD (and redesignated subsequent paragraphs accordingly) to provide credit for actions done as specified in Airbus Service Bulletin A320-27-1242, dated February 9, 2015.
United Airlines (UAL) requested that we extend the compliance times proposed in the NPRM. UAL stated that U.S. operators receive less time to prepare and plan compared to their counterparts in Europe who follow EASA AD 2015-0080, dated May 7, 2015. UAL noted that the large amount of THSAs that need to be replaced will cause cancellations, spare shortages, and interruptions to its operation. UAL recommended a later compliance time than proposed in paragraph (g)(2) of the proposed AD.
We disagree with the request to extend the compliance time. UAL did not provide data to substantiate that an extension to the compliance time will provide an acceptable level of safety. We determine AD compliance times primarily on our assessment of the safety risk. Some safety issues are more time-sensitive than others, so we consider the overall risk to the fleet, including the severity of the failure and the likelihood of the failure's occurrence.
We and our colleagues in the foreign civil airworthiness authorities (in this case, EASA) work closely with manufacturers to ensure that all appropriate actions are taken at appropriate times to mitigate risks to the fleet and address identified unsafe conditions. In addition, U.S. operators have the same opportunity as their European counterparts to prepare and plan by reviewing and providing comments to EASA's proposed airworthiness directives (PADs). An EASA PAD is a rulemaking document similar to the FAA's NPRM. In most cases, the FAA follows the intent of the AD issued by the state of design; therefore, we encourage U.S. operators to provide feedback to EASA PADs, which are accessible at the following link:
For this AD, we determined that accomplishing the replacements before specific dates, as stated in the MCAI, are necessary in order to address the identified unsafe condition in a timely manner. Therefore, we have not changed this AD in this regard. However, under the provisions of paragraph (l)(1) of this AD, we may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.
UAL requested that we remove the replacement requirement specified by paragraph (h)(2) of the proposed AD. UAL stated that the requirements in paragraphs (h)(1) and (h)(2) of the proposed AD are contradictory. UAL noted that operators will not be able to predict the future number of flight cycles. UAL stated, as an example, that a THSA having accumulated 38,000 total flight cycles on the effective date would be out of compliance with paragraph (h)(2) of the proposed AD when the AD becomes effective, since the THSA has exceeded 36,000 total flight cycles.
We disagree with the request to remove paragraph (h)(2) of this AD. However, we do find it necessary to clarify the requirements. After accomplishing each inspection required by paragraph (g) of this AD, operators must comply with paragraph (h)(1) of this AD, which mandates the first requirement for THSA replacement after each inspection of the THSAs if any part number 47145-(XXX) is found and the THSA has exceeded the corresponding flight-cycle limits specified in
Paragraph (h)(2) of this AD establishes the life limit of the THSA as of each date specified in paragraphs (g)(1) through (g)(5) of this AD and mandates replacement before the corresponding flight-cycle limit. The flight-cycle limit varies on each date specified in paragraphs (g)(1) through (g)(5) of this AD. Paragraphs (h)(1) and (h)(2) of this AD are separate requirements that do not conflict.
For example, if the THSA has accumulated 38,000 total flight cycles as of the effective date of this AD, then paragraph (h)(1) of this AD does not require replacement immediately (on the effective date of this AD) since the THSA has fewer than 40,000 total flight cycles (which is the flight-cycle limit specified in paragraph (g)(1) of this AD). That THSA would be subject to the compliance time of paragraph (h)(2) of this AD, which requires that, as of the effective date of this AD, the THSA must be replaced before exceeding 40,000 total flight cycles until the next inspection is done before December 31, 2016. The new flight-cycle limit as of that date is 36,000 total flight cycles (which is the flight-cycle limit specified in paragraph (g)(2) of this AD).
Each U.S. operator has unique fleet utilization data that can assist in predicting the number of flight cycles accumulated on the THSA and therefore can estimate when a THSA must be replaced. However, under the provisions of paragraph (l)(1) of this AD, we may approve requests for adjustments to the compliance time for replacing the THSA if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not changed this AD in this regard.
We made minor changes to the language in paragraph (j) of this AD to clarify the parts installation limitation.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Airbus Service Bulletin A320-27-1242, Revision 01, dated February 4, 2016. The service information describes procedures for replacing the THSA with a serviceable THSA. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 959 airplanes of U.S. registry.
We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $81,515, or $85 per product.
In addition, we estimate that any necessary follow-on actions would take about 21 work-hours and require parts costing $26,500, for a cost of $28,285 per product. We have no way of determining the number of aircraft that might need this action.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 30, 2016.
None.
This AD applies to Airbus airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD, all manufacturer serial numbers.
(1) Model A318-111, -112, -121, and -122 airplanes.
(2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.
(3) Model A320-211, -212, -214, -231, -232, and -233 airplanes.
(4) Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.
Air Transport Association (ATA) of America Code 27, Flight Controls.
This AD was prompted by a report of a partial loss of the no-back brake (NBB) efficiency during endurance qualification tests on the trimmable horizontal stabilizer
Comply with this AD within the compliance times specified, unless already done.
No later than each date specified in paragraphs (g)(1) through (g)(5) of this AD: Inspect the THSA to determine if it has a part number (P/N) 47145-(XXX), and, if any THSA P/N 47145-(XXX) is found, determine the total number of flight cycles accumulated since the THSA's first installation on an airplane, or since the most recent NBB replacement, whichever is later. A review of airplane delivery or maintenance records is acceptable in lieu of this inspection if the part number of the THSA can be conclusively determined from that review. In case maintenance records concerning the most recent NBB disk replacement are unavailable or incomplete, the total flight cycles accumulated since first installation of the THSA on an airplane apply.
(1) As of the effective date of this AD: The THSA flight-cycle limit (since first installation on an airplane, or since the most recent NBB replacement, whichever is later) is 40,000 total flight cycles.
(2) As of December 31, 2016: The THSA flight-cycle limit (since first installation on an airplane, or since the most recent NBB replacement, whichever is later) is 36,000 total flight cycles.
(3) As of December 31, 2017: The THSA flight-cycle limit (since first installation on an airplane, or since the most recent NBB replacement, whichever is later) is 33,600 total flight cycles.
(4) As of December 31, 2018: The THSA flight-cycle limit (since first installation on an airplane, or since the most recent NBB replacement, whichever is later) is 31,600 total flight cycles.
(5) As of December 31, 2019: The THSA flight-cycle limit (since first installation on an airplane, or since the most recent NBB replacement, whichever is later) is 30,000 total flight cycles.
For airplanes with any THSA P/N 47145-(XXX): Do the replacements required by paragraphs (h)(1) and (h)(2) of this AD.
(1) No later than each date specified in paragraphs (g)(1) through (g)(5) of this AD, replace all THSA that have reached or exceeded on each date the corresponding number of flight cycles specified in paragraphs (g)(1) through (g)(5) of this AD. Do the replacement in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-27-1242, Revision 01, dated February 4, 2016. Affected THSAs must be replaced with serviceable THSAs.
(2) As of each date specified in paragraphs (g)(1) through (g)(5) of this AD, and before exceeding the flight cycle limit corresponding to each date, as applicable: Replace each THSA with a serviceable THSA, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-27-1242, Revision 01, dated February 4, 2016.
For the purposes of this AD: A serviceable THSA is a THSA that has not exceeded the applicable flight-cycle limits, as specified paragraphs (g)(1) through (g)(5) of this AD, since first installation of the THSA on an airplane or since last NBB replacement, whichever is later.
Guidance for NBB disc replacement can be found in UTC Aerospace Systems Service Bulletin 47145-27-17, Revision 1, dated July 21, 2015.
As of each date specified in paragraphs (g)(1) through (g)(5) of this AD, as applicable, only installation of a serviceable THSA P/N 47145-(XXX) is allowed on an airplane.
This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-27-1242, dated February 9, 2015.
The following provisions also apply to this AD:
(1)
(2)
(3)
Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are not allowed.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0080, dated May 7, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(3) and (o)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A320-27-1242, Revision 01, dated February 4, 2016.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Bombardier, Inc. Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes. This AD was prompted by two in-service incidents reported on Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes regarding a loss of all air data information in the flight deck. This AD requires revision of the airplane flight manual (AFM) to provide procedures to guide the crew to stabilize the airplane's airspeed and attitude for continued safe flight. We are issuing this AD to prevent loss of air data information that may affect continued safe flight.
This AD is effective September 30, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 30, 2016.
For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax 514-855-7401; email:
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7301; fax: 516-794-5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Bombardier, Inc. Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes. The NPRM published in the
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2015-08, dated April 28, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Bombardier, Inc. Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes. The MCAI states:
Two in-service incidents have been reported on CL-600-2C10 aeroplanes regarding a loss of all air data information in the cockpit. The air data information was recovered as the aeroplane descended to lower altitudes. An investigation determined that the root cause in both events was high altitude icing (ice crystal contamination). If not addressed, this condition may affect continued safe flight.
Due to similarities in the air data systems, such events could happen on all Bombardier CRJ models, CL-600-2B19, CL-600-2C10, CL-600-2D15, CL-600-2D24 and CL-600-2E25. Therefore, the corrective actions for these models will be mandated once their respective Airplane Flight Manual (AFM) revisions become available.
This [Canadian] AD mandates the incorporation of AFM procedures to guide the crew to stabilize the aeroplanes airspeed and attitude for continued safe flight.
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
The Air Line Pilots Association stated that the AFM revision will not address the root cause of the high-altitude icing (ice crystal contamination), and requested that further investigation be done for the ice crystal contamination issue and remedies be provided in addition to the AFM amendments.
We agree that the AFM revision will not address the root cause of the high-altitude icing (ice crystal contamination). The manufacturer is investigating the issue, but there is no timetable for a final resolution. Should the manufacturer develop modifications to prevent this problem, the FAA will consider further rulemaking. The incorporation of the AFM procedures is meant to be used to guide the crew on how to stabilize the airplane airspeed and altitude for continued safe flight in icing conditions. However, further investigation into this matter extends beyond the scope of this AD.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Bombardier, Inc. has issued Emergency Procedure 1., Unreliable
Required actions in this AD apply only to Bombardier, Inc. Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes. We may consider issuing further rulemaking on the other Bombardier airplane models identified previously.
We estimate that this AD affects 230 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 30, 2016.
None.
This AD applies to all Bombardier, Inc. Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 34, Navigation.
This AD was prompted by reports of two in-service incidents on Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes regarding a loss of all air data information in the flight deck. We are issuing this AD to prevent air data information loss that may affect continued safe flight.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the Emergency Procedures section of the AFM to include the information in Emergency Procedure 1., Unreliable Airspeed, of Section 03-19, Emergency Procedures—Unreliable Airspeed, of Chapter 3, Emergency Procedures, in Volume 1 of the Bombardier CRJ Series Regional Jet CL-600-2D15 and CL-600-2D24 AFM CSP C-012, Revision 11A, dated May 25, 2015.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2015-08, dated 28 April, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Section 03-19, Emergency Procedures—Unreliable Airspeed, of Chapter 3, Emergency Procedures, in Volume 1 of the Bombardier CRJ Series Regional Jet CL-600-2D15 and CL-600-2D24 Airplane Flight Manual CSP C-012, Revision 11A, dated May 25, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax 514-855-7401; email:
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 2009-13-04 for RUAG Aerospace Services GmbH Models 228-100, 228-101, 228-200, 228-201, 228-202, and 228-212 airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as excessive wear on the guide pin of the power lever or condition lever, which could cause functional loss of the flight idle stop. We are issuing this AD to require actions to address the unsafe condition on these products.
This AD is effective September 30, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of September 30, 2016.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact RUAG Aerospace Services GmbH, Dornier 228 Customer Support, P.O. Box 1253, 82231 Wessling, Federal Republic of Germany, telephone: +49 (0) 8153-30-2280; fax: +49 (0) 8153-30-3030; email:
Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4123; fax: (816) 329-4090; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to RUAG Aerospace Services GmbH Models 228-100, 228-101, 228-200, 228-201, 228-202, and 228-212 airplanes. That NPRM was published in the
The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI (EASA AD No.: 2009-0031R1) states that:
Excessive wear on a guide pin of a power lever was detected during inspections. The failure of a power lever or condition lever guide pin could cause functional loss of the flight idle stop.
This condition, if not corrected, could lead to inadvertent activation of the beta mode in flight, possibly resulting in loss of control of the aeroplane.
Prompted by this finding, RUAG issued Alert Service Bulletin (ASB) ASB-228-279 to provide inspection instructions. Consequently, EASA issued AD 2009-0031 to require repetitive detailed inspections of the guide pins of the power levers and condition levers, and replacement of any pin that exceeds the allowable wear-limits.
Since that AD was issued, further analysis has determined that the inspection interval, in case of no pin replacement, can be extended and RUAG published Revision 1 of ASB-228-279, which also included landings (expressed in this AD as flight cycles—FC) as a determining factor.
For the reason described above, this AD revises EASA AD 2009-0031, amending the compliance times without changing the technical requirements, and also introducing some editorial changes for standardization.
EASA revised the MCAI (EASA AD No.: 2009-0031R2) to incorporate changes to the applicability. The FAA had already incorporated these changes in the NPRM so no changes to the final rule are necessary.
The MCAI can be found in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (74 FR 29116; June 19, 2009) or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial
• Are consistent with the intent that was proposed in the NPRM (74 FR 29116; June 19, 2009) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (74 FR 29116; June 19, 2009).
We reviewed the RUAG Aerospace Services GmbH Dornier 228 Alert Service Bulletin No. ASB-228-279, revision 1, dated September 22, 2015. The service information describes procedures for repetitive inspections of the guide pins of the power and condition levers and replacement of those pins if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD will affect 18 products of U.S. registry. We also estimate that it would take about 20 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $10 per product.
Based on these figures, we estimate the cost of the AD on U.S. operators to be $30,780, or $1,710 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective September 30, 2016.
This AD supersedes AD 2009-13-04, Amendment 39-15943 (74 FR 29116; June 19, 2009) (“AD 2009-13-04”).
This AD applies to RUAG Aerospace Services GmbH Models 228-100, 228-101, 228-200, 228-201, 228-202, and 228-212 airplanes, all serial numbers, certificated in any category.
Air Transport Association of America (ATA) Code 76: Engine Controls.
This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as excessive wear on the guide pin of the power lever or condition lever, which could cause functional loss of the flight idle stop. We are issuing this proposed AD to amend the compliance times of the guide pin inspections.
Unless already done, do the following actions in paragraphs (f)(1) through (4) of this AD based on a compliance time of hours time-in-service (TIS) or flight cycles, whichever occurs first. If the flight cycles or hours TIS of the throttle box assembly is unknown, use the hours TIS of the airplane to determine the compliance time for the inspection.
(1) For throttle box assemblies with less than 9,600 hours TIS or 9,600 flight cycles since installed: Inspect the guide pins of the power and condition levers for excessive wear following the Accomplishment Instructions in paragraph 2 of RUAG Aerospace Services GmbH Dornier 228 Alert Service Bulletin No. ASB-228-279, revision 1, dated September 22, 2015, at the following times:
(i) Initially, unless already done within the last 1,200 hours TIS or 1,200 flight cycles as of July 24, 2009 (the effective date retained from AD 2009-13-04), before or upon accumulating 9,600 hours TIS or 9,600 flight cycles, or within the next 100 hours TIS or 100 flight cycles after July 24, 2009 (the effective date retained from AD 2009-13-04), whichever occurs later, inspect the guide pins of the power and condition levers for excessive wear; and
(ii) Repetitively thereafter within 4,800 hours TIS or 4,800 flight cycles since any previous inspection in which the power and condition levers guide pins were not replaced or within 9,600 hours TIS or 9,600 flight cycles, whichever occurs first, since the previous inspection in which the power and condition levers guide pins were replaced.
(2) For throttle box assemblies with 9,600 hours TIS or more or 9,600 flight cycles or more but less than 13,200 hours TIS or
(i) Repetitively inspect the guide pins of the power and condition levers for excessive wear thereafter within 4,800 hours TIS or 4,800 flight cycles since any previous inspection in which the power and condition levers guide pins were not replaced; or
(ii) Repetitively inspect the guide pins of the power and condition levers for excessive wear within 9,600 hours TIS or 9,600 flight cycles since the previous inspection in which the power and condition levers guide pins were replaced.
(3) For throttle box assemblies with 13,200 hours TIS or more or 13,200 flight cycles or more since installed: Within 100 hours TIS or 100 flight cycles after July 24, 2009 (the effective date retained from AD 2009-13-04) inspect the guide pins of the power and condition levers for excessive wear following the Accomplishment Instructions in paragraph 2 of RUAG Aerospace Services GmbH Dornier 228 Alert Service Bulletin No. ASB-228-279, revision 1, dated September 22, 2015, at the following times:
(i) Initially within the next 100 hours TIS or 100 flight cycles after July 24, 2009 (the effective date retained from AD 2009-13-04); and
(ii) Repetitively thereafter within 4,800 hours TIS or 4,800 flight cycles since any previous inspection in which the power and condition levers guide pins were not replaced or within 9,600 hours TIS or 9,600 flight cycles since the previous inspection in which the power and condition levers guide pins were replaced.
(4) For all throttle box assemblies: Before further flight after any inspection required in paragraph (f)(1), (2), or (3) of this AD, replace any guide pin that exceeds the acceptable wear-limits as defined in paragraph 4.1 of RUAG Aerospace Services GmbH Dornier 228 Alert Service Bulletin No. ASB-228-279, revision 1, dated September 22, 2015.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2009-0031R1, dated March 29, 2016, and EASA AD No.: 2009-0031R2, dated June 28, 2016, for related information. The MCAI can be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) RUAG Aerospace Services GmbH Dornier 228 Alert Service Bulletin No. ASB-228-279, revision 1, dated September 22, 2015.
(ii) Reserved.
(3) For RUAG Aerospace Services GmbH service information identified in this AD, contact RUAG Aerospace Services GmbH, Dornier 228 Customer Support, P.O. Box 1253, 82231 Wessling, Federal Republic of Germany, telephone: +49 (0) 8153-30-2280; fax: +49 (0) 8153-30-3030; email:
(4) You may view this service information at FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the Internet at
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
U.S. Customs and Border Protection; Department of the Treasury.
Interim final rule; solicitation of comments.
This document amends the U.S. Customs and Border Protection regulations to implement section 901 of the Trade Facilitation and Trade Enforcement Act of 2015 by raising from $200 to $800 the value of certain articles that may be imported by one person on one day free of duty and tax. This document also makes clarifying and conforming amendments to the regulations.
You may submit comments, identified by docket number USCBP-2016-0057, by
•
•
Randy Mitchell, Director, Commercial Operation, Revenue and Entry, Trade Policy and Programs, Office of Trade, U.S. Customs and Border Protection, (202) 863-6532.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. Comments that will provide the most assistance to CBP in finalizing these regulations will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. CBP is also interested in receiving comments regarding the collection of data on behalf of Partner Government Agencies (PGAs) for shipments valued below $800.
On February 24, 2016, President Obama signed into law the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) (Pub. L. 114-125). Prior to enactment of the TFTEA, section 321(a)(2)(C) of the Tariff Act of 1930 (19 U.S.C. 1321(a)(2)(C)) authorized CBP to provide an administrative exemption to admit free from duty and tax shipments of merchandise (other than bona fide gifts and certain personal and household goods) imported by one person on one day having an aggregate fair retail value in the country of shipment not less than $200. Section 901(c) of the TFTEA amended section 1321(a)(2)(C) by increasing the value of this administrative exemption from $200 to $800. Pursuant to section 901(d) of TFTEA, the effective date of this amendment was the 15th day after the date of enactment,
CBP implements the administrative exemption provided for in 19 U.S.C. 1321 in its regulations at 19 CFR 10.151 and 10.153. The administrative exemption amount is also referenced in various other sections in the CBP regulations: §§ 128.21(a)(4)(ii); 128.24(d) and (e); 143.21(l)(1); 143.23(j); 143.26; and 145.31. In all of the previously listed sections that currently provide that the 19 U.S.C. 1321(a)(2)(C) administrative exemption amount is $200, CBP is amending the regulations to reflect that the new amount is $800.
Under 19 U.S.C. 1321(b), the Secretary of the U.S. Department of the Treasury is authorized to promulgate regulations to prescribe exceptions to any exemption provided for in section 1321(a) whenever the Secretary finds that such action is necessary for any reason to protect the revenue or to prevent unlawful importations.
This rule also amends the scope of alcohol and tobacco products covered by the limitation in paragraph (e) of section 10.153, to conform to other past statutory changes. Perfume is removed from the list of products excluded from the administrative exemption because the excise tax on such products was eliminated in 1995 pursuant to section 136 of the Uruguay Round Agreements Act, Public Law 103-465. Paragraph (e) of section 10.153 is also amended pursuant to amendments to the Internal Revenue Code, Section 5701, which increased excise taxes for smokeless tobacco, pipe tobacco, roll-your-own tobacco, and cigarette tubes and papers. 26 U.S.C. 5701, as amended by the Children's Health Insurance Program Reauthorization Act of 2009 (Pub. L. 111-3).
This rule also adds a new paragraph (h) in section 10.153 to clarify that regarding shipments that qualify for the 19 U.S.C. 1321 administrative exemption, the importing party is not exempt from having to pay any applicable excise taxes collected by other agencies on imported goods. It is also noted that pursuant to 19 CFR 24.24(d)(3), the harbor maintenance tax will not be assessed on loadings or unloadings of cargo in which the shipment would be entitled to be entered under informal entry procedures.
This document also revises paragraph (j) of § 143.23 to clarify that different dollar amounts apply to articles that are bona fide gifts and articles that are shipped from the Virgin Islands, Guam, and American Samoa. This document also revises paragraph (j) of § 143.23 to reflect that the increase in the value of shipments from $200 to $800 only applies to shipments that qualify for the administrative exemption under sections 10.151 and 128.24(e).
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. In particular, CBP is seeking comments on how CBP can maintain the collection of data required by Partner Government Agencies (PGAs) for imported merchandise to prevent unlawful importations when shipments of merchandise valued below $800 that qualify for an administrative exemption are admitted through “release from manifest.” (Generally, such shipments are entered by the carrier and released by CBP based on information contained on the manifest or bill of lading provided by the carrier.) CBP is aware that the manifest information may not contain all the necessary information required by PGAs for admissibility purposes.
The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553 govern agency rulemaking procedures. Section 553(b) of the APA generally requires notice and public comment before issuance of a final rule. In addition, section 553(d) of the APA requires that a final rule have a 30-day delayed effective date. The APA, however, provides exceptions from the prior notice and public comment requirement and the delayed effective date requirements, when an agency for good cause finds that such procedures are impracticable, unnecessary, or contrary to the public interest.
Treasury and CBP find that prior notice and comment procedures are unnecessary and that good cause exists to issue these regulations effective upon publication. By immediately effectuating this interim rule, CBP can avoid inconsistent application of the exemption and eliminate confusion that may arise among importers with regard
Pursuant to section 901(d) of the TFTEA, Congress established March 10, 2016, as the effective date of the increase in the administrative exemption under 19 U.S.C. 1321(a)(2)(C). The clear intent of Congress is that this amendment be rapidly implemented; therefore the regulations must be changed to conform to TFTEA's statutory amendment.
In addition, pursuant to the authority of the Secretary of the Treasury under 26 U.S.C. 7805(b)(3), regulations implementing the internal revenue laws can be made immediately effective to prevent abuse. Under that authority, these regulations reflect intervening statutory changes to section 5701 of the Internal Revenue Code, which increased excise taxes for smokeless tobacco, pipe tobacco, roll-your-own tobacco, and cigarette tubes and papers.
Accordingly, pursuant to 5 U.S.C. 553(b) and (d) and the Secretary of the Treasury's authority under 19 U.S.C. 1321(b) and 26 U.S.C. 7805, the requirements for prior notice and comment and a delay in effective date are inapplicable; however, CBP is soliciting comments on this interim rule and will consider all comments received before issuing a final rule.
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (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. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866.
This section examines the impact of the rule on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 601
As there is no new collection of information required in this document, the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) are inapplicable.
This document is being issued in accordance with § 0.1(a)(1) of the CBP Regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain customs revenue functions.
Customs duties and inspection, Entry of merchandise, Exports, Imports, Reporting and recordkeeping requirements.
Customs duties and inspection, Entry of merchandise, Imports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Customs duties and inspection, Entry, Express consignments, Imports, Reporting and recordkeeping requirements.
Customs duties and inspection, Entry of merchandise, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements.
For the reasons stated above in the preamble, CBP amends parts 10, 12, 128, 143, and 145 of title 19 of the Code of Federal Regulations (19 CFR parts 10, 12, 128, 143, and 145) as follows:
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314.
(e) No alcoholic beverage, cigars (including cheroots and cigarillos) and cigarettes containing tobacco, cigarette tubes, cigarette papers, smoking tobacco (including water pipe tobacco, pipe tobacco, and roll-your-own tobacco), snuff, or chewing tobacco, shall be exempted from the payment of duty and tax under § 10.151 or § 10.152.
(h) The exemption provided for in § 10.151 is not to be allowed with respect to any tax imposed under the Internal Revenue Code collected by other agencies on imported goods.
19 U.S.C. 58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1321, 1484, 1498, 1551, 1555, 1556, 1565, 1624.
19 U.S.C. 66, 1321, 1414, 1481, 1484, 1498, 1624, 1641.
(j) Except for mail importations (see §§ 145.31 and 145.32 of this chapter), or in the case of personal written or oral declarations (see §§ 148.12, 148.13, and 148.62 of this chapter), a shipment of merchandise that qualifies for informal entry under 19 U.S.C. 1498 may be entered, including the information listed in paragraph (k) of this section, by presenting the bill of lading or a manifest listing each bill of lading when:
(1) The value of the shipment does not exceed $100 in the case of a bona fide gift from a person in a foreign country to a person in the United States and the shipment meets the requirements in § 10.152 of this chapter (see § 10.152 of this chapter);
(2) The value of the shipment does not exceed $200 in the case of articles (including bona fide gifts) from the Virgin Islands, Guam, and American Samoa and the shipment meets the requirements in § 10.152 of this chapter (see § 10.152 of this chapter); or
(3) The value of the shipment does not exceed $800 and the shipment satisfies the requirements in § 10.151 of this chapter (see §§ 10.151 and 128.24(e) of this chapter).
(k) The following information is required to be filed as a part of entry made under paragraph (j) of this section:
(1) Country of origin of the merchandise;
(2) Shipper name, address and country;
(3) Ultimate consignee name and address;
(4) Specific description of the merchandise;
(5) Quantity;
(6) Shipping weight; and
(7) Value.
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624.
Drug Enforcement Administration, Department of Justice.
Interim final rule with request for comments.
The Drug Enforcement Administration is placing the substance thiafentanil (4-(methoxycarbonyl)-4-(N-phenmethoxyacetamido)-1-[2-(thienyl)ethyl]piperidine), including its isomers, esters, ethers, salts and salts of isomers, esters and ethers as possible, into schedule II of the Controlled Substances Act. This scheduling action is pursuant to the Controlled Substances Act, as revised by the Improving Regulatory Transparency for New Medical Therapies Act which was signed into law on November 25, 2015.
The effective date of this rule is August 26, 2016. Interested persons may file written comments on this rule in accordance with 21 U.S.C. 811(j)(3) and 21 CFR 1308.43(g). Electronic comments must be submitted, and written comments must be postmarked, on or before September 26, 2016. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
Interested persons, defined at 21 CFR 1300.01 as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811),” may file a request for hearing or waiver of hearing pursuant to 21 CFR 1308.44 and in accordance with 21 CFR 1316.45 and/or 1316.47, as applicable. Requests for hearing and waivers of an opportunity for a hearing or to participate in a hearing must be received on or before September 26, 2016.
To ensure proper handling of comments, please reference “Docket No. DEA-375” on all correspondence, including any attachments.
•
•
•
Michael J. Lewis, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
Please note that all comments received are considered part of the public record. They will, unless reasonable cause is given, be made available by the Drug Enforcement
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify the confidential business information to be redacted within the comment.
Comments containing personal identifying information and confidential business information identified as directed above will generally be made publicly available in redacted form. If a comment has so much confidential business information or personal identifying information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to
An electronic copy of this document and supplemental information, including the complete Department of Health and Human Services and Drug Enforcement Administration eight-factor analyses, to this interim final rule are available at
Pursuant to 21 U.S.C. 811(a), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of the Administrative Procedure Act (APA), 5 U.S.C. 551-559. 21 CFR 1308.41-1308.45; 21 CFR part 1316, subpart D. In accordance with 21 CFR 1308.44(a)-(c), requests for a hearing, notices of appearance, and waivers of an opportunity for a hearing or to participate in a hearing may be submitted only by interested persons, defined as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811).” 21 CFR 1300.01. Requests for a hearing and notices of participation must conform to the requirements of 21 CFR 1308.44(a) or (b), as applicable, and include a statement of the interest of the person in the proceeding and the objections or issues, if any, concerning which the person desires to be heard. Any waiver of an opportunity for a hearing must conform to the requirements of 21 CFR 1308.44(c), including a written statement regarding the interested person's position on the matters of fact and law involved in any hearing.
Please note that pursuant to 21 U.S.C. 811(a), the purpose and subject matter of the hearing are restricted to “(A) find[ing] that such drug or other substance has a potential for abuse, and (B) mak[ing] with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed . . . .” Requests for a hearing and waivers of participation in the hearing should be submitted to the DEA on or before the deadline specified above, using the address information provided therein.
Thiafentanil, known chemically as 4-(methoxycarbonyl)-4-(
Thiafentanil will be marketed as thiafentanil oxalate, 4-(methoxycarbonyl)-4-(
Under the Controlled Substances Act (CSA), as amended in 2015 by the Improving Regulatory Transparency for New Medical Therapies Act (Pub. L. 114-89), where the DEA receives notification from HHS that the Secretary has indexed a drug under section 572 of the FDCA, the DEA is required to issue an interim final rule controlling the drug not later than 90 days after receiving such notification from HHS. 21 U.S.C. 811(j). Accordingly, the DEA is issuing this interim final rule controlling thiafentanil.
When controlling a drug pursuant to section 811(j), the DEA must apply the scheduling criteria of subsections 811(b), (c), and (d) and section 812(b). 21 U.S.C. 811(j)(3). In accordance with these criteria, the DEA has reviewed the scientific and medical evaluation and scheduling recommendation provided by the HHS, along with all other relevant data, and completed its own eight-factor review document on thiafentanil pursuant to 21 U.S.C. 811(c). As explained below, based on these considerations, the DEA concludes that thiafentanil meets the criteria for placement in schedule II of the CSA.
On November 28, 2011, the HHS provided the DEA with its initial scientific and medical evaluation and scheduling recommendation regarding thiafentanil. Pursuant to 21 U.S.C. 811(b), this document contained an eight-factor analysis of the abuse potential of thiafentanil as a new drug, along with the HHS' recommendation to control thiafentanil and its salts under schedule II of the CSA. Subsequently, on March 23, 2016, the HHS provided the DEA with a supplement to its 2011 analysis, which indicated that the HHS/FDA planned to add Thianil (thiafentanil oxalate) to the Index for use in the immobilization of non-domestic, non-food-producing minor species hoofstock and reiterated their recommendation that thiafentanil be placed in schedule II of the CSA. By
Pursuant to 21 U.S.C. 811(j), and based on the HHS recommendation, MUMS Act indication by the HHS/FDA, and the DEA's determination, the DEA finds that thiafentanil has a high potential for abuse, a currently accepted medical use with severe restrictions, and that abuse of thiafentanil may lead to severe psychological or physical dependence. Accordingly, the DEA is issuing this interim final rule to add thiafentanil (4-(methoxycarbonyl)-4-(
Included below is a brief summary of each factor as analyzed by the HHS and the DEA, and as considered by the DEA in its scheduling action. Please note that the DEA and HHS analyses, along with the HHS supplement, are available in their entirety under “Supporting Documents” in the public docket for this interim final rule at
1.
According to the HHS, thiafentanil is a synthetic analogue of fentanyl and is structurally related to other fentanyl-like opioids such as sufentanil (schedule II) and carfentanil (schedule II). It acts as a potent µ-opioid receptor agonist and produces strong morphine-like effects in animals. It is only intended for the immobilization of non-domestic, non-food-producing minor species hoofstock. Thiafentanil has been used in a manner similar to other opioid immobilizing agents such as etorphine hydrochloride (schedule II) and carfentanil (schedule II), which are approved only for veterinary use as animal immobilization agents. The abuse potential of thiafentanil has not been evaluated in humans or in animal behavioral models that are predictors of abuse by humans. Because thiafentanil shares chemical and pharmacological similarities with schedule II fentanyl and its analogues, the abuse potential of thiafentanil is considered similar to that of schedule II opioid substances such as sufentanil and carfentanil.
Pharmacologically, as a potent µ opioid receptor agonist, thiafentanil is slightly less potent than carfentanil, which is 100 times more potent than fentanyl and 10,000 times more potent than morphine. Thiafentanil is a potent fentanyl analogue. Thus, it is reasonable to assume that there will be potentially significant diversion of thiafentanil from legitimate channels by people who have access to it, and that thiafentanil would be used without medical advice, therefore causing substantial hazards to the users or to the safety of the community if not controlled. The chemical and potent opioid-like pharmacological properties of thiafentanil predict that its risk to the public health is likely to be similar to fentanyl (schedule II) and its analogues such as carfentanil (schedule II), sufentanil (schedule II) and alpha-methylfentanyl (schedule I).
2.
The HHS eight-factor review document described a study directly comparing the immobilizing effects of thiafentanil (15 mg) and carfentanil (2 or 4 mg) in elk in which thiafentanil produced a faster immobilization effect (0.7 to 2.2 minutes) than carfentanil. In addition, the elk returned to standing 0.9 to 1.4 minutes faster under the thiafentanil condition. This study appears to support a faster immobilization and recovery time with thiafentanil relative to carfentanil. However, the authors stated that the role of the increased dose of thiafentanil is unknown.
Animal studies described by the HHS demonstrated that the effects of thiafentanil and carfentanil are completely reversed by naltrexone. As a µ-opioid receptor antagonist, naltrexone can reverse the effects of a variety of opioid drugs including thiafentanil and carfentanil. Those studies suggest that thiafentanil possesses a neuro-pharmacological mechanism of action similar to other schedule II opioid drugs with a high abuse potential.
According to HHS' review, Thianil (thiafentanil) is currently approved and registered for use in the Republic of South Africa. Thiafentanil oxalate is suggested as a drug of choice in the capture of exotic and ungulate wildlife species.
3.
4.
Current data from the National Forensic Laboratory System (NFLIS),
5.
6.
HHS described that thiafentanil's labeling indicates that it is solely intended for use by zoologic, wildlife, or exotic animal veterinarians or field biologists who have received training and are supervised by veterinarians. The sponsor recommends the use of handling protocols similar to those in place for other scheduled potent opioids such as carfentanil. HHS further indicated that thiafentanil should be handled in teams consisting of at least two individuals knowledgeable about the hazards of working with potent μ-opioid agonist substances. Personal protective equipment such as latex gloves and protective eyewear should be used and syringes must be disposed of properly. If exposure to thiafentanil occurs in a remote or distant environment, veterinary naltrexone is recommended for use as a reversal agent. The label information will further state that thiafentanil must never be used unless an adequate amount of reversal agent (naltrexone hydrochloride) is immediately available.
HHS also describes the risk of thiafentanil intoxication upon ingestion of animals immobilized with thiafentanil. The label information states that thiafentanil is not intended for human or animal consumption or in non-food producing minor species that become eligible for consumption by humans or food-producing animals. Because thiafentanil, similar to carfentanil, etorphine hydrochloride and diprenorphine, is a potent μ-opioid receptor agonist, it will be subject to specialized handling, distribution and storage procedures similar to those applicable for carfentanil, etorphine hydrochloride and diprenorphine as set forth in 21 CFR parts 1301 and 1305. As a result, this interim final rule revises 21 CFR 1301.74(g), 1301.75(e), 1305.07 introductory text and paragraph (a), and 1305.17(d) to include “thiafentanil.”
7.
As cited by the HHS review, a double-blind abuse liability study examining intravenous fentanyl, buprenorphine, heroin, morphine, and oxycodone in methadone-maintained patients reported that fentanyl produced subjective effects similar to heroin (schedule I) on several outcome measures indicating that the two drugs produce similar subjective effects. It also demonstrates the psychic dependence liability of fentanyl, and thiafentanil is expected to produce effects similar to fentanyl and to present a similar risk of psychic and physiological dependence. There has been a major increase in abuse of opioids analgesics in the United States (HHS review document, 2011; Compton and Volkow, 2006). Thiafentanil, similar to these opioid analgesics, presents a risk of severe psychic and physiological dependence.
8.
The CSA lists the findings required to place a drug or other substance in any particular schedule (I, II, III, IV, or V). 21 U.S.C. 812(b). After consideration of the analysis and recommendation of the Assistant Secretary for Health of the HHS and review of all available data, the Acting Administrator of the DEA, pursuant to 21 U.S.C. 812(b)(2), finds that:
1. Thiafentanil has a high potential for abuse. Based on its structural and pharmacological properties, thiafentanil has an abuse potential that is comparable to other schedule II opioid drugs such as fentanyl, carfentanil, and sufentanil;
2. FDA determined that Thianil (thiafentanil oxalate) meets the requirements for addition to the Index as set forth by the MUMS Act, 2004 and accordingly added Thianil (thiafentanil oxalate) to the Index of Legally Marketed Unapproved New Animal Drugs for Minor Species (the Index) under section 572 of the Federal Food, Drug, and Cosmetic Act. Thianil (thiafentanil oxalate) will be legally marketed in the United States and will have an accepted medical use with severe restrictions;
3. Due to the chemical and pharmacological similarities of thiafentanil to other schedule II fentanyl derivatives, abuse of thiafentanil may lead to severe psychological or physical dependence.
Based on these findings, the Acting Administrator of the DEA concludes that thiafentanil, including its isomers, esters, ethers, salts and salts of isomers, esters and ethers whenever the existences of such isomers, esters, ethers, and salts is possible warrants control in schedule II of the CSA. 21 U.S.C. 812(b)(2).
Thiafentanil is subject to the CSA's schedule II regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, dispensing, importing, exporting, research, and conduct of instructional
1.
2.
3.
4.
5.
6.
Any person who becomes registered with the DEA to handle thiafentanil must take an initial inventory of all stocks of controlled substances (including thiafentanil) on hand on the date the registrant first engages in the handling of controlled substances, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.
After the initial inventory, every DEA registrant must take a new inventory of all stocks of controlled substances (including thiafentanil) on hand every two years, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.
7.
8.
9.
10.
11.
12.
Public Law 114-89 was signed into law, amending 21 U.S.C. 811. This amendment provides that in cases where a new drug is (1) approved or indexed by the Department of Health and Human Services (HHS) and (2) HHS recommends control in CSA schedule II-V, the DEA shall issue an interim final rule scheduling the drug within 90 days. Additionally, the law specifies that the rulemaking shall become immediately effective as an interim final rule without requiring the DEA to demonstrate good cause. Therefore, the DEA has determined that the notice and comment requirements of section 553 of the APA, 5 U.S.C. 553, do not apply to this scheduling action.
In accordance with Public Law 114-89, this scheduling action is subject to formal rulemaking procedures performed “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the procedures and criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.
This rulemaking does not have federalism implications warranting the application of Executive Order 13132. The rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and
This rule does not have tribal implications warranting the application of Executive Order 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
In accordance with 5 U.S.C. 603(a), “[w]henever an agency is required by [5 U.S.C. 553], or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretive rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.” As noted in the above discussion regarding applicability of the Administrative Procedure Act, the DEA has determined that the notice and comment requirements of section 553 of the APA, 5 U.S.C. 553, do not apply to this scheduling action. Consequently, the RFA does not apply to this interim final rule.
In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501
This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act (CRA)). This rule will not result in: An annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign based companies in domestic and export markets. However, pursuant to the CRA, the DEA has submitted a copy of this interim final rule to both Houses of Congress and to the Comptroller General.
Administrative practice and procedure, Drug traffic control, Security measures.
Drug traffic control, Reporting and recordkeeping requirements.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, the DEA amends 21 CFR parts 1301, 1305 and 1308 as follows:
21 U.S.C. 821, 822, 823, 824, 831, 871(b), 875, 877, 886a, 951, 952, 953, 956, 957, 958, 965.
(g) Before the initial distribution of thiafentanil, carfentanil, etorphine hydrochloride and/or diprenorphine to any person, the registrant must verify that the person is authorized to handle the substance(s) by contacting the Drug Enforcement Administration.
(e) Thiafentanil, carfentanil, etorphine hydrochloride and diprenorphine shall be stored in a safe or steel cabinet equivalent to a U.S. Government Class V security container.
21 U.S.C. 821, 828, 871(b), unless otherwise noted.
A supplier of thiafentanil, carfentanil, etorphine hydrochloride, or diprenorphine, if he or she determines that the purchaser is a veterinarian engaged in zoo and exotic animal practice, wildlife management programs, or research, and is authorized by the Administrator to handle these substances, may fill the order in accordance with the procedures set forth in § 1305.17 except that:
(a) A DEA Form 222 or an electronic order for thiafentanil, carfentanil, etorphine hydrochloride, and diprenorphine must contain only these substances in reasonable quantities.
(d) The supplier of thiafentanil, carfentanil, etorphine hydrochloride, and diprenorphine must maintain DEA Forms 222 for these substances separately from all other DEA Forms 222 and records required to be maintained by the registrant.
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
(c) * * *
Under Secretary of Defense for Personnel and Readiness, Department of Defense.
Interpretive rule.
The Department of Defense (Department) is interpreting its regulation implementing the Military Lending Act (the MLA). The MLA as implemented by the Department, limits the military annual percentage rate (MAPR) that a creditor may charge to a maximum of 36 percent, requires certain disclosures, and provides other substantive consumer protections on “consumer credit” extended to Service members and their families. On July 22, 2015, the Department amended its regulation primarily for the purpose of extending the protections of the MLA to a broader range of closed-end and open-end credit products (the July 2015 Final Rule). This interpretive rule provides guidance on certain questions the Department has received regarding compliance with the July 2015 Final Rule.
Marcus Beauregard, 571-372-5357.
In July, 2015, the Department of Defense (Department) issued a final rule
Subsequently, the Department received requests to clarify its interpretation of points raised in the July 2015 Final Rule. The Department is issuing this interpretive rule to inform the public of its views. The Department has chosen to provide this guidance in the form of a question and answer document to assist industry in complying with the July 2015 Final Rule. This interpretive rule does not substantively change the regulation implementing the MLA, but rather merely states the Department's preexisting interpretations of an existing regulation. Therefore, under 5 U.S.C. 553(b)(A), this rulemaking is exempt from the notice and comment requirements of the Administrative Procedure Act, and, pursuant to 5 U.S.C. 553(d)(2), this rule is effective immediately upon publication in the
The following questions and answers represent official interpretations of the Department on issues related to 32 CFR part 232. For ease of reference, the following terms are used throughout this document: MLA refers to the Military Lending Act (codified at 10 U.S.C. 987); MAPR refers to the military annual percentage rate, as defined in 32 CFR 232.3(p); TILA refers to the Truth in Lending Act (codified at 15 U.S.C. 1601
The MLA regulation defines “consumer credit” as credit offered or extended to a covered borrower primarily for personal, family or household purposes that is either subject to a finance charge or payable by a written agreement in more than four installments, with some exceptions. The exceptions include: Residential mortgage transactions; purchase money credit for a vehicle or personal property that is secured by the purchased vehicle or personal property; certain transactions exempt from Regulation Z (not including transactions exempt under 12 CFR 1026.29); and credit extended to non-covered borrowers consistent with 32 CFR 232.5(b). Although coverage by the MLA and the MLA regulation is not completely identical to that of TILA and Regulation Z, the July 2015 Final Rule amends the definition of consumer credit under the MLA to be more consistent with how credit is defined under TILA. The supplementary information to the July 2015 Final Rule states:
As proposed, the Department is amending its regulation so that, in general, consumer credit covered under the MLA would be defined consistently with credit that for decades has been subject to TILA, namely: Credit offered or extended to a covered borrower primarily for personal, family, or household purposes, and that is (i) subject to a finance charge or (ii) payable by a written agreement in more than four installments.
The MLA regulation also defines “closed-end credit” and “open-end credit” with express references to the definitions of the same terms in Regulation Z.
The supplementary information to the July 2015 Final Rule illustrates how to apply these standards specifically with respect to overdraft products and services.
Thus, whether or not a particular overdraft product or service is “consumer credit” under the MLA regulation depends on whether the product or service meets each element of the definition of “consumer credit” and whether an exception applies.
Furthermore, § 232.4(c)(2)(ii)(A) states that the MAPR shall be calculated following the rules set forth in 12 CFR 1026.14(c) and (d) of Regulation Z. Thus, the reference in § 232.4(c)(2)(ii)(B) to a situation in which the MAPR cannot be calculated in a billing cycle, because there is no balance, relates solely to the situation like the one described in 12 CFR 1026.14(c)(2), which is the only provision in 12 CFR 1026.14(c) and (d) that describes the inability to calculate an effective annual percentage rate when there is no balance in the billing cycle. 12 CFR 1026.14(c)(2) discusses how to compute an effective annual percentage rate when the charge imposed during the billing cycle is or includes a minimum, fixed, or other charge not due to the application of a periodic rate, other than a charge with respect to any specific transaction during the billing cycle. Under 12 CFR 1026.14(c)(2), if there is no balance to which the charge is applicable, an effective annual percentage rate cannot be determined under the section. Similarly, § 232.4(c)(2)(ii)(B) relates to when finance charge imposed during the billing cycle is or includes a minimum, fixed or other charge not due to the
Under the Department's flexibly applied conditional exclusion, creditors may use any reasonable approach in identifying whether a fee is substantially similar for purposes of comparison and reasonable overall. Thus, the Department's policy, in this regard, permits a creditor to consider whether the benefits provided by a rewards program in determining whether a fee is reasonable overall. Moreover, creditors may consider rewards program benefits in determining whether the amount of a fee is less than or equal to an average amount of a fee for a substantially similar product or service for purposes of the safe harbor in § 232.4(d)(3)(ii).
Furthermore, the Department is currently developing a pilot project in collaboration with several financial service providers that anticipate a large volume of covered borrower checks. In this pilot project, the Department is experimenting with a direct connection that may improve access to the DMDC database for the financial services industry. This direct connection pilot project accesses the same DMDC database available through an internet query. A creditor may verify the status of a consumer by using the database maintained by the Department for that purpose, even though the creditor uses a method of accessing that database provided by the Department other than the particular URL listed in § 232.5(b)(2). Thus, a creditor who makes a determination regarding the status of a consumer under § 232.5(b)(2) by participating in the Department's direct connection pilot project (or a similar form of access should it be provided by the Department at a future date) is deemed conclusive with respect to that transaction or account involving consumer credit between the creditor and that consumer, so long as that creditor timely creates and thereafter maintains a record of the information so obtained as provided in § 232.5(b)(3).
Neither the MLA nor the MLA regulation specifies particular content or format for the requirement of a clear, oral description of the payment obligation. Also, nothing in the MLA or the MLA regulation requires that the clear description of the payment obligation provided in writing must be the same as the oral disclosure, provided that both disclosures are clear and accurate. As explained in the supplementary information to the Department's July 2015 Final Rule, the Department's approach has been to interpret the MLA's oral disclosure requirement in a manner that provides creditors “straightforward mechanisms” that afford “latitude to develop the same (or consistent) systems to orally provide the required disclosures—regardless of the particular context . . .”
In contrast, § 232.8(e) prohibits a creditor from using the borrower's account information to create a remotely created check or remotely created payment order in order to collect payments on consumer credit from a covered borrower. Similarly, a creditor may not use a post-dated check provided at or around the time credit is extended that deprives the borrower of control over payment decisions, as is common in certain payday lending transactions.
Section 232.8(e)(1) and (2) further clarify that covered borrowers may tender checks and authorize electronic fund transfers by specifying permissible actions creditors may take to secure repayment by covered borrowers. The exceptions address cases where a creditor requires a covered borrower to provide repayment in a certain way. Specifically, under § 232.8(e)(1), a creditor may require an electronic fund transfer to repay a consumer credit transaction, unless otherwise prohibited by law. The Department notes that 12 CFR 1005.10(e)(1) prohibits anyone from conditioning an extension of credit to a consumer on the consumer's repayment by preauthorized electronic fund transfers (except for credit extended under an overdraft credit plan or extended to maintain a specified minimum balance in the consumer's account). However, a preauthorized electronic fund transfer is defined under 12 CFR 1005.2(k) as an electronic fund transfer authorized in advance to
In addition, § 232.8(e)(2) clarifies that a creditor is permitted to require direct deposit of the consumer's salary as a condition of eligibility for consumer
Section 232.8(e)(3) further clarifies that covered borrowers may convey security interests in checking, savings, or other financial accounts by describing a permissible security interest granted by covered borrowers. Thus, for example, a covered borrower may grant a security interest in funds deposited in a checking, savings, or other financial account after the extension of credit in an account established in connection with the consumer credit transaction.
Executive Orders 13563 and 12866 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. It has been determined that this is not a significant rule. This interpretive rule will not have an annual effect of $100 million or more on the economy, or adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local governments. This rulemaking will not interfere with an action taken or planned by another agency, or raise new legal or policy issues. Finally, this rulemaking will not alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this rulemaking is not subject to Office of Management and Budget (OMB) review under Executive Order 12866.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to 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 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
The Department of Defense certifies that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
This rule does not impose reporting and record keeping requirements under the Paperwork Reduction Act of 1995.
This rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). It has been determined that it does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. This rule has no substantial effect on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. Nothing in this rule preempts any State law or regulation. Therefore, Department did not consult with State and local officials because it was not necessary.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the S213 (MD 213) Bridge across the Chester River, mile 26.8, at Chestertown, MD. The deviation is necessary to facilitate bridge maintenance. This deviation allows the bridge to remain in the closed-to-navigation position.
The deviation is effective 8 p.m. on Tuesday, September 6, 2016 to 6 a.m. on Sunday, October 30, 2016.
The docket for this deviation, [USCG-2016-0783] is available at
If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email
The Maryland State Highway Administration, who owns and operates the S213 (MD 213) Bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.551, to facilitate painting of the bridge.
Under this temporary deviation, the bridge will be in the closed-to-navigation position from 8 p.m. September 6, 2016 to 6 a.m. October 30, 2016. The bridge is a double bascule drawbridge and has a vertical clearance in the closed-to-navigation position of 12 feet above mean high water.
The Chester River is used by recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
For the duration of the bridge maintenance, vessels will not be allowed to pass through the bridge due to placement of barges and equipment in the main navigation span. The bridge will open for vessels on signal during the scheduled closure periods, if at least 24 hours notice is given. The bridge will not be able to open for emergencies and there is no immediate alternative route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce its Portland Dragon Boat Races safety zone regulations on September 10 and 11, 2016. Our regulations for this safety zone identifies the regulated area for this event. During the enforcement period, no person or vessel may enter or remain in the safety zone without permission from the Sector Columbia River Captain of the Port.
The regulations in 33 CFR 165.1341 will be enforced from 8 a.m. to 6 p.m., on both September 10, 2016, and September 11, 2016.
If you have questions about this notice of enforcement, call or email Mr. Ken Lawrenson, Waterways Management Division, MSU Portland, U.S. Coast Guard; telephone 503-240-9319, email
The Coast Guard will enforce the safety zone for the Portland Dragon Boat Races detailed in 33 CFR 165.1341 from 8 a.m. to 6 p.m., on both Saturday, September 10, 2016, and Sunday, September 11, 2016. This action is necessary to ensure the safety of maritime traffic, including public vessels present, on the Willamette River during the Portland Dragon Boat Races. Our regulations for the Portland Dragon Boat Races in § 165.1341 specify the location of the regulated area for this event. Under the provisions of 33 CFR 165.1341 and 33 CFR part 165, subpart C, no person or vessel may enter or remain in the safety zone without permission from the Sector Columbia River Captain of the Port. Persons or vessels wishing to enter the safety zone may request permission to do so from the on-scene Captain of the Port representative via VHF Channel 16 or 13. The Coast Guard may be assisted by other Federal, State, or local enforcement agencies in enforcing this regulation.
This notice of enforcement is issued under the authority of 33 CFR 165.1341 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary security zone for the protection of a very important person (VIP). This VIP will be staying on beachfront property in close proximity to Kailua Bay. It is necessary to restrict waterway access to vessels and persons to prevent waterside threats
This rule is effective from 4:00 p.m. (HST) on August 30, 2016, through 11:30 p.m. (HST) on September 2, 2016.
Documents mentioned in this preamble are part of docket USCG-2015-1030. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Nicolas Jarboe, Waterways Management Division, U.S. Coast Guard Sector Honolulu; telephone (808) 541-4359, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) [5 U.S.C. 553(b)]. This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds those procedures are “impractical, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under the authority in 33 U.S.C. 1231. From August 30, 2016 through September 2, 2016, a VIP of the United States of America plans to visit the Kailua Bay area on Oahu, Hawaii. The security zone encompasses two primary areas from the surface of the water to the ocean floor: (1) The navigable waters of the Kawainui Canal, beginning 150 yards south of the N. Kalaheo Avenue Road Bridge and continuing into Kailua Bay; and (2) the navigable waters of Kailua Bay beginning at Kapoho Point and extending in a southwesterly direction to the shore boundary of a property located at 123 Kailuana Loop, Kailua, HI 96734. The Captain of the Port of Honolulu (COTP) has determined the potential risks associated with the VIP's visit to the Kailua Bay area render a security zone necessary to ensure the VIP's safety. Entry of persons or vessels into the security zone is prohibited unless authorized by the Captain of the Port (COTP) Honolulu or a designated representative.
This temporary final rule establishes a security zone from 4:00 p.m. (HST) on August 30, 2016, through 11:30 p.m. (HST) on September 2, 2016. The security zone encompasses two primary areas from the surface of the water to the ocean floor: (1) The navigable waters of the Kawainui Canal, beginning 150 yards south of the N. Kalaheo Avenue Road Bridge and continuing into Kailua Bay; and (2) the navigable waters of Kailua Bay beginning at Kapoho Point and extending in a southwesterly direction to the shore boundary of a property located at 123 Kailuana Loop, Kailua, HI 96734.
Two (2) shore-side markers will be placed in proximity of the security zone along the security zone boundary and one (1) orange boom will be placed at the canal boundary south of the N. Kalaheo Avenue Road Bridge as visual aids for mariners and public to approximate the zone. An illustration of the security zone will be made available on
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Coast Guard expects the economical impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the limited duration of the zone, the limited geographic area affected by it, and the lack of commercial vessel traffic affected by the zone. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions
While some owners or operators of vessels intending to transit the security zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(1) The navigable waters of the Kawainui Canal, beginning 150 yards south of the N. Kalaheo Avenue Road Bridge and continuing into Kailua Bay; and
(2) The navigable waters of Kailua Bay beginning at Kapoho Point and extending in a southwesterly direction to the shore boundary of a property located at 123 Kailuana Loop, Kailua, HI 96734. The geographic coordinates of the zone include the navigable waters of the Kawainui Canal beginning at a point 21°24′56″ N., 157°44′58″ W., then extending to 21°25′27″ N., 157°44′21″ W. (Kapoho Point) including all the waters to the west of a straight line to 21°25′11″ N., 157°44′39″ W., and extending back to the original point 21°24′56″ N., 157°44′58″ W.
(b)
(c)
(1) All persons and vessels are required to comply with the general regulations governing security zones found in this part.
(2) Entry into or remaining in this zone is prohibited unless authorized by the COTP or his designated representative.
(3) Persons or vessels desiring to transit the security zone identified in paragraph (a) of this section may contact the COTP through his designated representatives at the Command Center via telephone: (808) 842-2600 and (808) 842-2601; fax: (808) 842-2642; or on VHF channel 16 (156.8 Mhz) to request permission to transit the zones. If permission is granted, all persons and vessels must comply with the
(4) The U.S. Coast Guard may be assisted in the patrol and enforcement of the security zone by Federal, State, and local agencies.
(d)
(e)
In rule document 2016-08913, appearing on pages 23175-23180 in the issue of Wednesday, April 20, 2016, make the following correction:
On page 23177, in the first column, in the first paragraph following the table, lines 1-23, should read as follows:
In the above table, the key is as follows:
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is partially approving and partially disapproving elements of a New York State Implementation Plan (SIP) submittal pertaining to the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standard (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. This action pertains specifically to infrastructure requirements concerning interstate transport provisions.
This rule is effective on September 26, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2016-0320. All documents in the docket are listed on the
Kenneth Fradkin, 212-637-3702,
Throughout this document, “we”, “us”, and “our” means EPA.
This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements in New York's infrastructure SIP submitted on April 4, 2013 to address applicable infrastructure requirements with respect to the 2008 ozone NAAQS.
The requirement for states to make a SIP submission of this type arises out of CAA 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 “[e]ach such plan” submission must address. EPA commonly refers to such state plans as “infrastructure SIPs.” In particular, 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 contributing significantly to nonattainment of the NAAQS (commonly referred to as prong 1), or interfering with maintenance of the NAAQS (prong 2), in any another state. Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality (prong 3) and to protect visibility (prong 4) in another state. This rulemaking addresses prongs 1, 2, and 4 of CAA section 110(a)(2)(D)(i). EPA will address the other portions of the April 4, 2013 infrastructure SIP submittal, including prong 3 pertaining to CAA section 110(a)(2)(D)(i)(II), in another action.
The proposed rulemaking associated with this final action was published on June 21, 2016 (81 FR 40229). In that action, EPA proposed to disapprove the portions of New York's April 4, 2013
In proposing to disapprove the SIP submission as to prongs 1 and 2, EPA noted several deficiencies in New York's submission: (1) New York's own modeling showed “predicted” nonattainment in the bordering states of Connecticut, New Jersey, and Pennsylvania, but did not adequately explain its conclusion that New York emissions will not significantly contribute to those predicted exceedances; (2) the emissions reductions cited in New York's submission were based on preliminary emissions estimates, and were below the assumed emissions reductions that were used in New York's cited preliminary screening modeling performed for the Ozone Transport Commission; (3) the submission used a projection year (2020) to model downwind air quality that is two years beyond the July 11, 2018 moderate area attainment date for the 2008 ozone NAAQS; (4) the submission failed to address prong 2, the State's potential interference with maintenance of the 2008 ozone NAAQS in other states; (5) the submission did not demonstrate that the emission rates at which Electric Generating Units (EGUs) in the state operated were the result of enforceable emission limits or other mandatory programs such that the emission rate would not increase; (6) New York's submission relied on the state's implementation of the Clean Air Interstate Rule (CAIR), which was not designed to address interstate transport with respect to the 2008 ozone standard and is no longer being implemented by the states and EPA; and (7) EPA recently released technical data that contradicts the State's conclusion that its SIP already contains adequate provisions to meet interstate transport requirements with respect to the 2008 ozone NAAQS.
In proposing to approve the New York SIP submission with respect to the prong 4 visibility transport requirements under CAA section 110(a)(2)(i)(II), EPA explained that New York's SIP submission relied on the State's approved Regional Haze SIP to ensure that emissions from sources within the State were not interfering with measures to protect visibility in other states.
We received comments during the public comment period on our proposed action from the New York State Department of Environmental Conservation (NYSDEC), the State of Connecticut Department of Energy and Environmental Protection (DEEP), and the Environmental Energy Alliance of New York, LLC (the Alliance). A synopsis of the comments and our responses are below.
NYSDEC misstates the burden imposed upon the EPA in reviewing this action. In submitting an infrastructure SIP, the state's burden is to demonstrate to EPA's satisfaction that it has complied with the statutory requirements of CAA section 110(a)(2). EPA's role in reviewing infrastructure SIP submissions is to ensure that the state's plan complies with the statute. With respect to prongs 1 and 2, the EPA has reviewed New York's demonstration and determined, for the reasons summarized above, that it does not adequately demonstrate that the state's plan is sufficient to ensure that emissions from the state will not significantly contribute to nonattainment or interfere with maintenance. As noted below, this disapproval will trigger a federal implementation plan (FIP) clock which will require the EPA to promulgate a plan to prohibit those levels of emissions that impact downwind air quality in violation of the statute. However, the EPA is not required to provide that metric at the time it reviews the state's demonstration.
Moreover, EPA's 2011 modeling baseline used for evaluating interstate transport with respect to the 2008 ozone NAAQS accounted for the emission reductions from controls listed in the SIP—including New York's Reasonably Available Control Technology (RACT) rules—and nonetheless continued to show that New York would contribute to downwind air quality problems. Despite the considerable emission reductions achieved by New York, EPA's technical analysis for the CSAPR Update proposal demonstrates that New York's emissions still have an impact on other states.
As described in the proposal and earlier in this document, EPA has identified several ways in which New York's SIP submission was deficient for purposes of addressing the state's obligation pursuant to CAA section 110(a)(2)(D)(i)(I). In particular, EPA proposed to disapprove New York's SIP submission because the State's modeling showed “predicted” nonattainment in other nearby states with existing measures; the submission did not demonstrate that the emission rates at which EGUs operated were the result of enforceable emission limits; the submission failed to address the State's potential interference with maintenance (or prong 2 of section 110(a)(2)(D)(i)); and the submission relied on the state's implementation of CAIR, a rule that is no longer being implemented by the states and EPA and that was declared invalid by the D.C. Circuit.
While EPA cited the modeling conducted for the proposed CSAPR Update rule as additional evidence that New York may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligations. Rather, the evaluation of whether emissions from the State significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind, and if so what reductions are necessary to address that contribution, is being conducted in the context of the CSAPR Update rulemaking. Accordingly, EPA is considering submitted comments regarding EPA's air quality modeling and various associated legal and policy decisions in finalizing that rulemaking.
EPA notes that the technical data discussed at proposal with respect to New York's potential contribution to downwind air quality problems is consistent with modeling previously conducted for trading programs addressing interstate ozone transport such as CSAPR (76 FR 48208), CAIR (70 FR 25162), and the NO
With respect to this rulemaking, EPA disagrees with the commenter that we are only relying on CSAPR modeling to disapprove the State's SIP. As we have previously noted, EPA has identified several ways in which New York's SIP submission is deficient for purposes of addressing the State's obligations under CAA section 110(a)(2)(D)(i)(I). While EPA cited the modeling conducted for the CSAPR Update as additional evidence that New York may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligations. Rather, EPA is conducting its evaluation of whether emissions from the State significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind and, if so, what reductions are necessary to address that contribution, in the context of the CSAPR Update rulemaking.
EPA therefore disagrees with the commenter that appropriate notice and comment to regulated entities on the proposed SIP disapproval has not been provided since the CSAPR Update modeling has not been finalized. EPA provided a 30 day comment period on the proposed disapproval (see 81 FR 40229). EPA has also provided appropriate public notice and comment for the CSAPR Update rule (see 80 FR 75706). Moreover, there are no regulated entities under this action as this action merely disapproves the portion of New York's SIP addressing CAA section
The Alliance also notes that EPA claimed that New York did not demonstrate that the emission rates at which EGUs operated in the state are the result of enforceable emission limits or other mandatory programs such that the emission rate will not increase. The Alliance notes that the NO
As an initial matter, EPA notes that the Alliance based its analysis only on a subset of New York's emissions data (from EPA's Clean Air Markets database), whereas New York's modeling was based on a much larger emission inventory (projected 328,457 tons of NO
Most importantly, EPA notes that New York's RACT rules were factored into New York's modeling as well as EPA's base case modeling. Despite emission reductions from New York's RACT regulations, as noted previously in this document, EPA modeling still shows a very large contribution to downwind nonattainment and maintenance receptors from New York (
EPA is disapproving a portion of the April 4, 2013 SIP submittal from New York pertaining to the requirements of CAA section 110(a)(2)(D)(i)(I) regarding interstate transport of air pollution that will significantly contribute to nonattainment or interference with maintenance of the 2008 ozone NAAQS in other states, known as prongs 1 and 2 of the good neighbor provision.
EPA is approving the portion of the April 4, 2013 SIP submittal from New York pertaining to the requirements of CAA section 110(a)(2)(D)(i)(II) requirement for visibility (or prong 4).
We expect to take action on the other portions of New York's infrastructure SIP at a later date.
Pursuant to CAA section 110(c)(1), this disapproval establishes a 2-year deadline for the EPA to promulgate a FIP for New York addressing the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS unless New York submits and we approve a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for New York pursuant to CAA section 179 because this action does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).
This final action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and was therefore not submitted to the Office of Management and Budget for review.
This final action does not impose an information collection burden under the PRA because it does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This rule does not impose any requirements or create impacts on small entities. This partial SIP approval and partial SIP disapproval under CAA section 110 will not in-and-of itself create any new requirements but simply approves and disapproves certain state requirements for inclusion into the SIP.
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 action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely partially approves and partially disapproves a SIP submittal from the State of New York.
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.
EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. This action merely partially approves and partially disapproves a SIP submittal from the State of New York.
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States prior to publication of the rule in the
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 October 25, 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 CAA section 307(b)(2)).
Environmental protection, Air pollution control, Intergovernmental relations, Incorporation by reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(o) The portion of the SIP submitted on April 4, 2013 addressing Clean Air Act section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS is disapproved.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the Commonwealth of Virginia (Virginia) state implementation plan (SIP). The revision would remove a consent agreement and order (consent order) previously included in the Virginia SIP to address reasonably available control technology (RACT) requirements for volatile organic compounds (VOCs) control at the Reynolds Consumer Product LLC (Reynolds) plant and include a state operating permit in the SIP to continue to address RACT requirements for the Reynolds plant. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on October 25, 2016 without further notice, unless EPA receives adverse written comment by September 26, 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-2016-0233 at
Gregory Becoat, (215) 814-2036, or by email at
On October 26, 2015, the Commonwealth of Virginia through the Virginia Department of Environmental Quality (VADEQ) submitted a revision to its SIP. The SIP revision submittal seeks to include state operating permit conditions and terms for the control of emissions of VOCs from Reynolds' plant located in Chesterfield, Virginia, in the Richmond Area, in order to address VOC RACT requirements for Reynolds. Previously, VOC RACT requirements for Reynolds were addressed via inclusion in the Virginia SIP of a Consent Order between VADEQ and Reynolds. This SIP revision submittal seeks to remove the prior Reynolds' consent order included in the SIP and replace it with nearly identical VOC RACT requirements now contained for the Reynolds' plant in a state operating permit. The SIP revision submittal also contains minor administrative and technical changes related to VOCs compared to the Reynolds' consent order; however, the substantive provision of VOC RACT remains the same for the Reynolds' plant, thus the minor administrative and technical changes have no effect on facility operation, VOC emissions, or air quality.
The Virginia SIP provides that the Commonwealth of Virginia's State Air Pollution Control Board must, on case-by-case basis, determine RACT for VOCs from major sources for which EPA has not issued a control technology guideline (CTG). EPA defines RACT as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” 44 FR 53761 (September 17, 1979). The Richmond Area was originally designated as a “moderate” ozone nonattainment area under the 1-hour ozone national ambient air quality standard (NAAQS), and thereby had to meet the non-CTGs RACT requirements under section 182 of the CAA (56 FR 56694, November 6, 1991). Reynolds' printing plant was identified as being subject to non-CTG RACT. The facility underwent a RACT analysis, and a federally-enforceable consent order was issued to the facility on October 30, 1986. The order was then submitted to EPA as a SIP revision, and approved into the Commonwealth's SIP on June 6, 1996 (61 FR 29963).
The SIP revision removes the prior Reynolds' consent order included in the
The Commonwealth of Virginia's SIP revision also corrects two typographical errors in the formula used to calculate the estimated percent reduction in VOC emissions at Reynolds' plant for X14 (total actual solvent usage for time period) and X15 (total estimated solvents the plant is capable of using if water based materials were not used). The formula with the typographical errors was approved into the Commonwealth's SIP on June 6, 1996 (61 FR 29963). The revised formula for the state operating permit merely corrects a typographical mistake made within the consent order but does not alter how VOCs are or were calculated nor affect VOC emissions from the plant. A more detailed description of the state submittal and EPA's evaluation is included in a technical support document (TSD) prepared in support of this rulemaking action.
EPA is approving the October 26, 2015 submittal for the purpose of removing a consent order previously included in the Virginia SIP to address RACT requirements for VOC control at the Reynolds' plant and including Reynolds' state operating permit in the SIP to continue to address RACT requirements for Reynolds. EPA also approves the minor administrative and technical changes in the formula used to calculate the estimated percent reduction in VOC emissions. 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 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of
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).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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
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 October 25, 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 removing a consent order previously included in the Virginia SIP to address RACT requirements for VOCs control at Reynolds plant and including Reynolds' state operating permit in the SIP to continue to address RACT requirements for Reynolds; as well as, making minor administrative and technical changes in the formula used to calculate the estimated percent reduction in VOC emissions, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(d) * * *
Federal Communications Commission.
Final rule; application for review.
In this Memorandum Opinion and Order, the Commission denies the application for review of the Media Bureau's dismissal of a petition for reconsideration of decisions that allotted VHF television channel 5 to Seaford, Delaware. The Media Bureau had dismissed the petition for reconsideration challenging the Seaford allotment because it was untimely filed and the Commission concludes that there is no basis to waive the statutory deadline for the filing of petitions for reconsideration.
August 26, 2016.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Jeremy Miller, Media Bureau, (202) 418-1507, or by email at
Pursuant to sections 331(a) and 307(b) of the Communications Act, this is a synopsis of the Commission's Memorandum Opinion and Order, MB Docket No. 09-230, adopted August 3, 2016, and released August 4, 2016. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS (
The Commission has before it for consideration an Application for Review filed by PMCM TV, LLC (“PMCM”), seeking review of three decisions by the Video Division of the Media Bureau (the “Division”): (1) The
In ordering the Seaford allotment, the Commission concluded that the outcome of PMCM's Reallocation Request was not relevant. PMCM did not seek reconsideration of that finding until nearly three years later when, for the first time, it opposed the new Seaford allotment that it had previously “strongly” supported. In hindsight, PMCM now argues that the Commission should have postponed allocating a new channel to Delaware while its efforts to reallocate channel 2 played out at the Commission and in court, even though the pendency of that litigation did not prevent PMCM from raising other concerns premised on a favorable outcome regarding its Reallocation Request, and the Seaford allotment is consistent with that request.
The staff was correct in determining that PMCM's Petition for Reconsideration of the
The Commission can only accept late-filed petitions for reconsideration if the petitioner shows that extraordinary circumstances warrant overriding the statutory filing deadline. As the D.C. Circuit has explained, “[a]lthough section 405 does not absolutely prohibit FCC consideration of untimely petitions for reconsideration, we have discouraged the Commission from accepting such petitions in the absence of extremely unusual circumstances.” Consistent with the D.C. Circuit's decisions, the Commission in applying that standard has focused on whether the Commission has failed to adhere to its procedural rules for providing notice of its decisions. PMCM has not even attempted to show that it has met this standard, much less demonstrated that the extraordinary circumstances required under this precedent are present here.
The assertion that the Court's decision in
For the foregoing reasons, PMCM's argument that the Petition was timely filed because of its submission within 30 days of the release of the
Office of Inspector General (OIG), HHS.
HHS OIG adoption of the HHSAR, and deviation from three clauses.
This announcement establishes that the OIG contracting activity will follow the requirements of the HHSAR, subject to three deviations establishing that OIG personnel shall seek legal guidance from the Office of Counsel to the Inspector General instead of the Office of the General Counsel.
These deviations are effective on August 26, 2016.
Brian Hildebrandt, Office of Counsel to the Inspector General, Office of Inspector General, (202)205-9493.
Notice is hereby given that the Office of Inspector General (OIG) adopts the Health and Human Services Acquisition Regulations (HHSAR) as issued in the Code of Federal Regulations (CFR) as chapter 3 of title 48; as promulgated by the Assistant Secretary for Financial Resources (ASFR) under the authority of 5 U.S.C. 301 and section 205(c) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 121(c)(2)), and as delegated by the Secretary.
In addition, by the authority vested in the Senior Procurement Executive (SPE) in accordance with 48 CFR chapter 3, section 301.401 of the HHSAR, and 48 CFR chapter 1, section 1.401 of the Federal Acquisition Regulations (FAR), I execute three class deviations from the HHSAR to ensure compliance with section 3(g) of the Inspector General Act. These deviations establish the OIG shall make use of the Office of Counsel to the Inspector General (OCIG), and not Office of the General Counsel (OGC), for the purposes of HHSAR sections 301.602-3; 303.203; & 333.102(g)(1); and further reaffirm the requirement that OCIG be consulted when the HHSAR and/or FAR require consultation with legal counsel.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We are partially approving Framework Adjustment 9 to the Monkfish Fishery Management Plan. This action is necessary to better achieve the goals and objectives of the management plan and achieve optimum yield. It is intended to increase monkfish landings by enhancing the operational and economic efficiency of existing management measures.
This rule is effective August 26, 2016.
Allison Murphy, Fishery Policy Analyst, (978) 281-9122.
The monkfish fishery is jointly managed by the New England and the Mid-Atlantic Fishery Management Councils under the Monkfish Fishery Management Plan (FMP). The fishery extends from Maine to North Carolina from the coast out to the end of the continental shelf. The Councils manage the fishery as two management units, with the Northern Fishery Management Area (NFMA) covering the Gulf of Maine and northern part of Georges Bank (GB), and the Southern Fishery Management Area (SFMA) extending from the southern flank of GB through Southern New England (SNE) and into the Mid-Atlantic (MA) Bight to North Carolina.
The monkfish fishery has not fully harvested the available annual catch target since fishing year 2011, particularly in the NFMA where the under-harvest has been more substantial. As a result, the fishery has not been achieving optimum yield in either area. The Councils developed Framework 9 to enhance the operational efficiency of existing management measures in an effort to better achieve optimum yield. Because this action modifies some requirements for Northeast (NE) multispecies sector vessels, it is also considered Framework Adjustment 54 to the NE Multispecies FMP.
On June 23, 2016, we published a rule (81 FR 40838) proposing the measures included in Framework 9, and solicited comment through July 8, 2016. The Councils took final action on Framework 9 during summer 2015 and formally submitted it to us in February 2016. The proposed rule included three measures. This rule approves two measures and disapproves one measure. For more information on these measures, and the rationale for approval or disapproval, please refer to Approved Measures and Disapproved Measures below.
This rule eliminates the monkfish possession limit for monkfish Category C and D permitted vessels (referred to as Category C and D vessels in this section) fishing under both a NE multispecies and monkfish day-at-sea (DAS) in the NFMA. This measure is designed to help increase monkfish landings and better achieve the annual catch target caught in the NFMA.
Possession limits differ based on the type of DAS being used by a vessel. By eliminating the trip limit for a vessel fishing under both a NE multispecies and monkfish DAS, we are adding another tier to the possession limit system without changing the existing possession limits for a vessel fishing on a NE multispecies DAS or a monkfish DAS. A Category C or D vessel that is fishing under both a NE multispecies and a monkfish DAS in the NFMA may now retain an unlimited amount of monkfish. Table 2 includes a summary of the existing and new monkfish tail weight possession limits for a vessel fishing under the various DAS available in the NFMA.
A Category C or D vessel is still required to declare a trip at the dock under a NE multispecies A DAS with the option to declare a monkfish DAS while at sea, but can then declare a monkfish DAS while at sea in order or to be exempt from the monkfish possession limits. Alternately, a Category C or D vessel can declare a concurrent NE Multispecies A DAS and a monkfish DAS at the dock prior to starting a trip in order or to be exempt from the monkfish possession limits.
We are revising minimum mesh size and possession restrictions in different parts of SFMA (see Figure 1) to increase operational flexibility.
This rule implements a measure that allows a Category C or D vessel fishing under both a NE multispecies and a monkfish DAS in the SFMA to use 6.5-inch (16.5-cm) roundfish gillnets. This rule also allows any monkfish-permitted vessel fishing on a monkfish-only DAS in the Mid-Atlantic Exemption Area to use 5-inch (12.7-cm) roundfish gillnets in the Mid-Atlantic Exemption Area. Finally, monkfish-permitted vessels fishing on a monkfish-only DAS in either the SNE Dogfish Gillnet Exemption Area or the SNE Monkfish and Skate Gillnet Exemption Area may retain both monkfish and dogfish on the same trip when declared into either area. This measure also limits a vessel to using 50 roundfish gillnets in the SNE Dogfish and the Mid-Atlantic Exemption Areas. Table 3 summarizes the approved measures (highlighted in bold) and also includes existing seasonal, gear, and DAS requirements.
A vessel taking advantage of these smaller minimum mesh size requirements must still comply with all other requirements of fishing in the SFMA or in the Exemption Areas. Existing monkfish possession limits for vessels issued a limited access monkfish permit and fishing in the SFMA would remain the same.
We are disapproving the Framework 9 measure that would have allowed a Monkfish Category C and D vessel enrolled in a NE multispecies sector, fishing exclusively in the NFMA under either a NE multispecies non-DAS sector trip or a monkfish-only DAS, to declare a NE multispecies A DAS while at sea through the vessel monitoring system (VMS). We are disapproving this measure because it is inconsistent with National Standards 5 and 7 and the NE Multispecies FMP. Specifically, our disapproval is based on this measure's limited utility for fishery participants, poor cost-to-benefit ratio, enforcement concerns, and inconsistency with the NE multispecies FMP at-sea monitoring program. A full description of our rationale is provided below.
This measure was intended to help increase operational flexibility and potentially increase monkfish landings in the NFMA. However, as proposed by the Councils, it would create a loophole that would allow a vessel to circumvent existing groundfish sector at-sea monitoring requirements, which would be inconsistent with the NE Multispecies FMP. We have determined that the measure itself and the proposed remedy to the monitoring loophole described in the proposed rule are not consistent with National Standards 5 and 7 of the Magnuson-Stevens Fishery Conservation and Management Act because administrative costs and burdens are not offset by meaningful benefits to the industry.
We raised several concerns with this measure in the proposed rule (see 81 FR 40838, 40839) and noted that we intended to further evaluate the potential cost/benefit of providing this at-sea declaration flexibility, as well as review comments, when considering the approvability of this measure. We specifically requested comments on this measure and our concerns in the proposed rule and received two comments generally supporting this measure from industry members. These comments provided no specific feedback on the monitoring loophole, justifications for the cost/benefits, or our request to address concerns related to approvability. In addition, we had extensive conversations about this measure with the New England Council during the regulatory deeming process. The New England Council did not comment in support of the measure, nor did the New England Council address the multiple concerns we raised.
We are disapproving this DAS flexibility measure for the following reasons:
1. Allowing a vessel to declare a NE multispecies A DAS after starting a trip on a monkfish-only DAS is inconsistent with the NE Multispecies FMP. This measure would have allowed a groundfish sector vessel to circumvent existing NE multispecies pre-trip notification requirements for deploying industry-funded at-sea monitors. Monitoring is a fundamental requirement of the NE multispecies sector system because it allows the sectors and NMFS to adequately monitor the catching and discards made by participating vessels.
2. It is inconsistent with National Standards 5 and 7 of the Magnuson-Stevens Act. If approved, the costs of this measure and potential remedies to the monitoring loophole far outweigh any potential benefits to the industry. This measure would have required VMS changes that were estimated by the agency to cost approximately $100,000 based on comparisons of other similar programmatic changes that required VMS vendors to reprogram for additional declaration codes. Other database changes in the pre-trip notification system and to accommodate bycatch moderating would also have been needed to address the loophole created in the NE multispecies monitoring program. These changes are not reflected in the $100,000 VMS change estimate.
Further, this measure would not have provided as many benefits as first anticipated. Framework 9 estimated that only a small percent (1.6 percent) of vessels approached applicable trip limits for non-DAS sector trips and monkfish-only trips in recent fishing years, indicating that few vessels would realize a benefit from this measure. During its development, this measure underwent several iterative changes wherein the universe of vessels that could potentially use the provision was reduced. Many of these changes were designed to address the concern raised in the proposed rule. Presently, sector vessels may only use monkfish-only DAS in an exempted fishery. The only exempted fishery that overlaps with the NFMA is in the Gulf of Maine/Georges Bank Dogfish and Monkfish Gillnet Exemption Area, as described in § 648.80(a)(13). Given that the majority of the fleet in the NFMA fishes with trawl gear and cannot take advantage of this opportunity because they are excluded from this exempted fishery, we were concerned that only a small number of vessels that use gillnet gear would benefit from this flexibility. In fact, additional agency analysis indicates that, in the last three years, only three vessels took four trips that would have been eligible to use the monkfish-only flexibility. These four trips resulted in landings worth approximately $12,000. National Standard 5 and 7 require that management measures consider efficiency in the utilization of fishery resources and minimize costs and avoid unnecessary duplication. Given this limited benefit and the costs associated with this DAS declaration flexibility, we have determined that this measure is inconsistent with National Standards 5 and 7.
In addition, we also raised concern in the proposed rule that allowing this measure would create enforcement concerns with regulatory discard requirements. A vessel declared out of the NE multispecies fishery and fishing in an exempted fishery is prohibited from retaining NE multispecies (must discard all groundfish); whereas a vessel fishing under a NE multispecies DAS is required to retain all legal size NE multispecies. If we had approved this measure, a vessel would have begun a trip discarding all NE multispecies, only to then be required to retain all legal-sized NE multispecies after declaring a NE multispecies DAS. There would be no way to monitor these discard requirements unless each trip making use of this provision was monitored.
This final rule corrects a number of inadvertent errors, omissions, and ambiguities in existing regulations in order to ensure consistency with, and accurately reflect the intent of, previous actions under the FMP, or to more effectively administer and enforce existing and new provisions. These clarifications are being taken under the authority provided to the Secretary of Commerce in section 305(d) of the Magnuson-Stevens Act. The following measures are listed in the order in which they appear in the regulations.
In § 648.10, paragraphs (b)(3), (g)(1), (g)(3), and (g)(3)(i) through (ii) are revised to enhance readability and more clearly state the regulatory requirements.
In § 648.92, paragraph (b)(1)(i) is revised to enhance readability and more clearly state the regulatory requirements. A reference to the DAS requirements in the SFMA and adjustment for gear conflicts has also been removed, as these references are unnecessary. The reference to DAS requirement in the SFMA in § 648.92(b)(1)(ii) is not needed because that referenced section further explains how the overall DAS allocation may be used. The reference to adjustment for gear conflicts in § 648.96(b)(3) states that the Councils may develop recommendations to address gear conflicts. This reference is unnecessary because those measures would be captured in the regulations and appropriately cross-referenced.
In § 648.94, paragraph (b)(3)(i) is be revised to enhance readability and more clearly state the regulatory requirements. A reference to Category F permits has also been deleted for clarity because it may cause confusion with regard to the possession limits for Category F permits. Possession limit requirements for Category F permits are more clearly outlined in § 648.95.
Our proposed rule solicited comments for 15 days through July 8, 2016. We received nine comments from fishing industry members. A summary of the comments and our responses is provided below.
The Administrator, Greater Atlantic Region, NMFS, determined that Framework 9 is necessary for the conservation and management of the monkfish fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.
Because this rule relieves a restriction by increasing the trip limit in the NMFA and liberalizing gear and possession restrictions in the SFMA, it is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1). The Councils developed these measures to increase monkfish landings and associated fishing revenue to more effectively achieve optimum yield in the fishery. Accordingly, delaying this action for 30-days is contrary to the public interest, because it would unnecessarily delay the industry's ability to take advantage of increased opportunities to catch and land monkfish and benefit from the associated economic benefits of higher monkfish landings. Further, since this rule imposes no further restrictions on the monkfish fishery that would alter existing fishing practices or require affected entities to acquire additional equipment, there is no need to delay implementation of this action to provide affected entities sufficient time to prepare or comply with the measures of this rule. Thus, there is good cause under 5 U.S.C. 553(d)(3) to waive the delay in effectiveness for this action.
This rule has been determined to be not significant for purposes of Executive Order 12866.
On December 29, 2015, the National Marine Fisheries Service (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.
Pursuant to the Regulatory Flexibility Act, and prior to July 1, 2016, a certification was developed for this regulatory action using SBA's former size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. Under the SBA's size standards, 16 shellfish businesses were determined not to be small. The new standard could result in a few more commercial shellfish businesses being considered small. In addition, the new standard could result in fewer commercial finfish businesses being considered small. Previously, all finfish businesses (206 businesses) were classified as small businesses. Based on analysis in the environmental assessment, we do not expect any of these finfish businesses to be classified as large under the new size standards. However, NMFS has determined that the new size standard does not affect its decision to certify this regulatory action. The action results in minimal, potentially slightly positive impacts on all regulated entities regardless of size.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(b) * * *
(3) A vessel issued a limited access monkfish, Occasional scallop, or Combination permit, whose owner elects to provide the notifications required by this section using VMS, unless otherwise authorized or required by the Regional Administrator under paragraph (d) of this section;
(g) * * *
(1) The owner or authorized representative of a vessel that is required to or elects to use VMS, as
(i) If notified by letter, pursuant to paragraph (e)(1)(iv) of this section, or
(ii) The vessel is a scallop vessel and is exempted, as specified in paragraph (f) of this section.
(3) A vessel operator cannot change any aspect of a vessel's VMS activity code outside of port, except as follows:
(i) An operator of a NE multispecies vessel is authorized to change the category of NE multispecies DAS used (
(ii) An operator of a vessel issued both a NE multispecies permit and a monkfish permit are authorized to change their DAS declaration from a NE multispecies Category A DAS to a monkfish DAS, while remaining subject to the to the NE multispecies DAS usage requirements under § 648.92(b)(1)(i), during the course of a trip, as provided at § 648.92(b)(1)(iii)(A).
(m) * * *
(2) * * *
(i) Fish with or use nets with mesh size smaller than the minimum mesh size specified in § 648.91(c) while fishing under a monkfish DAS, except as authorized by § 648.91(c)(1)(iii).
The revisions read as follows:
(b) * * *
(2) * * *
(iv)
(6) * * *
(i) * * *
(A) A vessel fishing under the SNE Monkfish and Skate Gillnet Exemption may only fish for, possess on board, or land monkfish as specified in § 648.94(b), spiny dogfish up to the amount specified in § 648.235, and other incidentally caught species up to the amounts specified in paragraph (b)(3) of this section.
(7) * * *
(i) * * *
(A) A vessel fishing under the SNE Dogfish Gillnet Exemption may only fish for, possess on board, or land dogfish and the bycatch species and amounts specified in paragraph (b)(3) of this section, unless fishing under a monkfish DAS. A vessel fishing under this exemption while on a monkfish-only DAS may also fish for, possess on board, and land monkfish up to the amount specified in § 648.94.
(B) All gillnets must have a minimum mesh size of 6-inch (15.2-cm) diamond mesh throughout the net. A vessel fishing under this exemption while on a monkfish-only DAS may not fish with, possess, haul, or deploy more than 50 roundfish gillnets, as defined in § 648.2.
(c) * * *-
(2) * * *
(v)
(5)
(ii)
(A)
(B)
(C)
(c) * * *
(1) * * *
(iii)
(A) The owner or operator of a limited access NE multispecies vessel fishing
(B) A vessel issued a Category C or D limited access monkfish permit is fishing under both a monkfish and NE multispecies Category A DAS in the SFMA using roundfish gillnets, as defined at § 648.2, with 6.5-inch (16.5-cm) diamond mesh;
(C) A vessel issued a limited access monkfish permit is fishing on a monkfish-only DAS in the Mid-Atlantic Exemption Area using roundfish gillnets with a minimum mesh size of 5 inches (12.7 cm) in accordance with the provisions specified under § 648.80(c)(5); or
(D) A vessel issued a limited access monkfish permit is fishing on a monkfish-only DAS in the Southern New England Dogfish Exemption Area using roundfish gillnets with a minimum mesh size of 6 inches (15.2 cm) in accordance with the provisions specified under § 648.80(b)(7).
(b) * * *
(1) * * *
(i)
(b) * * *
(1)
(ii)
(iii)
(iv)
(3) * * *
(i)
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the regulations concerning the importation of fruits and vegetables to allow the importation of fresh raspberry fruit from Morocco into the continental United States. As a condition of entry, the raspberries would have to be produced under a systems approach to mitigate for the fungus
We will consider all comments that we receive on or before October 25, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Ms. Claudia Ferguson, Senior Regulatory Policy Specialist, Imports, Regulations, and Manuals, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 851-2352.
The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-75, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.
The national plant protection organization (NPPO) of Morocco has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow fresh raspberry fruit from Morocco to be imported into the continental United States.
As part of our evaluation of Morocco's request, we prepared a pathway initiated pest risk assessment (PRA), titled “Importation of Fresh Fruit of Raspberry (
The PRA identified one pest of quarantine significance present in Morocco that could be introduced into the United States through the importation of raspberries. According to our PRA, this pest, a fungus (
APHIS prepared a risk management document (RMD) for the importation of fresh raspberry fruit from Morocco that identifies a systems approach of specific mitigation measures against the quarantine pest and concludes that those measures, along with the general requirements for the importation of fruits and vegetable, will be sufficient to prevent the introduction of the pest into the continental United States. Copies of the PRA and RMD may be obtained from the person listed under
Based on the recommendations of the RMD, we are proposing to allow the importation of raspberries from Morocco into the continental United States only if they are produced in accordance with a systems approach. The systems approach we are proposing would be added to the regulations in a new § 319.56-76. The proposed measures are described below.
Paragraph (a) of proposed § 319.56-76 would set out general requirements for the NPPO of Morocco and for growers producing fresh raspberries for export to the continental United States.
Paragraph (a)(1) of proposed § 319.56-76 would require the NPPO of Morocco to provide an operational workplan to APHIS that details the activities that the NPPO would, subject to APHIS' approval of the workplan, carry out to meet the requirements of proposed § 319.56-76. An operational workplan is an agreement developed between APHIS' Plant Protection and Quarantine program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities, that specifies in detail the phytosanitary measures that will be carried out to comply with our regulations governing the importation of a specific commodity. Operational workplans apply only to the signatory parties and establish detailed procedures and
Paragraph (a)(2) of proposed § 319.56-76 would state that raspberries from Moroccan can be imported in commercial consignments only. Produce grown commercially is less likely to be infested with plant pests than noncommercial shipments. Noncommercial shipments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer.
Paragraph (b)(1) would require raspberries to be grown at a place of production that is registered with the NPPO of Morocco. All production sites participating in the raspberry export program would be required to register with the NPPO of Morocco. Registering places of production would allow APHIS and the NPPO of Morocco to trace back consignments of raspberries to the orchard of origin if a pest or disease of concern is detected after harvest.
Paragraph (c)(1) of proposed § 319.56-76 would require that raspberries be packed in packinghouses that are registered with the NPPO of Morocco. Paragraph (c)(2) would state that the detection of
The NPPO of Morocco would be responsible for export certification, inspection, and issuance of a phytosanitary certificate. Paragraph (d) of proposed § 319.56-76 would require each consignment of raspberries imported from Morocco into the continental United States to be accompanied by a phytosanitary certificate issued by the NPPO of Morocco with an additional declaration stating that the requirements of § 319.56-76 have been met and the consignment has been inspected and found free of
Under the general conditions for the importation of fruits and vegetables in § 319.56-3, each consignment of raspberries would be subject to further inspection at the port of entry into the United States.
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed under
The proposed rule would allow importation into the continental United States of fresh raspberries (
The majority of U.S. raspberry farms are in three States: California, Oregon, and Washington. They are classified within the North American Industry Classification System (NAICS) under “Berry except Strawberry Farming” (NAICS 111334). For this industry classification, a business is considered to be a small entity if its annual receipts are not more than $750,000. The average 2012 market value of fruit crops sold by farms in this category was less than $135,000. We infer that most fresh raspberry production is by small entities.
In 2014, U.S. fresh raspberry production totaled 55,130 MT. Annual imports from Morocco of between 200 and 500 MT would be the equivalent of between 0.4 and 0.9 percent of U.S. fresh raspberry production.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action is not expected to affect the economy of the United States or to negatively affect producers of raspberries in the United States.
This proposed rule would allow fresh raspberry fruit to be imported into the continental United States from Morocco under a systems approach. If this proposed rule is adopted, State and local laws and regulations regarding raspberries imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This proposed rule would amend the fruits and vegetables regulations to allow the importation of fresh raspberry fruit from Morocco into the continental United States. As a condition of entry, the raspberries would have to be produced under a systems approach employing a combination of mitigation measures for one quarantine pest and would have to be inspected prior to exportation from Morocco and found free of this pest. The raspberries would have to be imported in commercial consignments and accompanied by a phytosanitary certificate with an additional declaration stating that the conditions for importation have been met.
Implementing this rulemaking would require additional information collection activities, such as production site and packinghouse registration, inspection, operational workplan, and the completion of a phytosanitary certificate.
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
A copy of the information collection may be viewed on the
APHIS is committed to compliance with the EGovernment 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. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, we are proposing to amend 7 CFR part 319 as follows:
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Fresh fruit of raspberry (
(a)
(2) The raspberries may be imported in commercial consignments only.
(b)
(2) During the growing season, raspberries must be inspected in the field by the NPPO of Morocco for signs of
(c)
(2) Detection of
(d)
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the regulations concerning the importation of fruits and vegetables to allow the importation of fresh persimmons from New Zealand into the United States. As a condition of entry, the persimmons would have to be produced in accordance with a systems approach that would include requirements for orchard certification, orchard pest control, post harvest safeguards, fruit culling, traceback, sampling, and treatment with either hot water or modified atmosphere treatment. The persimmons would also have to be accompanied by a phytosanitary certificate with an additional declaration stating that they were produced under, and meet all the components of, the systems approach and were inspected and found to be free of quarantine pests in accordance with the proposed requirements. This action would allow the importation of fresh persimmons from New Zealand while continuing to protect against the introduction of plant pests into the United States.
We will consider all comments that we receive on or before October 25, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Mr. David B. Lamb, Senior Regulatory Policy Specialist, IRM, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 851-2103.
The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-75, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.
The national plant protection organization (NPPO) of New Zealand has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow fresh persimmons (
The PRA, titled “Importation of Persimmon,
The PRA identified nine pests of quarantine significance present in New Zealand that could be introduced into the United States through the importation of fresh persimmons:
• The leafroller moths
• The fungi
A quarantine pest is defined in § 319.56-2 of the regulations as a pest of potential economic importance to the area endangered thereby and not yet present there, or present but not widely distributed and being officially controlled. Potential plant pest risks associated with the importation of fresh persimmons from New Zealand into the United States were determined by estimating the consequences and likelihood of introduction of quarantine pests into the United States and ranking the risk potential as high, medium, or low. The PRA determined that four of these nine pests—
Based on the conclusions of the PRA and the RMD, we have determined that measures beyond standard port of arrival inspection are required to mitigate the risks posed by these plant pests. Therefore, we are proposing to allow the importation of persimmons from New Zealand into the United States subject to a systems approach. The conditions in the systems approach that we are proposing are described below. These conditions would be added to the regulations in a new § 319.56-76.
Proposed paragraph (a) of § 319.56-76 would require the NPPO of New Zealand to provide an operational workplan to APHIS that details the activities that the NPPO would, subject to APHIS' approval of the workplan, carry out to meet the requirements of proposed § 319.56-76. The operational workplan would have to include and describe in detail the quarantine pest survey intervals and other specific requirements in proposed § 319.56-76.
An operational workplan is an agreement between APHIS' Plant Protection and Quarantine program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities, that specifies in detail the phytosanitary measures that will be carried out to comply with our regulations governing the importation of a specific commodity. Operational workplans apply only to the signatory parties and
Proposed paragraph (b) of § 319.56-76 would require persimmons from New Zealand to be imported only in commercial consignments. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations/infections because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packing, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer.
Paragraph (c)(1) of proposed § 319.56-76 would require that all places of production (orchards) participating in the persimmon export program be registered with and approved by the NPPO of New Zealand in accordance with the requirements of the operational workplan.
Paragraph (c)(2) of proposed § 319.56-76 would require the NPPO of New Zealand or its approved designee
We are proposing several requirements for packinghouse activities, which would be contained in paragraph (d) of proposed § 319.56-76. Paragraph (d)(1) would require that all packinghouses participating in the persimmon export program be registered with and approved by the NPPO of New Zealand in accordance with the requirements of the operational workplan.
Paragraph (d)(2) would require that, during the time that the packinghouse is in use for exporting persimmons to the United States, the packinghouse would only be allowed to accept persimmons from registered places of production and that the persimmons be segregated from other fruit. This requirement would prevent persimmons intended for export to the United States from being exposed to or mixed with persimmons or other fruit that are not produced according to the requirements of the systems approach.
Paragraph (d)(3) would require that any diseased or insect-infested fruits and fruits with surface pests be culled either before or during packing and removed from the packinghouse. Culling would also include any damaged or deformed fruit. Fruit with broken or bruised skin or that is deformed is more susceptible to infestation by pests than undamaged fruit.
Paragraph (d)(4) would state that final shipping containers would have to be marked to identify the place of production and packinghouse from which the consignment of fruit originated. Such registration and container marking would facilitate traceback of a consignment of persimmon fruit to the place of production in which it was grown and the packinghouse in which it was packed in the event that quarantine pests were discovered in the consignment at the port of first arrival into the United States.
Paragraph (d)(5) would state that the NPPO of New Zealand must monitor packinghouse operations to verify that the packinghouses are complying with the requirements of the systems approach. If the NPPO of New Zealand finds that a packinghouse is not complying with the requirements of the systems approach, no persimmon fruit from the packinghouse will be eligible for export to the United States until APHIS and the NPPO of New Zealand conduct an investigation and both agree that the pest risk has been mitigated.
Paragraph (e) of proposed § 319.56-76 would require that a biometric sample of persimmon fruit jointly agreed upon by APHIS and the NPPO of New Zealand be inspected in the exporting country by the NPPO of New Zealand following post-harvest processing. The biometric sample would be visually inspected for signs of disease, and a portion of the fruit would be cut open to detect internally feeding pests. If quarantine pests are found during sampling, the consignment of fruit would be prohibited from export to the United States.
Paragraph (f) of proposed § 319.56-76 would require that all persimmons undergo postharvest treatment with either hot water or modified atmosphere treatment. Under the hot water treatment, the persimmons would have to be held for 20 minutes in hot water at 50 °C
(122 °F). This treatment has been shown to provide 100 percent mortality of leafroller moth larvae. In addition, hot water treatment reduces populations of fungal pathogens such as
Under the modified atmosphere treatment, the persimmons would have to be packed in semi-permeable polymeric bags and stored at 0 °C for a minimum of 28 days. As the fruit respire within the modified atmosphere bag, oxygen is consumed and carbon dioxide is produced which causes mortality of any leafrollers present. Modified atmosphere cold storage has been used by New Zealand for all persimmons exported to Australia since 2007. Since this treatment was initiated, there have been no quarantine pests detected in New Zealand persimmons exported to Australia. Treatment with either the described hot water or modified atmosphere treatments, in conjunction with other safeguards that would be required by the regulations for persimmons from New Zealand, would reduce the likelihood that persimmons will introduce injurious plant pests into the United States.
To certify that the fresh persimmon fruit from New Zealand has been grown and packed in accordance with the requirements of proposed § 319.56-76, paragraph (g) would require each consignment of fruit to be accompanied by a phytosanitary certificate issued by the NPPO of New Zealand, with an additional declaration stating that they were produced under and meet all the
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed under
APHIS is proposing to amend the regulations to allow the importation of fresh persimmon fruit (
The Small Business Administration's (SBA) small-entity standard for entities involved in fruit farming is $750,000 or less in annual receipts (NAICS 111339). It is probable that most or all U.S. persimmon producers are small businesses by the SBA standard. We expect any impact of the proposed rule for these entities would be minimal, given New Zealand's expected small share of the U.S. persimmon market.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This proposed rule would allow persimmons to be imported into the United States from New Zealand. If this proposed rule is adopted, State and local laws and regulations regarding persimmons imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
APHIS is proposing to allow the importation of fresh persimmons from New Zealand into the United States. As a condition of entry, the persimmons would have to be produced in accordance with a systems approach that would include requirements for orchard certification, orchard pest control, post-harvest safeguards, fruit culling, traceback, sampling, and treatment with either hot water or modified atmosphere treatment. The persimmons would also have to be accompanied by a phytosanitary certificate with an additional declaration stating that they were produced under, and meet all the components of, the systems approach and were inspected and found to be free of quarantine pests in accordance with the proposed requirements.
Implementing this rule will require information collection activities, such as an operational workplan, production site and packinghouse registration, container markings, production site inspections, investigations and remedial action, packinghouse monitoring, sampling, treatment records, and phytosanitary certificates.
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
A copy of the information collection may be viewed on the
The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment 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. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, we propose to amend 7 CFR part 319 as follows:
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Fresh persimmons (
(a)
(b)
(c)(1)
(2) The NPPO of New Zealand or its approved designee must visit and inspect the places of production monthly beginning at blossom drop and continuing until the end of the shipping season for quarantine pests. Appropriate pest controls must be applied in accordance with the operational workplan. If the NPPO of New Zealand finds that a place of production is not complying with the requirements of this section, no fruit from the place of production will be eligible for export to the United States until APHIS and the NPPO of New Zealand conduct an investigation and appropriate remedial actions have been implemented.
(d)(1)
(2) During the time the packinghouse is in use for exporting persimmons to the United States, the packinghouse may only accept persimmons from registered approved places of production and the fruit must be segregated from fruit intended for other markets.
(3) All diseased or insect-infested fruit and fruit with surface pests must be culled either before or during packing and removed from the packinghouse. Culling must also include any damaged or deformed fruit.
(4) Each shipping container must be marked to identify the place of production and packinghouse from which the consignment of fruit originated.
(5) The NPPO of New Zealand must monitor packinghouse operations to verify that the packinghouses are complying with the requirements of the systems approach. If the NPPO of New Zealand finds that a packinghouse is not complying with the requirements of this section, no fruit from the packinghouse will be eligible for export to the United States until APHIS and the NPPO of New Zealand conduct an investigation and appropriate remedial actions have been implemented.
(e)
(f)
(1)
(2)
(g)
Animal and Plant Health Inspection Service, USDA.
Proposed rule; reopening of comment period.
We are reopening the comment period for our proposed rule that would amend the fruits and vegetables regulations to list lemon (
The comment period for the proposed rule published on April 4, 2016 (81 FR 19063) is reopened. We will consider all comments that we receive on or before September 26, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Mr. George Balady, Senior Regulatory Policy Specialist, Regulatory Coordination and Compliance, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737; (301) 851-2240.
On April 4, 2016, we published in the
Our review of the information supporting the safe importation into the United States of citrus from Chile under the listed phytosanitary measures is examined in a commodity import evaluation document (CIED) titled “Importation of Fresh Lemons (
Comments on the proposed rule were required to be received on or before June 3, 2016. We are reopening the comment period on Docket No. APHIS-2015-0051 for an additional 30 days. We will also consider all comments received between June 4, 2016, and the date of this notice. This action will allow interested persons additional time to prepare and submit comments.
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2E25 (Regional Jet Series 1000) airplanes. This proposed AD was prompted by reports of two cases where the main landing gear (MLG) failed to fully extend; it was determined that interference between the MLG door and the MLG fairing seal prevented the MLG door from opening fully. This proposed AD would require repetitive detailed inspections of the MLG fairing, fairing seal, door, and adjacent structures; and replacement or repair of affected parts and fasteners, or removal of the door, if necessary. This proposed AD would also require installation of a safety guide in the MLG fairing and an increase of the spacing between the MLG door and the fairing, which would terminate the repetitive inspections. We are proposing this AD to detect and correct interference between the MLG door and the MLG fairing seal. Such interference could result in a MLG failing to fully extend, which could cause an unsafe asymmetric landing configuration.
We must receive comments on this proposed AD by October 11, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514 855-7401; email
You may examine the AD docket on the Internet at
Fabio Buttitta, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7303; fax 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2015-30, dated January 13, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:
Two cases of main landing gear (MLG) failure to fully extend have been reported on model CL-600-2C10/-2D15/-2D24 aeroplanes. Investigation determined that interference between the MLG door and the MLG fairing seal prevented the MLG door from opening.
Although model CL-600-2E25 aeroplanes feature new MLG door design, similar interference between the MLG door and the MLG fairing seal could exist on aeroplanes listed in the Applicability section of this [Canadian] AD. An MLG failing to extend may result in an unsafe asymmetric landing configuration.
This [Canadian] AD mandates the repetitive inspection and rectification, as required, of the MLG fairing and seal, MLG door, and adjacent structures, until the mandatory terminating action is completed.
The terminating action includes installation of a safety guide in the MLG fairing and an increase of the spacing between the MLG door and the fairing, which would terminate the repetitive inspections. You may examine the MCAI in the AD docket on the Internet at
We reviewed Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013. The service information describes procedures for detailed inspections of the MLG fairing, fairing seal, door, and adjacent structures; replacement or repair of affected parts and fasteners and removal of the door. We have also reviewed Bombardier Service Bulletin 670BA-32-049, May 26, 2015. The service information describes procedures for installation of a safety guide in the MLG fairing and an increase of the spacing between the MLG door and the fairing.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 40 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements/removals that would be required based on the results of the proposed inspection. We have received no definitive data on the costs for the on-condition repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements/removals/repairs:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII,
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by October 11, 2016.
None.
This AD applies to Bombardier, Inc. Model CL-600-2E25 (Regional Jet Series 1000) airplanes, certificated in any category, serial numbers 19002 through 19041.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports of two cases where the main landing gear (MLG) failed to fully extend; it was determined that interference between the MLG door and the MLG fairing seal prevented the MLG door from opening fully. We are issuing this AD to detect and correct interference between the MLG door and the MLG fairing seal. Such interference could result in a MLG failing to fully extend, which could cause an unsafe asymmetric landing configuration.
Comply with this AD within the compliance times specified, unless already done.
Within 660 flight hours after the effective date of this AD, conduct a detailed inspection for damage to the MLG fairing, fairing seal, door, and adjunct structures, and for missing parts and fasteners, in accordance with Part A of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013. Repeat the inspection thereafter at intervals not to exceed 660 flight hours until the installation required by paragraph (m) of this AD is done.
If damage to the MLG fairing seal is found during any inspection required by paragraph (g) of this AD, before further flight, replace the seal, in accordance with Part B of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013; or remove the door, in accordance with Part C of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013.
If damage to the MLG door is found during any inspection required by paragraph (g) of this AD, before further flight, repair using a method approved by the Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO); or remove the door, in accordance with Part C of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013.
If damage to the MLG fairing is found during any inspection required by paragraph (g) of this AD, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
If damage to the adjacent structure is found or if any part or fastener is found missing or damaged during any inspection required by paragraph (g) of this AD, before further flight, do the applicable actions specified in paragraphs (k)(1) and (k)(2) of this AD.
(1) Replace missing or damaged parts and fasteners, in accordance with Part A of the Accomplishment Instruction of Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013, except where Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013, specifies to contact Bombardier, before further flight, repair using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
(2) Repair damaged structure using a method approved by the Manager, New York ACO, ANE-170, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO.
For any MLG inboard door that has been removed as specified in paragraph (g), (h), or (i) of this AD: Reinstallation of the door, if accomplished, must be done in accordance with Part D of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013. Before further flight after any reinstallation, the inspection required by paragraph (g) of this AD must be done and the inspection must be repeated thereafter at the times specified in paragraph (g) of this AD until the installation required by paragraph (m) of this AD is done.
Except as required by paragraph (n) of this AD: Within 6,600 flight hours or 36 months, whichever occurs first, after the effective date of this AD, install a safety guide on the MLG fairing and increase the spacing between the MLG door and the fairing, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-049, dated May 26, 2015. Accomplishment of these actions terminates the requirement of paragraph (g) of this AD.
If the MLG door has been removed in accordance with Part C of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-041, dated March 28, 2013, the installation required by paragraph (m) of this AD may be delayed until the MLG door is reinstalled in accordance with paragraph (l) of this AD. When the removed MLG door is reinstalled, the installation required by paragraph (m) of this AD must be done at the time specified in paragraph (m) of this AD or before further flight after reinstallation of the removed MLG door, whichever occurs later.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2015-30, dated January 13, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email
Securities and Exchange Commission.
Proposed rule; extension of comment period.
The Securities and Exchange Commission is extending the comment period for a release proposing revisions to the property disclosure requirements for mining registrants and related guidance [Release Nos. 33-10098 and 34-78086 (June 16, 2016)], published June 27, 2016. The original comment period is scheduled to end on August 26, 2016. The Commission is extending the time period in which to provide the Commission with comments until September 26, 2016. This action will allow interested persons additional time to analyze the issues and prepare their comments.
The comment period for the proposed rule published June 27, 2016, at 81 FR 41651, is extended. Comments should be received on or before September 26, 2016.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Use the Federal eRulemaking Portal (
• Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Studies, memoranda or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the SEC's Web site. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Elliot Staffin, Special Counsel, in the Division of Corporation Finance, at (202) 551-3450, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
The Commission has requested comment on a release proposing revisions to the property disclosure requirements for mining registrants and related guidance, currently set forth in Item 102 of Regulation S-K under the Securities Act of 1933 and the Securities Exchange Act of 1934 and in Industry Guide 7. The proposed revisions would modernize the Commission's disclosure requirements and policies for mining properties by more closely aligning them with current industry and global regulatory practices and standards. In addition, the proposed revisions would rescind Industry Guide 7, amend section 102 of Regulation S-K, add new exhibit (96) to Item 601 of Regulation S-K, add new subpart 1300 of Regulation S-K, amend Form 1-A and amend Form 20-F.
The Commission originally requested that comments on the release be received by August 26, 2016. The Commission has received requests for an extension of time for public comment on the proposal to, among other things, allow for a more complete assessment of the numerous provisions of the proposed rules, including a fuller consideration of their implications, and to improve the quality of responses.
By the Commission.
Office of Workers' Compensation Programs, Labor.
Notice of proposed rulemaking; request for comments.
The Office of Workers' Compensation Programs is proposing rules to implement the Longshore and Harbor Workers' Compensation Act's maximum and minimum compensation provisions. Some of these provisions, which cap the amounts of compensation and death benefits payable to entitled claimants and provide a floor below which compensation may not fall, have become the topic of litigation. The proposed rules would clarify how the Department interprets and applies these provisions. In addition, the proposed rules would implement the Act's annual compensation-adjustment mechanism for permanent total disability compensation and death benefits.
The Department invites written comments on the proposed regulations from interested parties. Written comments must be received by October 25, 2016.
You may submit written comments, identified by RIN number 1240-AA06, by any of the following methods. To facilitate the receipt and processing of comment letters, OWCP encourages interested parties to submit their comments electronically.
•
•
•
Antonio Rios, Director, Division of Longshore and Harbor Workers' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, Room C-4319, 200 Constitution Avenue NW., Washington, DC 20210. Telephone: (202)-693-0038 (this is not a toll-free number). TTY/TDD callers may dial toll free 1-877-889-5627 for further information.
The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901-50 (LHWCA or Act), establishes a federal workers' compensation system for an employee's disability or death arising in the course of covered maritime employment. 33 U.S.C. 903(a), 908, 909. This proposed rule would implement the Act's provisions on maximum and minimum amounts of compensation payable.
Disability, which the Act defines as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury,” 33 U.S.C. 902(10), “is in essence an economic, not a medical concept.”
Several statutory sections have an impact on determining the amount of compensation payable. Section 10, “Determination of Pay,” 33 U.S.C. 910, is the starting point in the statutory scheme. It sets out rules for calculating the employee's average weekly wage (AWW) as of the time of the employee's disabling injury. This AWW serves as the basis for all future benefit calculations for that worker throughout the life of his or her claim.
The second step is to determine what percentage of the employee's AWW a claimant will receive in compensation. This is determined under section 8, “Compensation for Disability,” and section 9, “Compensation for Death,” 33 U.S.C. 908, 909. Compensation payable for disability varies based on the nature and extent of an employee's disability. Section 8 establishes four basic categories of disability: Permanent total, temporary total, permanent partial, and temporary partial. 33 U.S.C. 908(a)-(c), (e). In general, an injury is “total” if the worker is unable to work after the injury and “partial” if the worker is able to work at a diminished wage. A disability is “temporary” if the employee's medical condition is improving and becomes “permanent” when he or she reaches maximum medical improvement.
For all disability categories, the Act uses a “two-thirds” rule to compute compensation. Totally disabled employees—those who are unable to return to their original employment or earn wages in suitable alternative employment—receive two-thirds the AWW they were earning at the time of injury. 33 U.S.C. 908(a)-(b). Partially disabled employees—those who experience the loss or loss-of-use of body parts specified in the statute—are entitled to two-thirds of their date-of-injury AWW for a specified number of weeks. 33 U.S.C. 908(c)(1)-(19). Other partially disabled employees—those
The third step is to apply the statute's compensation-limiting rules. Despite the general two-thirds rule, section 6, “Compensation,” 33 U.S.C. 906, both caps the compensation amounts that can be received (a “maximum”) and provides a floor below which compensation may not fall (a “minimum”). These limits are applied after calculating two-thirds of the worker's date-of-injury AWW. The Act sets the maximum for all disability compensation categories at 200 percent of the “applicable national average weekly wage.” 33 U.S.C. 906(b)(1). Total compensation for death—the amount payable to all survivors in the aggregate—is also limited to that 200-percent figure, or to the deceased employee's AWW, whichever is less. 33 U.S.C. 909(e)(1);
The Secretary of Labor determines the national average weekly wage before October 1 of each year, and it applies for a fiscal year (FY), from October 1 until the next September 30. 33 U.S.C. 906(b)(3). A given fiscal year's national average weekly wage, and the resulting maximum and minimum rates, apply to “employees or survivors
Finally, in addition to section 6's provisions allowing adjustments to the maximum compensation rate, section 10(f) provides another mechanism for adjusting compensation amounts over time. “[B]enefits payable for permanent total disability or death” are increased at the beginning of each fiscal year (October 1) by the same percentage as any increase in the national average weekly wage (as calculated under section 6), but no more than 5 percent. 33 U.S.C. 910(f). The primary difference between the two adjustment provisions is that section 10(f) applies to all claimants receiving compensation for permanent total disability or death, while section 6(c) assists only those affected by the maximum rate. Through these provisions, compensation payable to a claimant each year increases by the same amount as wage-growth generally, ensuring that the value of the workers' compensation is not eroded over time.
In recent litigation, disputes have arisen over which fiscal year's maximum rate or rates apply to a given claimant, specifically: (1) In what fiscal year is a claimant “newly awarded compensation”; and (2) in what fiscal year is a claimant “currently receiving compensation for permanent total disability or death.” On the first question, the dispute is whether a claimant is “newly awarded compensation” when he or she first becomes disabled—and therefore entitled to compensation—or when an administrative law judge issues a compensation order. On the second question, the dispute is whether a claimant is “currently receiving compensation for permanent total disability” when he or she first becomes permanently totally disabled or when he or she actually receives compensation for permanent total disability.
The Supreme Court resolved the first of these questions in its
The Supreme Court construed this part of section 6(c) in
The ALJ found that Mr. Roberts' compensation rate for total disability—two-thirds of his AWW—was $1,902.05, and that his compensation rate for permanent partial disability—two-thirds of the difference between his average weekly and his residual wage-earning capacity—was $1,422.05. He found, however, that Mr. Roberts was subject, for all periods of disability, to the maximum rate of $966.08 in effect during FY 2002, because that was when he first became disabled, and was thus “newly awarded compensation.”
The Benefits Review Board, relying on its earlier decision in
The Supreme Court agreed with the Ninth Circuit's interpretation of section 6(c)'s “newly awarded compensation” clause. The Court acknowledged that Mr. Roberts' contrary view was “appealing” because “[i]n ordinary usage, `award' most often means `give by judicial decree' or `assign after careful judgment.' ”
The Court gave several reasons for its holding. First, the Court recognized that construing “newly awarded compensation” to mean a formal compensation order would be “incompatible with the Act's design.”
Second, the Court examined the Act's administrative structure, which requires employers to pay compensation within 14 days after the employer knows of the worker's injury (
Reading section 6(c) in the context of the Act's comprehensive scheme, the Court further explained that “applying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA's purpose to compensate disability,” which focuses on wages at the time of the injury as the basis to compute compensation.
Moreover, the Court found that applying the date-of-disability maximum rate as suggested by the Director and Employer “avoids disparate treatment of similarly situated employees . . . who earn the same salary and suffer the same injury on the same day.”
Third, the Court believed its approach “discourages gamesmanship in the claims process.”
While the Supreme Court's
Although the Eleventh Circuit initially disagreed with the Ninth Circuit's construction of the “currently receiving” clause,
The Eleventh Circuit rejected Mr. Boroski's argument and held that “ `currently receiving compensation' in § 906(c) means `currently entitled to compensation.' ”
Taking its analytical lead from the Supreme Court in
The court also found the Director's position more consistent with section 10(f)'s annual adjustment mechanism. The court reasoned that the Director's interpretation of the “currently receiving” clause operates similarly, “gradually increasing benefits to maintain the
Finally, the court determined that the Director's interpretation avoided disparate treatment of similarly situated claimants. “Under the Director's interpretation, Boroski receives the same benefits as a similarly situated employee who was first injured
For all of these reasons, the Eleventh Circuit held, as had the Ninth Circuit in
The Benefits Review Board subsequently reached the same conclusion as the Ninth and Eleventh Circuits.
The Board also addressed a related question on the interplay between sections 6 and 10(f) in
As discussed in the Section-by-Section Explanation below, this proposed rule implements the Act's provisions governing the maximum and minimum amount of disability compensation and death benefits payable. The proposed regulations do not govern general compensation calculations (referred to in the rules as the “calculated compensation rate”), and the fact that compensation payable is subject to these maximum and minimum rates does not mean that claimants are necessarily entitled to them. Rather, the proposed regulations simply provide that disability compensation and death benefits can go no higher than the applicable maximum rate or lower than the applicable minimum rate.
The proposed rule includes two subparts. Subpart G describes the annual adjustment to compensation and death benefits provided under section 10(f) of the Act, 33 U.S.C. 910(f). While section 10(f) allows for an annual adjustment to all payments of compensation for permanent total disability or death benefits, including those cases where neither the maximum nor the minimum rates are implicated, the Department has included section 10(f) in this rulemaking because its application can be closely tied with the maximum compensation or death benefits payable in certain cases. These interrelationships are detailed in the Section-by-Section Explanation below.
Subpart H includes proposed regulations implementing the Act's maximum and minimum provisions. The Department has organized these sections first to cover general topics, then by whether the rules govern maximum or minimum compensation payable, and finally by categories of compensation payable (
This discussion contains an explanation of each proposed rule. Many of the rules include examples that use the Department's yearly calculation of the applicable national average weekly wage, the maximum and minimum weekly compensation rates, and percentage adjustments available under section 10(f), 33 U.S.C. 910(f). This information is routinely available on OWCP's Web site.
Some
Section 10(f) of the Act, 33 U.S.C. 910(f), provides for an annual upward percentage adjustment of permanent total disability compensation rates and death benefits so that the value of the compensation received does not erode over time. Proposed § 702.701 sets out the basic rules for section 10(f) adjustments.
Proposed paragraphs (a) and (b) describe the section 10(f) adjustment and how the fiscal year percentage is determined. Consistent with the statute, paragraph (a) states that section 10(f) adjustments apply each fiscal year to permanent total disability compensation and death benefits, and that those adjustments may only increase amounts payable. 33 U.S.C. 910(f) (“benefits payable for permanent total disability or death . . . shall be increased”); 33 U.S.C. 910(g) (“in no event shall compensation for death benefits be reduced”). Paragraph (b) describes how the Department calculates the annual section 10(f) adjustment, a method dictated by section 10(f) itself. In any given fiscal year, the 10(f) adjustment is the percentage increase in the applicable national average weekly wage over the prior fiscal year's applicable national average or five percent, whichever is lower.
Proposed paragraphs (c) through (e) set out how the fiscal year percentage is applied in individual cases. Paragraph (c) specifies that section 10(f) adjustments are applied each October 1 to the prior year's compensation or death benefits payable to the claimant. By using the statutory term “payable,” the Department intends the percentage increase to apply to the compensation and death benefits due during the prior year, even if not actually paid. Paragraph (d) implements the statutory requirements that calculations resulting from section 10(f) adjustments are rounded to the nearest dollar and that no adjustment is made if the amount is less than one dollar.
Finally, proposed paragraph (f) states that the adjustments do not apply to compensation for temporary or partial disability, including temporary total disability, temporary partial disability, and permanent partial disability. The paragraph reflects the limitation set forth in paragraph (a) and is added for clarity.
Proposed § 702.801 describes the statutory provisions this subpart is intended to implement. Paragraph (a) generally lists the statutory provisions that affect the maximum and minimum compensation and death benefits payable to entitled individuals. Section 6(b) of the LHWCA, 33 U.S.C. 906(b), sets the maximum compensation rate for death or disability compensation at 200 percent of the applicable national average weekly wage, and the minimum compensation rate for total disability at the lower of the employee's average weekly wage or 50 percent of the applicable national average weekly wage. Section 6(b) also provides that the
Because the interpretation of section 6(c) is important to determining how the maximum and minimum provisions apply and has been the subject of litigation, proposed paragraph (b) more specifically addresses section 6(c)'s “newly awarded compensation” and “currently receiving compensation” phrases. Paragraph (b)(1) adopts the Supreme Court's conclusion in
Proposed § 702.802(a) lists several circumstances in which this subpart's rules do not apply, including: Approved settlements made under section 8(i) of the Act, 33 U.S.C. 908(i); payments for an employee's compensable death made to the Special Fund when the employee has no eligible survivors, 33 U.S.C. 944(c)(1); payments for medical expenses, 33 U.S.C. 907; and any other compensation calculated and paid in a lump sum, such as the two years of death benefits payable to an employee's eligible surviving spouse who remarries, 33 U.S.C. 909(b), or when compensation payments are commuted, 33 U.S.C. 909(g). In all of these circumstances, the maximum and minimum weekly rates do not apply either because the compensation due is not based on a weekly rate (
Proposed § 702.802(b) provides that the rules governing minimum compensation and death benefits payable do not apply to claims arising under the Defense Base Act (DBA), 42 U.S.C. 1651
This section defines certain terms used in this subpart; these definitions do not apply outside of this subpart. Proposed paragraph (a) defines a claimant's “calculated compensation rate” as the weekly compensation or death benefits payable prior to any consideration of the maximum or minimum rates, or a section 10(f) adjustment. As discussed above (
Proposed paragraph (b) defines the phrase “date of disability” as the date an employee first becomes economically impaired—or, in other words, unable to earn the same wages—as a result of a covered injury. The phrase incorporates the statutory definition of “disability,”
The proposed rule, however, excepts from the general “date of disability” definition three situations that demand special treatment. Paragraph (b)(2)(i) provides that for scheduled permanent partial disabilities under 33 U.S.C. 908(c)(1)-(20) that are not preceded by another category of disability (
The remaining definitions explain how basic terms are used in the proposed rule. Paragraph (c) defines the dates of a standard fiscal year. Paragraphs (d) and (e) define “maximum rate” and “minimum rate” as the weekly compensation rates the Department calculates for each fiscal year. And paragraph (f) defines a “section 10(f) adjustment” as the annual
Proposed § 702.804 explains how the Department calculates basic weekly maximum and minimum rates for each fiscal year. Paragraph (a) notes that these weekly compensation rates are one factor considered when calculating compensation and death benefits payable. Paragraphs (b) and (c) set forth the calculation formulas for weekly maximum and minimum rates. Both are based on the national average weekly wage, which the Act defines as the “national average weekly earnings of production or nonsupervisory workers on private nonagricultural payrolls.” 33 U.S.C. 902(19). These statistics are compiled on an ongoing basis by the Department's Bureau of Labor Statistics. Before each new fiscal year, the Department calculates the average earnings of these employees for the period October 1 through June 30 (
Proposed § 702.805 provides that the maximum rate in effect for the fiscal year on the employee's date of disability applies to all compensation payable for temporary partial disability, temporary total disability, or permanent partial disability, including compensation payable in subsequent fiscal years. This rule effectuates the Supreme Court's construction of the “newly awarded compensation” clause by applying the maximum rate for the fiscal year the employee's disability begins. For these types of compensation, the date-of-disability fiscal year's maximum rate applies to all compensation payments—including compensation payable for subsequent fiscal years—because section 6(c)'s “currently receiving compensation” clause does not apply. 33 U.S.C. 906(c) (maximum rate determinations “with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period[.]”).
The first example at paragraph (b)(1) sets out a common scenario involving an injured employee who is temporarily totally disabled for a period prior to being permanently partially disabled. Although his compensation periods span more than one fiscal year, the maximum rate that applies remains the rate in effect on his date of disability.
Proposed § 702.806 implements both the “newly awarded” and “currently receiving” compensation clauses for permanent total disability compensation as they pertain to the maximum compensation payable. Paragraph (a) provides that the maximum rate for the fiscal year during which the employee first becomes permanently and totally disabled applies to all compensation payable during that fiscal year. Paragraph (b) then provides that all periods of permanent total disability in subsequent fiscal years arising from the same injury are subject to the maximum rates for those subsequent fiscal years because the employee is then “currently receiving compensation.”
Proposed paragraph (c) addresses how the 10(f) adjustment applies in a “cross-over” year. A cross-over year is one in which the claimant's compensation was paid at the maximum rate in the current fiscal year, but the claimant's calculated compensation rate does not exceed the maximum rate set for the next fiscal year. In those circumstances, the rule requires that the claimant's compensation for the next fiscal year be increased by the amount of the 10(f) adjustment up to the maximum for that fiscal year.
The examples in proposed paragraph (d) apply these principles. Paragraph (d)(1) presents the relatively straightforward situation of an employee who is permanently totally disabled from the time of injury. He is “newly awarded” compensation in the fiscal year he became disabled and his compensation is subject to that fiscal year's maximum rate. In subsequent years, he is “currently receiving” compensation and his compensation is subject to the maximum rate for each subsequent fiscal year. Paragraph (d)(2) adds an additional wrinkle to the first example. Here, the employee suffers a period of temporary total disability that spans more than one fiscal year before he becomes permanently totally disabled. The maximum that applies to the entire temporary total disability compensation period is the fiscal year rate in effect on the date of disability (in the example, FY 2000), which is when the employee is “newly awarded” compensation.
Finally, proposed paragraph (d)(3) demonstrates how the rule operates in a “cross-over” year. In the example, employee C's calculated compensation rate exceeds the annual fiscal year maximum rate each year from when he was first permanently totally disabled in FY 2009 through FY 2012. In FY 2013, however, the employee's calculated compensation rate falls below the maximum rate and remains below that rate even after the addition of a section 10(f) adjustment. Thus, for FY 2013, employee C's compensation is not limited by the maximum rate.
Determining the maximum rates for death benefits in any particular case can be straightforward or involve several statutory provisions. The proposed rule integrates these provisions to provide a comprehensive approach to the issue.
LHWCA section 6(b)(1) applies the “applicable” maximum rate to all compensation for disability or death. For death benefits purposes, proposed § 702.807(a) defines the “applicable” rate as the fiscal-year rate in effect when the employee died. By using the employee's date of death, the rule applies the “newly awarded” clause in the same manner as the Supreme Court applied it to disability claims in
Proposed § 702.807(b) sets out the general rules for determining the death-benefits cap in the year the employee died. These limits are compelled by LHWCA section 6(b)(1) along with the provisions of section 9(e), 33 U.S.C. 909(e). Section 9(e) provides an alternative method for computing death benefits for survivors of lower-wage employees to boost the benefit amount. If the deceased employee's actual average weekly wage was lower than the national average weekly wage, death benefits are calculated as a percentage of the national average weekly wage instead of a percentage of the actual wage. This results in a higher calculated compensation rate than if the calculation were based on the employee's actual wage. Survivors are entitled to benefits at the higher calculated rate except when that rate exceeds the employee's full actual weekly wage. In that event, section 9(e)(1) sets an initial cap by providing that total weekly death benefits “shall not exceed the lesser of the average weekly wages of the deceased” (or the section 6(b)(1) maximum rate). 33 U.S.C. 909(e)(1). Thus, in no event may weekly death benefits payable in the year of the employee's death exceed the employee's actual average weekly wages. Proposed paragraph (b) implements these provisions by limiting “aggregate” weekly death benefits—meaning the death benefits payable to all survivors combined—to the lower of the maximum rate applicable for the fiscal year in which the employee died or the employee's actual average weekly wages.
Proposed paragraph (c) sets out rules governing payments for subsequent fiscal years. Consistent with the “currently receiving” clause, paragraph (c)(1) provides that each subsequent fiscal year's maximum rate applies to aggregate death benefits. Paragraph (c)(2) provides an exception to the section 9(e)(1) feature limiting death benefits to no more than the employee's actual average weekly wages. If death benefits were paid at the employee's full average weekly wage in the year of death, paragraph (c)(2) provides that death benefits payable may be adjusted upward under section 10(f).
Finally, proposed paragraph (d) addresses LHWCA section 9(e)'s specific limit on death benefits payable when death results from an occupational disease that manifested after the employee retired voluntarily (
The example at proposed paragraph (e)(1) illustrates that the maximum rate applicable at the time of the employee's death applies to death benefits, even when the employee's injury occurred in an earlier fiscal year. Employee A's injury occurred in FY 2013 but he did not die as a result of the injury until FY 2014. His survivor's death benefits for the remainder of the year in which he died are subject to the FY 2014 maximum rate, with subsequent death benefits subject to each subsequent fiscal year's rate.
Paragraph (e)(2)'s example demonstrates how the death-benefits-calculation method for survivors of low-wage earners interfaces with the cap placed on those benefits in some circumstances. In the example, employee B's weekly earnings fell below the national average during the year of her death. Thus, her survivor's death benefits are computed using the higher national average weekly wage. 33 U.S.C. 909(e);
Paragraph (e)(3) sets out an example involving an occupational disease discovered more than one year post-retirement that leads to death. Employee C's compensation during his lifetime is calculated based on the FY 2002 national average weekly wage because his disease manifested then and he had voluntarily retired more than one year earlier. Based on the date of employee C's death, his survivors' death benefits are calculated based on the national average weekly wage for FY 2015. 33 U.S.C. 910(d)(2)(B); 20 CFR 702.604(b). This calculation yields a weekly figure greater than 1/52 part of the employee's last year of earnings. Thus, the total death benefits payable are capped at 1/52 part of the employee's actual earnings, except for section 10(f) adjustments in subsequent fiscal years.
The LHWCA places no minimum compensation requirements on payments for temporary partial disability or permanent partial disability. Accordingly, proposed § 702.808 simply states that there is no minimum rate for these types of compensation.
Proposed § 702.809 provides that the minimum rate in effect for the fiscal year on the employee's date of disability applies to all compensation payable for temporary total disability, including
Proposed paragraph (b)'s example demonstrates how the minimum rate provision works when the employee's calculated compensation rate falls below it. In the example, employee A's calculated compensation rate for FY 2014 (the year of his injury) is $333.34 per week. That number falls below the FY 2014 minimum rate of $336.67. Thus, employee A's compensation is raised to the minimum rate. Although his temporary total disability continues into FY 2015, his rate remains tied to the FY 2014 minimum because neither section 6(c)'s “currently receiving” clause nor section 10(f)'s adjustments apply to compensation for temporary disabilities.
Proposed § 702.810(a) provides that the lower of the minimum rate in effect on the date of disability
Proposed paragraph (b) describes how the minimum applies in subsequent fiscal years. It sets the minimum compensation level at the lower of the minimum rate for each subsequent fiscal year or the employee's actual average weekly wages on the date of disability. By applying subsequent fiscal years' minimum rates, the regulation implements section 6(c)'s “currently receiving” clause.
Proposed paragraph (c)'s example shows how this regulation applies when a low-wage earner suffers a permanent total disability. Because his calculated compensation rate for the fiscal year in which he first became disabled (in the example, FY 2003) was below the applicable fiscal year minimum rate, and his actual weekly wages were above the fiscal year minimum, he is compensated at the minimum rate. But in subsequent fiscal years, when the minimum rises above the employee's actual average weekly wages at the time of disability, he receives his actual wages in compensation, subject in following years to section 10(f) adjustments.
Rather than applying weekly minimum rates like those used for temporary total or permanent total disability compensation—specified amounts below which compensation may not fall—section 9(e) of the Act, 33 U.S.C. 909(e), uses a different mechanism to ensure a minimum compensation level for an employee's survivors. Section 9(e) does this by using the national average weekly wage calculated by the Department under section 6(b) as a proxy to compute death benefits when the deceased employee's actual weekly wage falls below the national average.
Section 39(a) of the LHWCA, 33 U.S.C. 939(a), authorizes the Secretary of Labor to prescribe rules and regulations necessary for the administration of the Act.
This rulemaking would impose no new collections of information.
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. The Department has considered this proposed rule with these principles in mind and has concluded that the regulated community will benefit from this regulation.
This proposed rule will benefit the parties by providing them with greater guidance on applying the Act's maximum and minimum compensation provisions and section 10(f) adjustments in determining the amount of disability compensation or death benefits payable. By clarifying how these provisions apply, the rule will also promote consistency so that similarly situated claimants receive similar compensation or death benefits. In addition, the rule will benefit the regulated community by forestalling further litigation over the “currently receiving” clause, which neither the Supreme Court nor several circuit courts have yet construed. Indeed, the absence of regulations implementing these statutory provisions led to much of the litigation described above.
Finally, because this is not a “significant regulatory action” within the meaning of Executive Order 12866, the Office of Management and Budget has not reviewed it prior to publication.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
The Regulatory Flexibility Act of 1980, as amended (5 U.S.C. 601
The Department has determined that a regulatory flexibility analysis under the RFA is not required for this rulemaking. While many longshore employers are small entities within the meaning of the RFA,
With one small exception, these decisions comport with the Director's longstanding interpretation and application of the maximum and minimum compensation provisions. That exception involved cases in which the employee's disability was initially something less than permanent total—temporary total, permanent partial, or temporary partial—and in a later fiscal year became permanently totally disabling. Prior to the Ninth Circuit's decision in
Based on these facts, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. Thus, a regulatory flexibility analysis is not required. The Department invites comments from members of the public who believe the regulations will have a significant economic impact on a substantial number of small longshore employers or insurers. The Department has provided the Chief Counsel for Advocacy of the Small Business Administration with a copy of this certification.
The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The proposed rule 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,” if promulgated as a final rule.
This proposed rule meets the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Administrative practice and procedure, Claims, Longshore and harbor workers, Maximum compensation rates, Minimum compensation rates, Workers' compensation.
For the reasons set forth in the preamble, the Department of Labor proposes to amend 20 CFR part 702 as follows:
5 U.S.C. 301, and 8171
(a) Claimants receiving compensation for permanent total disability or death benefits are entitled to section 10(f) adjustments each fiscal year. A section 10(f) adjustment cannot decrease the compensation or death benefits payable to any claimant.
(b) The section 10(f) adjustment for a given fiscal year is the lower of:
(1) The percentage by which the new fiscal year's national average weekly wage exceeds the prior fiscal year's national average weekly wage as determined by the Department (
(2) 5 percent.
(c) Section 10(f) percentage increases are applied each October 1 to the amount of compensation or death benefits payable in the prior fiscal year.
(d) In applying section 10(f) adjustments—
(1) Calculations are rounded to the nearest dollar; and
(2) No adjustment is made if the calculated amount is less than one dollar.
(e) A section 10(f) adjustment must not increase a claimant's weekly compensation or death benefits beyond the applicable fiscal year's maximum rate.
(f) Section 10(f) adjustments do not apply to compensation for temporary or partial disability.
(a) This subpart implements the Act's provisions that affect the maximum and minimum rates of compensation and death benefits payable to employees and survivors. These statutory provisions include sections 6(b) and (c), and 9(e). 33 U.S.C. 906(b), (c); 909(e). It is intended that these statutory provisions be construed as provided in this subpart.
(b) These regulations implement section 6(c), 33 U.S.C. 906(c), based on the following concepts:
(1) An employee is “newly awarded compensation” when he or she first becomes disabled due to an injury;
(2) A survivor is “newly awarded compensation” on the date the employee died; and
(3) An employee or survivor is “currently receiving compensation” when compensation for permanent total disability or death benefits is payable, regardless of when payment is actually made.
(a) This subpart applies to all compensation and death benefits paid under the Act with the following exceptions:
(1) Amounts payable under an approved settlement (
(2) Amounts paid for an employee's death to the Special Fund (
(3) Any payments for medical expenses (
(4) Any other lump sum payment of compensation or death benefits, including aggregate death benefits paid when a survivor remarries (
(b) The rules in this subpart governing minimum disability compensation and death benefits do not apply to claims arising under the Defense Base Act, 42 U.S.C. 1651 (
The following definitions apply to this subpart:
(a) Calculated compensation rate means the amount of weekly compensation for total disability or death that a claimant would be entitled to if there were no maximum rates, minimum rates, or section 10(f) adjustments.
(b) Date of disability
(1) Except as provided in paragraph (b)(2), the date of disability is the date on which the employee first became incapable, because of an injury, of earning the same wages the employee was receiving at the time of the injury.
(2) Exceptions:
(i) For scheduled permanent partial disability benefits under 33 U.S.C. 908(c)(1)-(20) that are not preceded by a permanent total, temporary total, or temporary partial disability resulting from the same injury, the date of disability is the date on which the employee first becomes permanently impaired by the injury to the scheduled member.
(ii) For an occupational disease that does not immediately result in disability, the date of disability is the date on which the employee becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between his or her employment, the disease, and the disability.
(iii) For any disability lasting 14 or fewer days, the date of disability is 4 days after the date on which the employee first became incapable, because of an injury, of earning the same wages the employee was receiving at the time of the injury.
(c) Fiscal year or FY means the period from October 1 of a calendar year until September 30 of the following calendar year.
(d) Maximum rate means the maximum weekly compensation rate calculated by the Department for a given fiscal year as described in § 702.804(b).
(e) Minimum rate means the minimum weekly compensation rate calculated by the Department for a given fiscal year as described in § 702.804(c).
(f) Section 10(f) adjustment means the annual increase that certain claimants receiving compensation for permanent total disability or death are entitled to each fiscal year under 33 U.S.C. 910(f) and as calculated by the Department as described in § 702.701(b).
(a) For each fiscal year, the Department must determine a weekly maximum and minimum compensation rate. These amounts are called the maximum and minimum rates in this subchapter. In combination with other factors, these rates are used to determine compensation payments under the Act.
(b) The maximum compensation rate in effect for a given fiscal year is 200% of the national average weekly earnings of production or nonsupervisory workers on private, nonagricultural payrolls, as calculated by the Department, for the first three quarters of the preceding fiscal year.
(c) The minimum compensation rate in effect for a given fiscal year is 50% of the national average weekly earnings of production or nonsupervisory workers on private, nonagricultural payrolls, as calculated by the Department, for the first three quarters of the preceding fiscal year.
(a) The maximum rate in effect on the date of disability applies to all compensation payable for permanent partial disability, temporary partial disability, and temporary total disability.
(b) Examples:
(1) Employee
(2) Employee
(3) Employee
(a) The maximum rate in effect on the date that the employee became totally and permanently disabled applies to all compensation payable for permanent total disability during that fiscal year.
(b) For all periods the employee is permanently and totally disabled in subsequent fiscal years, the weekly compensation payable is subject to each subsequent year's maximum rate.
(c) If a claimant is receiving compensation for permanent total disability at the maximum rate for the current fiscal year, but the next fiscal year's maximum rate will be higher than the claimant's calculated compensation rate, the claimant's compensation for the next fiscal year will increase by the amount of the 10(f) adjustment, subject to the maximum rate for the next fiscal year.
(d) Examples:
(1) Employee
(2) Employee
(3) Employee
(a) The maximum rate in effect on the date that the employee died applies to all death benefits payable during that fiscal year.
(b) Aggregate weekly death benefits paid to all eligible survivors during the fiscal year in which the employee died must not exceed the lower of—
(1) The maximum rate for that fiscal year; or
(2) The employee's average weekly wages.
(c) For subsequent fiscal years—
(1) Aggregate weekly death benefits paid during each subsequent fiscal year are subject to each subsequent year's maximum rate.
(2) If death benefits were paid in the first year at the employee's full average weekly wage under paragraph (b)(2), the aggregate weekly death benefits paid for each subsequent year may not exceed the current benefit rate plus the subsequent year's section 10(f) adjustment (
(d) Post-retirement occupational diseases. Notwithstanding paragraphs (a)-(c), if an employee's death results from an occupational disease where the date of disability occurred after the employee voluntarily retired—
(1) Aggregate weekly death benefits paid to all eligible survivors during the fiscal year in which the employee died must not exceed the lower of:
(i) The maximum rate for that fiscal year; or
(ii) One fifty-second part of the employee's average annual earnings during the 52-week period preceding retirement.
(2) For subsequent fiscal years—
(i) Aggregate weekly death benefits paid during each subsequent fiscal year are subject to each subsequent year's maximum rate.
(ii) If death benefits were paid in the first year at 1/52 part of the employee's average annual earnings prior to retirement under paragraph (d)(1)(ii), the aggregate weekly death benefits paid for each subsequent year may not exceed the current benefit rate plus the subsequent year's section 10(f) adjustment (
(e) Examples:
(1) Employee
(2) Employee
(3) Employee
There is no minimum rate for compensation paid for partial disability, whether temporary or permanent.
(a) The minimum compensation payable for temporary total disability is the lower of:
(1) The minimum rate in effect on the date of disability, or
(2) The employee's average weekly wage on the date of disability.
(b) Example: Employee
(a) The weekly minimum compensation payable for the fiscal year in which the employee became permanently and totally disabled is the lower of:
(1) The minimum rate in effect on the date of disability, or
(2) The employee's average weekly wage on the date of disability.
(b) For all periods the employee is permanently and totally disabled in subsequent fiscal years, the weekly minimum compensation payable is the lower of:
(1) Each subsequent fiscal year's minimum rate, or
(2) The employee's average weekly wage on the date of disability.
(c) Example: Employee
(a) The average weekly wage used to compute death benefits is the greater of—
(1) The deceased employee's average weekly wages; or
(2) The national average weekly wage in effect at the time of the employee's death.
(b) The weekly minimum rate does not apply to death benefits.
National Indian Gaming Commission, Department of the Interior.
Notice of proposed rulemaking.
The purpose of this document is to propose amendments to the procedures followed by the National Indian Gaming Commission (Commission) when processing a request under the Privacy Act of 1974. The proposed amendments make the following changes to the current regulations. These changes will serve to update certain Commission information, streamline how the Commission processes its Privacy Act requests, and aligns those processes with its procedures for processing Freedom of Information Act requests.
Written comments on this proposed rule must be received on or before October 11, 2016.
Comments may be mailed to Attn: National Indian Gaming Commission, FOIA/PA Officer, C/O Department of the Interior, 1849 C Street NW., Mail Stop #1621, Washington, DC 20240 or faxed to (202) 632-7066 (this is not a toll free number). Comments may be inspected between 9:00 a.m. and noon and between 2:00 p.m. and 5:00 p.m., Monday through Friday, at 90 K Street NE., Washington, DC 20002. Comments may also be submitted electronically at
Andrew Mendoza at (202) 632-7003 or by fax (202) 632-7066 (these numbers are not toll free).
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal.
The Indian Gaming Regulatory Act (IGRA), enacted on October 17, 1988, established the National Indian Gaming Commission. Congress enacted the Privacy Act in 1974 (Pub. L. 93-579, 5
Regulatory Flexibility Act: The Commission certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The Commission is an independent regulatory agency, and, as such, is exempt from the Unfunded Mandates Reform Act, 2 U.S.C. 1501
In accordance with Executive Order 12630, the Commission has determined that this proposed rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
The proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The proposed rule will not result in an annual effect on the economy of more than $100 million per year; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S. based enterprises.
The proposed rule does not contain any information collection requirements for which the Office of Management and Budget approval under the Paperwork Reduction Act (44 U.S.C. 3501-3520) would be required.
The Commission has determined that the proposed rule does not constitute a major Federal Action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969.
Administrative practice and procedure, Privacy, Reporting and recordkeeping.
For the reasons set forth in the preamble, the Commission proposes to revise part 25 CFR part 515 to read as follows:
5 U.S.C. 552a
This part contains the regulations the National Indian Gaming Commission (Commission) follows in implementing the Privacy Act of 1974. These regulations should be read together with the Privacy Act, which provides additional information about records maintained on individuals. The regulations in this part apply to all records contained within systems of records maintained by the Commission that are retrieved by an individual's name or personal identifier. They describe the procedures by which individuals may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those records by the Commission. The Commission shall also process all Privacy Act requests for access to records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Commission's FOIA regulations contained in 25 CFR part 517, which gives requesters maximum disclosure.
For the purposes of this subpart:
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(e)
(1) The identity of the individual who is the subject of the record by stating the name, current address, date and place of birth, and, at the requester's option, the social security number of the individual;
(2) The requester's own identity, as required in paragraph (d) of this section;
(3) That the requester is the parent or guardian of the individual and proof of such relationship by providing a birth certificate showing parentage or a court order establishing guardianship; and
(4) That the requester is acting on behalf of that individual in making the request.
(f)
(g)
(a)
(b)
(c)
(1) Respond to the request regarding that record, after consulting with the agency best able to determine whether to disclose it and with any other agency that has a substantial interest in it; or
(2) Refer the responsibility for responding to the request regarding that record to the agency best able to determine whether to disclose it, or to another agency that originated the record. Ordinarily, the agency that originated a record will be presumed to be best able to determine whether to disclose it.
(d)
(a)
(b)
(c)
(1) The name and title of the person responsible for the denial;
(2) A brief statement of the reason(s) for the denial, including any Privacy Act exemption(s) applied to the denial;
(3) A statement that the denial may be appealed under § 515.7 and a description of the requirements of § 515.7.
(a)
(b)
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of this section.
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(a)
(b)
(1) Disclosures for which accountings are not required to be kept, such as those that are made to employees of the Commission who have a need for the record in the performance of their duties and disclosures that are made under section 552 of title 5;
(2) Disclosures made to law enforcement agencies for authorized law enforcement activities in response to written requests from those law enforcement agencies specifying the law enforcement activities for which the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that have been exempted from accounting requirements.
(c)
(d)
(a)
(b)
The Commission shall charge fees for duplication of records under the Privacy Act in the same way in which it charges duplication fees under § 517.9. No search or review fee may be charged for any record. Additionally, when the Privacy Act Office makes a copy of a record as a necessary part of reviewing the record or granting access to the record, the Commission shall not charge for the cost of making that copy. Otherwise, the Commission may charge a fee sufficient to cover the cost of duplicating a copy.
Any person who makes a false statement in connection with any request for access to a record, or an amendment thereto, under this part, is subject to the penalties prescribed in 18 U.S.C. 494 and 495.
(a) The following systems of records are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1) and (f):
(1) Indian Gaming Individuals Records System.
(2) Management Contract Individuals Record System.
(b) The exemptions under paragraph (a) of this section apply only to the extent that information in these systems is subject to exemption under 5 U.S.C. 552a(k)(2). When compliance would not appear to interfere with or adversely affect the overall responsibilities of the Commission, with respect to licensing of key employees and primary management officials for employment in an Indian gaming operation, the applicable exemption may be waived by the Commission.
(c) Exemptions from the particular sections are justified for the following reasons:
(1) From 5 U.S.C. 552a(c)(3), because making available the accounting of disclosures to an individual who is the subject of a record could reveal investigative interest. This would permit the individual to take measures to destroy evidence, intimidate potential witnesses, or flee the area to avoid the investigation.
(2) From 5 U.S.C. 552a(d), (e)(1), and (f) concerning individual access to records, when such access could compromise classified information related to national security, interfere with a pending investigation or internal inquiry, constitute an unwarranted invasion of privacy, reveal a sensitive investigative technique, or pose a potential threat to the Commission or its employees or to law enforcement personnel. Additionally, access could reveal the identity of a source who provided information under an express promise of confidentiality.
(3) From 5 U.S.C. 552a(d)(2), because to require the Commission to amend information thought to be incorrect, irrelevant, or untimely, because of the nature of the information collected and the length of time it is maintained, would create an impossible administrative and investigative burden by continually forcing the Commission to resolve questions of accuracy, relevance, timeliness, and completeness.
(4) From 5 U.S.C. 552a(e)(1) because:
(i) It is not always possible to determine relevance or necessity of specific information in the early stages of an investigation.
(ii) Relevance and necessity are matters of judgment and timing in that what appears relevant and necessary when collected may be deemed unnecessary later. Only after information is assessed can its relevance and necessity be established.
(iii) In any investigation the Commission may receive information concerning violations of law under the jurisdiction of another agency. In the interest of effective law enforcement and under 25 U.S.C. 2716(b), the information could be relevant to an investigation by the Commission.
(iv) In the interviewing of individuals or obtaining evidence in other ways during an investigation, the Commission could obtain information that may or may not appear relevant at any given time; however, the information could be relevant to another investigation by the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve the state implementation plan (SIP) revision submitted by the Commonwealth of Virginia (Virginia) for the purpose of removing a consent agreement and order (consent order) previously included in the Virginia SIP to address reasonably available control technology (RACT) requirements for volatile organic compounds (VOCs) control at Reynolds Consumer Product LLC (Reynolds) plant and include a state operating permit for the Reynolds plant in the SIP to continue to address RACT requirements. In the Final Rules section of this
Comments must be received in writing by September 26, 2016.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0233 at
Gregory Becoat, (215) 814-2036, 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
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
90-Day petition finding, request for information.
We, NMFS, announce a 90-day finding on a petition to list the chambered nautilus (
Information and comments on the subject action must be received by October 25, 2016.
You may submit comments, information, or data on this document, identified by the code NOAA-NMFS-2016-0098, by either of the following methods:
•
•
Copies of the petition and related materials are available on our Web site at
Maggie Miller, Office of Protected Resources, 301-427-8403.
On May 31, 2016, we received a petition from the Center for Biological Diversity to list the chambered nautilus (
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). Because the chambered nautilus is an invertebrate, the DPS option does not apply. Under the ESA, a species or subspecies is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, or “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA
ESA-implementing regulations issued jointly by NMFS and the U.S. Fish and Wildlife Service (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
At the 90-day finding stage, we evaluate the petitioners' request based upon the information in the petition including its references considered together with the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone precludes a positive 90-day finding if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species (
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union for Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (
The petition notes that the taxonomy of the nautiloids is controversial. Based on the Integrated Taxonomic Information System, which has a disclaimer that it “is based on the latest scientific consensus available . . . [but] is not a legal authority for statutory or regulatory purposes,” there are presently five recognized species within the genus
The chambered nautilus is found in tropical, coastal reef, deep-water habitats of the Indo-Pacific. Its known range includes waters off American Samoa, Australia, Fiji, India, Indonesia, Malaysia, New Caledonia, Papua New Guinea, Philippines, Solomon Islands, and Vanuatu, and it may also potentially occur in waters off China, Myanmar, Western Samoa, Thailand, and Vietnam (Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 2016). Within its range, the chambered nautilus has a patchy distribution and is unpredictable in its area of occupancy. Based on multiple research studies, the presence of suitable habitat on coral reefs does not necessarily indicate the likelihood of chambered nautilus occurrence (CITES 2016). Additionally, the chambered nautilus is limited in its horizontal and vertical distribution throughout its range due to physiological constraints. Physiologically, the chambered nautilus cannot tolerate temperatures above approximately 25 °C or depths exceeding around 750-800 meters (m) (Ward
Chambered nautiluses are described as deep-sea scavenging generalists and opportunistic predators. They have up to 90 retractable appendages, or tentacles, that they use to dig in the substrate and feed on a variety of organisms, including fish, crustaceans, echinoids, nematodes, cephalopods, other marine invertebrates, and detrital matter (Saunders and Ward 2010). The chambered nautilus also has an acute sense of olfaction and can easily smell odors (such as prey) from significant distances (Basil
The general life history characteristics of the chambered nautilus are that of a rare, long-lived, late-maturing, and slow-growing marine invertebrate species, with likely low reproductive output. Circumferential growth rate for the chambered nautilus has been estimated to range from 0.053 mm/day to 0.23 mm/day, with growth rates slowing as the animal approaches maturity (Dunstan
Chambered nautilus longevity is at least 20 years, with age to maturity between 10 and 17 years (Dunstan
Overall, given the life history traits and physiological habitat constraints of
The petition contains information on the chambered nautilus, including its taxonomy, morphological characteristics, geographic distribution, habitat, population abundance and trends, and factors contributing to the species' decline. According to the petition, all five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of the chambered nautilus: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors.
In the following sections, we summarize and evaluate the information presented in the petition, which we consider together with information readily available in our files on the status of
The global abundance of the chambered nautilus is unknown, with no available historical baseline population data. In fact, the first study to estimate baseline population size and density for the species, in a given area, was only recently conducted by Dunstan
In terms of current trends in abundance, populations are considered to be stable in areas where fisheries are absent (
Overall, given the species' natural rarity throughout its range, its presence as small, sparsely distributed, and highly fragmented populations, and its low fecundity and limited dispersal capability, with geographic barriers to movement and strict habitat requirements, we find that even a small number of mortalities could potentially have significant negative population-level effects that may lead to regional extirpations (as may have already occurred in Tañon Strait) and potentially extinction. As such, we find that these current demographic risks could increase the species' vulnerability to present and future threats to the point where the species may be at a risk of extinction and thus warrant further investigation.
While the petition presents information on each of the ESA section 4(a)(1) factors, we find that the information presented in the petition, together with information readily available within our files, regarding the overutilization of the chambered nautilus for commercial purposes is substantial enough to make a determination that a reasonable person would conclude that this species may warrant listing as endangered or threatened based on this factor alone. As such, we focus our discussion below on the evidence of overutilization for commercial purposes, with comments on the inadequacy of existing regulatory mechanisms to control the exploitation of chambered nautiluses, and present our evaluation of the information regarding these factors and their impact on the extinction risk of the species. However, we note that in the status review for this species, we will evaluate all ESA section 4(a)(1) factors to determine whether any one or a combination of these factors are causing declines in the species or likely to substantially negatively affect the species within the foreseeable future to such a point that the chambered nautilus is at risk of extinction or likely to become so in the foreseeable future.
Information presented in the petition and readily available in our files suggests that the primary threat to the chambered nautilus is overutilization for commercial purposes—mainly, harvest for the international nautilus shell trade. Chambered nautilus shells, which have a distinctive coiled interior, are traded as souvenirs to tourists and shell collectors and also used in jewelry and home décor items (where either the whole shell is sold as a decorative object or parts are used to create shell-inlay designs) (CITES 2016). The trade in the species is largely driven by the international demand for their shells and shell products since fishing for nautiluses has been found to have no cultural or historical relevance (Dunstan
Although most of the trade in chambered nautiluses originates from the range countries where fisheries exist or have existed for the species, particularly the Philippines and Indonesia, commodities also come from those areas with no known fisheries (such as Fiji and Solomon Islands). Other countries of origin for
Because harvest of the chambered nautilus is primarily demand-driven for the international shell trade, with no historical or cultural importance, the
As mentioned previously, significant declines of
This level of harvest (5,000 chambered nautilus individuals/year), which, based on the information from the Tañon Strait, appears to lead to local extirpations, is being greatly exceeded in a number of other areas throughout the chambered nautilus' range. In Tibiao, Antique province, in northwestern Panay Island, Philippines, del Norte-Campos (2005) estimated annual yield of the chambered nautilus to be around 12,200 individuals for the entire fishery (based on data from 2001-2002). Based on personal communication provided in CITES (2016), in the Palawan, Philippines nautilus fishery, 9,091 nautiluses were harvested in 2013 and 37,341 in 2014. This level of harvest is particularly concerning given the significant declines already observed in the Palawan nautilus fisheries. In four of the five main nautilus fishing areas in this province, Dunstan
Overutilization of the chambered nautilus populations off Indonesia may also be a threat contributing to the species' risk of extinction that is cause for concern. Despite Indonesia's current prohibition (implemented in 1999) on the harvest and trade of the species, both domestic and internationally, it is apparent that both are still occurring throughout Indonesia (Nijman
Active nautilus fisheries also existed and still exist throughout most of the remaining extent of the species' known range, including in India, New Caledonia, Vanuatu, and potentially Papua New Guinea. In India, CITES (2016) states that the chambered nautilus has been exploited for decades. A 2007 survey found the species was being sold in 20 percent of the major coastal tourist markets in southern India, despite the species being protected from capture and trade by domestic law since 2000 (CITES 2016). In New Caledonia, intensive nautilus fisheries reportedly existed in the past. It is unclear whether commercial fisheries still exist today for the species; however, based on data from 2008,
We note that, while the species is afforded some protection in the southern portion of its range, particularly in waters off Australia where there is no commercial harvest for the species (CITES 2016), it is unclear whether these populations may be enough to protect the species from potential extinction throughout all or a significant portion of its range. This conclusion is based on the considerations described above, including the significant uncertainties associated with the species' life history and its high demographic risks, as supported by information presented in the petition together with information readily available in our files. The potential contribution of these populations to the species will be investigated further during the status review of the species.
Although the petition identifies numerous other threats to the chambered nautilus, including habitat degradation, predation, climate change, and ocean acidification, we find that the information presented in the petition, together with information readily available in our files, suggest that overutilization of the species for commercial purposes, in and of itself, may be a threat impacting the chambered nautilus to such a degree that raises concern that this species may be at risk of extinction presently or in the foreseeable future. Due to the apparent lack of enforcement and the inadequacy of existing regulatory mechanisms, particularly throughout the northern portion of the species' range, the ongoing demand for the species in the international shell trade, the significant demographic risks faced by the species (including extremely low productivity and rare, fragmented, and isolated populations with limited dispersal capability) and the evidence of substantial declines in populations and potential extirpations, we find that present harvest levels and associated mortality may be placing the species at such a risk of extinction that would lead a reasonable person to conclude that
After reviewing the information presented in the petition, and considering information readily available in our files, and based on the above analysis, we conclude the petition presents substantial scientific information indicating that the petitioned action of listing the chambered nautilus as a threatened or endangered species may be warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(3)), we will commence a status review of this species.
During the status review, we will determine whether the chambered nautilus is in danger of extinction (endangered) or likely to become so (threatened) throughout all or a significant portion of its range. We now initiate this review, and thus,
To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on whether the chambered nautilus is endangered or threatened. Specifically, we are soliciting information in the following areas: (1) Historical and current distribution and abundance of this species throughout its range; (2) historical and current population trends; (3) life history in marine environments; (4) historical and current data on nautilus catch and bycatch in industrial, commercial, artisanal, and recreational fisheries worldwide; (5) impacts to known chambered nautilus habitats; (5) data on the trade of chambered nautilus products, including shells, meat, and live specimens; (6) impacts of the ecotourism industry on chambered nautilus behavior and survival; (7) predation rates on chambered nautilus; (8) any current or planned activities that may adversely impact the chambered nautilus or its habitat; (9) ongoing or planned efforts to protect and restore this species and its habitat; (10) population structure information, such as genetics data; and (11) management, regulatory, and enforcement information. We request that all information be accompanied by: (1) Supporting documentation such as
A complete list of references is available upon request to the Office of Protected Resources (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 26, 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.
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 required regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 26, 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
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.
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to renew the approved information collection regarding the voluntary cooperative interstate shipment program. The approval for this information collection will expire on January 31, 2017.
Submit comments on or before October 25, 2016.
FSIS invites interested persons to submit comments on this information collection. Comments may be submitted by one of the following methods:
•
Go to
•
•
Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW., Room 6065, South Building, Washington, DC 20250; (202)720-5627.
FSIS administers a voluntary cooperative inspection program under which State-inspected establishments with 25 or fewer employees are eligible to ship meat and poultry products in interstate commerce (21 U.S.C. 683 and U.S.C. 472) (9 CFR 321.3, Part 332, 381.187, and Part 381 Subpart Z). In participating States, State-inspected establishments selected to take part in this program are required to comply with all Federal standards under the FMIA and the PPIA, as well as with all State standards. These establishments receive inspection services from State inspection personnel that have been trained in the enforcement of the FMIA and PPIA.
Meat and poultry products produced under the program that have been inspected and passed by designated State personnel bear an official Federal mark of inspection and are permitted to be distributed in interstate commerce. FSIS provides oversight and enforcement of the program.
States that are interested in participating in the cooperative interstate shipment program need to submit a request for an agreement to establish such a program through the appropriate FSIS District Office (9 CFR 332.4 and 381.514). In its request, a State must agree to comply with certain conditions in order to qualify for the interstate shipment program. The State must also: (1) Identify establishments in the State that the State recommends for
If a State determines that an establishment qualifies to participate in the cooperative interstate shipment program, and the State is able, and willing, to provide the necessary inspection services at the establishment, the State is to submit its evaluation of the establishment to the FSIS District Office that covers the State (74 FR 24729).
FSIS, in coordination with the State, will then decide whether to select the establishments for the program.
Establishments that qualify for this program have to meet all requirements under the FMIA or PPIA, and implementing regulations, including FSIS requirements for recordkeeping (9 CFR 332.5 and 381.515). Most State-inspected establishments will already have met these recordkeeping requirements, but some establishments will need to make minor adjustments to their recordkeeping in order to meet FSIS requirements.
The FSIS selected establishment coordinator (SEC) is responsible for overseeing a State's cooperative inspection program. The SEC will visit each selected establishment in the State on a regular basis to verify that the establishment is operating in a manner that is consistent with the FMIA or PPIA and the implementing regulations (9 CFR 332.7 and 381.517).
The approval for this information collection will expire on January 31, 2017. There are no changes to the existing information collection. FSIS has made the following estimates on the basis of an information collection assessment.
FSIS estimates that it will take each State 24 hours to prepare and submit an evaluation for each new establishment entering the program. FSIS estimates that States will submit approximately 3 evaluations per year.
FSIS estimates that 15 establishments per year will spend 16 hours to modify their recordkeeping procedures to comply with Federal standards and 5 minutes per establishment to file these records.
FSIS estimates that it will take each new establishment 15 minutes to assist the SEC in locating locate the necessary records for review on the initial visit. Every selected establishment will spend 10 minutes assisting the SEC review of its records approximately once a month.
Estimated No. of Annual Responses per Respondent: FSIS estimates there will be one request per each new State to establish a cooperative interstate shipment program and approximately 3 evaluations of State-inspected establishments per State. There will be a one-time modification of records for each newly selected establishment whose recordkeeping does not comply with all Federal standards.
There will be one initial SEC visit in which each newly selected establishment will need to provide the SEC with access to all required records. Each establishment selected for the program will need to provide the FSIS access to its records on an ongoing basis. The total number of estimated annual responses is 830.
Copies of this information collection assessment can be obtained from Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Ave. SW., 6065, South Building, Washington, DC 20250; (202)720-5627.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology.
Comments may be sent to both FSIS, at the addresses provided above, and the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20253.
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Foreign Agricultural Service, USDA.
Notice.
This notice announces the revised appendices for Dairy Tariff-Rate Import Quota Licensing for the 2016 quota year reflecting the cumulative annual transfers from Appendix 1 to Appendix 2 for certain dairy product import licenses permanently surrendered by licensees or revoked by the Licensing Authority.
Effective August 26, 2016.
Abdelsalam El-Farra, Dairy Import Licensing Program, Import Policies and Export Reporting Division, U.S. Department of Agriculture, at (202) 720-9439; or by email at:
The Foreign Agricultural Service, under a delegation of authority from the Secretary of Agriculture, administers the Dairy Tariff-Rate Import Quota Licensing Regulation codified at 7 CFR 6.20-6.36 that provides for the issuance of licenses to import certain dairy articles under tariff-rate quotas (TRQs) as set forth in the Harmonized Tariff Schedule of the United States. These dairy articles may only be entered into the United States at the low-tier tariff by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The Import Policies and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, issues these licenses and, in conjunction with U.S. Customs and Border Protection, U.S. Department of Homeland Security, monitors their use.
The regulation at 7 CFR 6.34(a) states: “Whenever a historical license (Appendix 1) is not issued to an applicant pursuant to the provisions of § 6.23, is permanently surrendered or is revoked by the Licensing Authority, the amount of such license will be transferred to Appendix 2.” Section 6.34(b) provides that the cumulative annual transfers will be published in the
Willamette National Forest, USDA Forest Service
Notice of New Fee Site.
The Willamette National Forest is proposing recreation fees at six recreation sites. The Willamette National Forest proposes a $5/day fee for the use of facilities at three day use sites: Hackleman Old Growth Grove, Hardesty Trailhead, and McCredie Picnic Area. Two campgrounds have proposed fees: Alder Springs Campground at $10/night and Indigo Springs Campground at $12/night. For overnight use of a backcountry shelter, the Willamette National Forest proposes a nightly fee of $80 during the summer season and a per person fee of $7/night during the winter season. Funds from recreation fees will be used for the continued operation and maintenance of these sites and associated trails. These fees are only proposed and will be determined upon further analysis and public comment.
Send any comments about these fee proposals by December 1, 2016 so comments can be compiled, analyzed and shared with a Recreation Resource Advisory Committee. Fees may be implemented May, 2017.
Tracy Beck, Forest Supervisor, Willamette National Forest, 3106 Pierce Parkway, Suite D, Springfield, OR, 97477
Matt Peterson, Recreation Program Manager, 541-225-6421 or email
The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the
This new fee proposal will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation.
Mountain View Shelter will be available for overnight rental. The proposed fee differs by season: a nightly fee of $80.00 during the summer season and a per person fee of $7.00/night during the winter season. Backcountry shelter rentals offer a unique experience and are a popular offering on National Forests. The shelter is not currently available for use during the spring, summer and fall season. In winter, the shelter is currently first come-first served yet often fills to capacity, causing visitors to ski or trek back to their vehicles. Reservations would enable visitors to plan ahead and know whether they will have a space in the shelter. The cabin offers views and a place for Nordic skiers to stay overnight or warm up during the day. Activities nearby include winter skiing, hiking and hunting. Access to the site in the winter is only by skis and by vehicle during the rest of the year. Fees will be used to maintain and operate the shelter.
Indigo Springs Campground is currently a free site, with three campsites. Each campsite has a fire ring, picnic table, with garbage service and a vault restroom on-site. This campground is surrounded by a stand of old growth Douglas-fir and is close to the Middle Fork Trail. The springs for which the camp was named is nearby and can be enjoyed by walking an easy, 500 foot round-trip loop trail. Interpretive signs explain the role of the nearby historic Oregon Central Military Wagon Road and the role of the bull trout in the regional watershed ecosystem. The proposed fee is $12.00/night a campsite, and $6.00 per each additional vehicle per campsite.
Alder Springs Campground is currently a free site, with six campsites. The campground is co-located with the Linton Lake Trailhead, which has an existing $5/day recreation fee. Campers currently use many of the same amenities as day users plus have the added benefit of their campsite, yet do this for free. The proposed fee addresses this inequity and is $10.00 for overnight camping, with a $5.00/night extra vehicle fee. This small, rustic campground is surrounded by towering Douglas fir trees. It is located on historic McKenzie Pass Highway (Hwy 242) about 90 minutes east of Eugene and provides easy access into the Three Sisters Wilderness.
The Hardesty Trailhead is located on Highway 58, about 30 miles southeast of the Eugene/Springfield metropolitan area. It was redeveloped in 2014, adding a vault restroom, picnic tables, hitching posts, and interpretation. It is a low elevation trailhead, providing year-round access to the Hardesty Trail and the South Willamette Trail, which provide access to the Goodman Creek and Eula Ridge trails. These trails are very popular with hikers, mountain bikers, and equestrians.
McCredie Picnic Area is located on Highway 58, about 10 miles east of the Oakridge, OR. It was redeveloped in 2014, adding a vault restroom, picnic tables, and interpretation. With picnic areas in view of the Salt Creek and trails to the water's edge, the easily accessible site provides a pleasant stopping point for travelers along Highway 58.
Hackleman Old Growth Grove, located along Highway 20 about 39 miles east of Sweet Home, OR, has on-site interpretation, picnic tables, restrooms, and a fully accessible trail that travels through an old-growth grove of Douglas Fir trees.
The proposed fee for Hardesty Trailhead, McCredie Picnic Area, and Hackleman Old Growth Grove is $5/day. Recreation passes, such as the Northwest Forest Pass, would also be accepted. Fees would help maintain and operate these sites, including adding garbage service.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Inyo, Plumas, and Stanislaus National Forests intend to prepare and Environmental Impact Statement (EIS) to evaluate a proposed land exchange pursuant to section 206 of FLPMA, 43 U.S.C. 1716, and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues. The proposed exchange includes the conveyance of approximately 1,317.5 acres of a non-Federal land owned by Mammoth Main Lodge Redevelopment LLC (MMLR) to the United States in exchange for 30.6 acres of Federal land in the Inyo National Forest. The non-Federal parcels are located in Mono, Inyo, Plumas and Tuolumne Counties. The Federal parcels are located in Mono County.
Comments concerning the scope of the analysis must be received 45 days from date of publication in the
Send written comments to: Edward Armenta, Forest Supervisor, c/o Janelle Walker, Winter Sports Specialist, Inyo National Forest, PO Box 148, Mammoth Lakes, CA 93546, FAX; (760) 924-5537 or by email to:
Additional information related to the proposed project can be obtained from the project Web site,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
(1) To acquire environmentally sensitive lands and an administrative site to better meet resource and other management goals of the National Forests as outlined in the respective Land and Resource Management Plans of the National Forests involved in this exchange; and
(2) To exchange developed lands in the National Forest that encumber adequate management by the United States Forest Service and would better serve the community and economic needs of the Town of Mammoth Lakes and Mono County in private ownership.
The Proposed Action is to complete a land exchange pursuant to section 206 of FLPMA, 43 U.S.C. 1716. Under the Proposed Action, the United States would convey approximately 30.6 acres of NFS lands within the boundaries of the Inyo National Forest, and currently managed as part of a Ski Area Term Special Use Permit to MMLR. In exchange, MMLR would convey to the United States approximately 1,317.5 acres of privately owned lands (“inholdings”) located within the boundaries of the Inyo, Plumas and Stanislaus National Forests and one small parcel (approximately 1.66 acres) in Inyo County, California that is outside the boundaries of the Inyo National Forest.
Under the Proposed Action, two Federal parcels located within the municipal boundary limits of the Town of Mammoth Lakes—totaling approximately 30.6 acres—would be transferred to MMLR. The Federal parcels include an intensely developed tract containing structures that provide lodging and visitor services facilities at the main base area for the Mammoth Mountain Ski Area, and an adjacent tract containing sewage ponds that receive and treat sewage from various Mammoth Mountain Ski Area facilities. The Federal parcels are located adjacent to California State Highway 203, approximately four miles west of the town center of Mammoth Lakes.
Under the Proposed Action, 12 non-Federal parcels—totaling approximately 1,317.5 acres—would be transferred to the United States, to be managed by the United States Forest Service.
Six of the non-Federal parcels are located inside the boundaries of the Inyo National Forest. These parcels include the West Mono Lake Parcel (located inside the boundaries of the Congressionally designated Mono Basin National Forest Scenic Area near the west shore of Mono Lake), the Lundy Canyon Parcel (patented mining claims located in or adjacent to the Hoover Wilderness northwest of Mono Lake), the Moran Springs Parcel (located in the Benton Range), Dexter Canyon Parcel (a large inholding southeast of Mono Lake), Madden Parcel (adjacent to Lake Mary Road in the Town of Mammoth Lakes), and the Pine Creek Parcel (located at the trailhead of the Pine Canyon Trail).
The non-Federal parcel located outside the boundaries of the Inyo National Forest is located in Inyo County. The Los Angeles Department of Water and Power (DWP)-Bishop Parcel is located in the City of Bishop, California, adjacent to the White Mountain Ranger District Office of the Inyo National Forest.
One of the non-Federal parcels (Taylor Lake Parcel) is located inside the boundaries of the Plumas National Forest at Taylor Lake east of Greenville, California.
Four of the non-Federal parcels are located inside the boundaries of the Stanislaus National Forest in the Clavey River watershed near Yosemite National Park.
Additional information and maps of this proposal can be found on the project Web site:
The Responsible Official is Edward Armenta, Forest Supervisor for the Inyo National Forest.
The decision to be made is whether to authorize the Proposed Action as described above, modify the Proposed Action to address issues raised in public scoping, or to take no action at this time.
Forest Service Special Use Permit
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The Forest Service is soliciting comments from Federal, State and local agencies and other individuals or organizations that may be interested in or affected by implementation of the proposed projects. A public meeting will be held on September 8, 2016 to share information and answer questions about the project. The meeting will be held in the town of Mammoth Lakes at the Council Chambers (Suite Z—437 Old Mammoth Road) from 6 p.m. to 8 p.m.
This project will be subject to 36 CFR 254.8 Notice of Exchange Proposal. Individuals and entities who have submitted timely, specific written comments regarding a proposed project or activity during public comment periods, including this 45-day public scoping period, may file an objection (36 CFR 218.5(a)). Written comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection (36 CFR 218.25(b)(2)). For purposes of meeting the 36 CFR 218.5 eligibility requirements, the public scoping period will end 45 days from the date the Notice of Exchange Proposal is published in the
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however those who only submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR 215.
Forest Service, USDA.
Notice of intent to prepare a supplement to a final environmental impact statement.
Notice is hereby given that the USDA, Forest Service will prepare a Supplemental Environmental Impact Statement (SEIS) to update and correct the Pack and Saddle Stock Outfitter-Guide Special Use Permit Issuance Final Environmental Impact Statement (FEIS). The Notice of Availability for the FEIS was published on March 8, 2013 (FR Vol. 78, No. 46, 15011). The Record of Decision for the FEIS was withdrawn in June 2013, after appeals were filed, and Regional Office review found portions of the analysis needed correction. The Supplemental Environmental Impact Statement will evaluate a modification of FEIS Alternative 4 and make other corrections to provide pack stock outfitter and guide services on the Methow Valley, Chelan and Tonasket Ranger Districts of the Okanogan-Wenatchee National Forest.
The draft supplemental environmental impact statement is expected in October 2016 and the final supplemental environmental impact statement is expected February 2017.
Jennifer Zbyszewski, Project Team Leader, Methow Valley Ranger District, Okanogan-Wenatchee National Forest, (509) 996-4021,
Scoping is not required for supplements to environmental impact statements [40 CFR 1502.9(c)(4)] and will not be conducted because of the limited nature of the additional analysis needed.
The SEIS will be modified based on a new 2016 Needs Assessment and Extent Necessary Determination; the 2012 Needs Assessment was revised to more accurately calculate the extent of
The Responsible Official is Michael R. Williams, Forest Supervisor, Okanogan-Wenatchee National Forest, 215 Melody Lane, Wenatchee, WA 98801.
The Responsible Official will decide whether or not to issue term permits to the outfitters described in the proposed action presented in the FEIS and SEIS based on one or a combination of alternatives in the FEIS and/or SEIS. He will also decide what, if any, mitigation measures and monitoring are needed. The criteria that will be used to select among the alternatives are: (1) To what extent each alternative responds to applications for special use permits in a manner that provides stability to outfitter-guide businesses to allow financial commitments necessary to continue to provide public service; (2) the extent to which each alternative meets the minimum extent necessary for commercial services in Wilderness, to provide for wilderness appropriate activiteis, and protect wilderness character while providing pack and saddle stock outfitter-guide commercial services in the Pasayten and Lake Chelan-Sawtooth Wilderness areas; (3) the extent to which each alternative adesignates an amount of campsite barren core in wilderness used by the pack and saddle stock outfitter-guide that is compatible with party size, and (4) the effects of each alternative on the environment, particularly those aspects of the environment identified as Significant Issues.
In the final SEIS, the Forest Service is required to respond to comments and responses received during the comment period that pertain to the environmental consequences discussed in the draft SEIS and applicable laws, regulations, and policies considered in making a decision regarding the proposal. The Forest Supervisor for the Okanogan-Wenatchee National Forest will be the Federal responsible official for this SEIS. The new Record of Decision will be based on both the FEIS and SEIS, and the Forest Supervisor's decision will be subject to objection pursuant to 36 CFR 218.
Architectural and Transportation Barriers Compliance Board.
Notice of meetings.
The Architectural and Transportation Barriers Compliance Board (Access Board) plans to hold its regular committee and Board meetings in Washington, DC, Monday through Wednesday, September 12—14, 2016 at the times and location listed below.
The schedule of events is as follows:
Meetings will be held at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004.
For further information regarding the meetings, please contact David Capozzi, Executive Director, (202) 272-0010 (voice); (202) 272-0054 (TTY).
At the Board meeting scheduled on the afternoon of Wednesday, September 14, 2016, the Access Board will consider the following agenda items:
• Approval of the draft July 13, 2016 meeting minutes (vote)
• Ad Hoc Committee Reports: Design Guidance; Frontier Issues; Medical Diagnostic Equipment (vote) and Information and Communication Technology
• Technical Programs Committee
• Budget Committee
• Planning and Evaluation Committee
• Election Assistance Commission Report
• Executive Director's Report
• Public Comment (final 15 minutes of the meeting)
Members of the public can provide comments either in-person or over the telephone during the final 15 minutes of the Board meeting on Wednesday, September14, 2016. Any individual interested in providing comment is asked to pre-register by sending an email to
All meetings are accessible to persons with disabilities. An assistive listening system, Communication Access Realtime Translation (CART), and sign language interpreters will be available at the Board meeting and committee meetings. Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and services from the Procurement List previously furnished by such agencies.
Effective on September 25, 2016.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 6/10/2016 (81 FR 37581-37582) and 7/1/2016 (81 FR 43191) the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and service and impact of the additions on the current or most recent contractors, the Committee has determined that the products and service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.
2. The action will result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and service proposed for addition to the Procurement List.
Accordingly, the following products and service are added to the Procurement List:
On 7/15/2016 (81 FR 46061-46062) and 7/22/2016 (81 FR 47777-47778), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add products to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes service previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following products are proposed for addition to the Procurement List for
The following products and services are proposed for deletion from the Procurement List:
The Commission is publishing a correction to its Notice published in the
Department of the Army, DoD.
Notice.
In accordance with 35 U.S.C. 209(e) and 37 CFR 404.7 (a)(1)(i), announcement is made of the intent to grant an exclusive, royalty-bearing, revocable license to U.S. Patent 9,193,739, issued November 24, 2015, entitled, “Induction of highly specific antibodies to a hapten but not to a carrier peptide by immunization” and an exclusive within a field of use, royalty-bearing, revocable license to Patent Cooperation Treaty application PCT/US/2014/045940, filed July 9, 2014, entitled, “Methods for Enhancing the Immunostimulation Potency of Aluminum Salt-adsorbed Vaccines” to Opiant Pharmaceuticals, Inc., having its principal place of business at 401 Wilshire Blvd., 12th Floor, Santa Monica, CA 90401.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, MD 21702-5012.
For licensing issues, Mr. Barry Datlof, Office of Research & Technology Assessment, (301) 619-0033. For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808, both at telefax (301) 619-5034.
Anyone wishing to object to grant of this license can file written objections along with supporting evidence, if any, within 15 days from the date of this publication. Written objections are to be filed with the Command Judge Advocate (see
Department of the Army, DoD.
Notice of open Subcommittee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the U.S. Army War College Board of Visitors, a subcommittee of the Army Education Advisory Committee. This meeting is open to the public.
The U.S. Army War College Board of Visitors Subcommittee will meet from 8:15 a.m. to 1:45 p.m. on October 14, 2016.
U.S. Army War College, 122 Forbes Avenue, Carlisle, PA, Command Conference Room, Root Hall, Carlisle Barracks, PA 17013.
Dr. G.K. Cunningham, the Alternate Designated Federal Officer for the subcommittee, in writing at Office of the Provost, 122 Forbes Ave., Carlisle, PA 17013, by email at
The subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of
Because the meeting of the subcommittee will be held in a Federal Government facility on a military base, security screening is required. A photo ID is required to enter base. Please note that security and gate guards have the right to inspect vehicles and persons seeing to enter and exit the installation. Root Hall is fully handicap accessible. Wheelchair access is available in front at the main entrance of the building. For additional information about public access procedures, contact Dr. G.K Cunningham, the subcommittee's Alternate Designated Federal Officer, at the email address or telephone number listed in the
Pursuant to 41 CFR 102-3.140d, the Committee is not obligated to allow a member of the public to speak or otherwise address the Committee during the meeting. Members of the public will be permitted to make verbal comments during the Committee meeting only at the time and in the manner described below. If a member of the public is interested in making a verbal comment at the open meeting, that individual must submit a request, with a brief statement of the subject matter to be addressed by the comment, at least seven business days in advance to the subcommittee's Alternate Designated Federal Official, via electronic mail, the preferred mode of submission, at the address listed in the
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning anti-kickback procedures. A notice was published in the
Submit comments on or before September 26, 2016.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for GSA, Room 10236, NEOB, Washington, DC 20503. Additionally submit a copy to GSA by any of the following methods:
•
•
Ms. Cecelia L. Davis, Procurement Analyst, Office of Governmentwide Acquisition Policy, GSA, 202-219-0202 or email
Federal Acquisition Regulation (FAR) 52.203-7, Anti-Kickback Procedures, requires that all contractors have in place and follow reasonable procedures designed to prevent and detect in its own operations and direct business relationships, violations of 41 U.S.C. chapter 87, Kickbacks. Whenever prime contractors or subcontractors have reasonable grounds to believe that a violation of the statute may have occurred, they are required to report the possible violation in writing to the contracting agency inspector general, the head of the contracting agency if an agency does not have an inspector general, or the Department of Justice. The information is used to determine if any violations of the statute have occurred.
There is no Governmentwide data collection process or system which identifies the number of alleged violations of 41 U.S.C. chapter 87, Kickbacks that are reported annually to agency inspectors general, the heads of the contracting agency if an agency does not have an inspector general, or the Department of Justice.
Department of the Navy, DoD.
Notice.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act of 1969, as implemented by the Council on Environmental Quality Regulations (40 Code of Federal Regulations parts 1500-1508), the Department of the Navy (DoN) announces its intent to prepare an Environmental Impact Statement (EIS) to assess the potential environmental consequences of maintaining and modernizing the Fallon Range Training Complex (FRTC) in Nevada, which would include land range expansion through additional land withdrawal and land acquisition, airspace modifications, and public land withdrawal renewal. The Navy's action proponent for this proposal is Commander, United States Pacific Fleet (PACFLT). The Bureau of Land Management, the Federal Aviation Administration, and the United States Fish and Wildlife Service will participate as cooperating agencies in the preparation of the EIS.
See
Naval Facilities Engineering Command Southwest; Attention: Amy P. Kelley, Code EV21.AK; 1220 Pacific Highway; Building 1, 5th Floor; San Diego, California 92132.
Since the initial operation of Naval Air Station Fallon in the 1940s and the formal establishment of the FRTC in 1977, the ranges and airspace of the FRTC have been extensively used by the DoN and other Services to conduct air warfare and ground training, including live-fire training activities. The FRTC is the DoN's premier integrated strike warfare training complex, supporting combat elements of PACFLT, United State (U.S.) Fleet Forces Command, U.S. Marine Corps, Naval Special Warfare Command, and others. It is located in the high desert of northern Nevada, 65 miles east of the city of Reno, Nevada, and is comprised of: Special Use Airspace (SUA), including restricted areas, Military Operations Areas (MOAs), and Air Traffic Control Assigned Airspace (ATCAAs); land training ranges; fixed and mobile land targets, and control facilities; threat electronic warfare, early warning radars, and surface-to-air missile systems; and instrumentation facilities.
The current FRTC bombing ranges (B-16, B-17, B-19, and B-20) have not changed substantially in size or configuration since the 1990s. However, warfare technology, to include dynamic improvements to stand-off weapons, platform sensors, threat systems, and strike tactics, and the accuracy of applications that produce and manage safety footprints for air-to-ground weapons training, have continued to evolve. In response to these changes, and to formalize FRTC training requirements, the Naval Aviation Warfighting Development Center (the DoN's primary authority on naval aviation training and tactics development), together with subject matter training experts from the Naval Special Warfare Command, conducted a training capabilities study. This study analyzed the capabilities that should be provided at the FRTC to meet evolving DoN training needs in air warfare, strike warfare, and Naval special warfare. It concluded that training capabilities currently available at the FRTC do not, and will not, meet the real-world training needs identified by Fleet and Unified Commanders. Therefore, to minimize the identified shortcomings and provide the responsive and realistic training capabilities needed to meet evolving aviation and ground training requirements, PACFLT proposes to maintain and modernize the capabilities of the FRTC, including its land ranges, airspace, and infrastructure. The proposed modernization would have the benefit of maintaining and enhancing the safety and security of local and regional populations and infrastructure.
PACFLT's proposed action includes the renewal of the existing 202,859-acre public land withdrawal that expires on November 6, 2021; the withdrawal and reservation for military use of approximately 604,744 acres of additional public land to expand existing land ranges; acquisition of approximately 65,160 acres of non-
The EIS will also assess the potential environmental effects of the no action alternative. Under the no action alternative, there would be no renewal of the existing land withdrawal, which expires on November 6, 2021, and there would be no range expansion, airspace changes, or modification of range infrastructure. As a result, the DoN would reassess the military mission of NAS Fallon and the FRTC.
In addition to the proposed action and the no action alternative, the EIS will also assess the potential environmental effects of other action alternatives. Public comments submitted during the scoping process will inform PACFLT's development of other action alternatives for analysis in the EIS.
Federal agencies, state agencies, local agencies, Native American Tribes and Nations, and interested persons are encouraged to provide comments to PACFLT to identify specific community interests, issues, or topics of environmental concern that PACFLT should consider in the EIS. Resource areas to be addressed in the EIS will include soils; air quality/climate; water quality; airborne noise; biological resources; land use and recreation; socioeconomics, environmental justice, and the protection of children; transportation; cultural resources; Native American traditional resources; and public health and safety.
The public scoping process starts with the publication of this Notice of Intent. Seven open house information sessions are scheduled to receive oral or written comments on issues to be addressed in the EIS:
1. Monday, October 3, 2016, 3:00 p.m. to 7:00 p.m., Fallon Convention Center, 100 Campus Way, Fallon, NV 89406.
2. Tuesday, October 4, 2016, 11:00 a.m. to 1:00 p.m., Pershing County Community Center, 820 6th Street, Lovelock, NV 89419.
3. Tuesday, October 4, 2016, 5:00 p.m. to 7:00 p.m., Evelyn Mount Northeast Community Center, 1301 Valley Road, Reno, NV 89512.
4. Wednesday, October 5, 2016, 5:00 p.m. to 7:00 p.m., Emma Nevada Town Hall, 135 Court Street, Austin, NV 89310.
5. Thursday, October 6, 2016, 5:00 p.m. to 7:00 p.m., Eureka Elementary School Multi-Purpose Room, 431 McCoy Street, Eureka, NV 89316.
6. Friday, October 7, 2016, 11:00 a.m. to 1:00 p.m., Hawthorne Convention Center, 950 E Street, Hawthorne, NV 89415.
7. Friday, October 7, 2016, 5:00 p.m. to 7:00 p.m., Gabbs School Gymnasium, 511 E Avenue, Gabbs, NV 89409.
Each of the seven information sessions will begin with a brief presentation about the project, followed by an open house with information stations staffed by PACFLT and DoN representatives. Additional information concerning each open house, as well as further project information, is available on the EIS Web page:
All comments, provided orally or in writing at the scoping meetings, or submitted via the project Web site or the U.S. Postal Service will be taken into consideration during EIS preparation. All comments must be postmarked or received online no later than November 25, 2016. Comments should be mailed to: Naval Facilities Engineering Command Southwest; Attention: Amy P. Kelley, Code EV21.AK; 1220 Pacific Highway; Building 1, 5th Floor; San Diego, California 92132.
Department of the Navy, DoD.
Notice.
Pursuant to the National Environmental Policy Act as implemented by the Council on Environmental Quality regulations (40 CFR parts 1500-1508) and Executive Order 12114, the United States Department of the Navy (Navy) has prepared and filed with the United States Environmental Protection Agency (USEPA) a Draft Supplemental Environmental Impact Statement/Supplemental Overseas Environmental Impact Statement (Draft SEIS/SOEIS) for employment of SURTASS LFA sonar.
The public comment period for the SURTASS LFA sonar Draft SEIS/SOEIS will be open for 45 days, from August 26 to October 11, 2016. The Final SEIS/SOEIS is expected to be completed by June 2017. Written comments on the SURTASS LFA sonar Draft SEIS/SOEIS may be submitted by mail to: SURTASS LFA sonar SEIS/SOEIS Program Manager, 4350 Fairfax Drive, Suite 600, Arlington, VA 22203-1632, or by Email:
SURTASS LFA sonar SEIS/SOEIS Program Manager, 4350 Fairfax Drive, Suite 600, Arlington, VA 22203-1632, Email:
In continuance of the Navy's commitment to responsible stewardship of the marine environment and building upon analyses and information included in the Navy's 2001 Final Overseas Environmental Impact Statement/Environmental Impact Statement (OEIS/EIS) published in the
The Navy proposes to continue employing up to four SURTASS LFA sonar systems onboard up to four Navy surveillance ships for routine training, testing, and military operations in the Pacific, Atlantic, and Indian oceans and the Mediterranean Sea, including certain geographic limitations on
The Draft SEIS/SOEIS was distributed to appropriate federal, state, and local agencies and organizations, Native Alaskan and Native Tribal governments and organizations, and other interested parties. The Draft SEIS/SOEIS is available for public viewing and downloading at the following project Web site:
1. Jacksonville Public Library, 303 N. Laura Street, Jacksonville, FL 32202;
2. Camden County Public Library, 1410 Hwy 40 E, Kingsland, GA 31548;
3. Ben May Main Library, 701 Government Street, Mobile, AL 36602;
4. Meridian-Lauderdale County Public Library, 2517 7th Street, Meridian, MS 39301;
5. New Orleans Public Library, 219 Loyola Avenue, New Orleans, LA 70112;
6. Houston Public Library, 500 McKinney Street, Houston, TX 77002;
7. New Hanover County Public Library, 201 Chestnut Street, Wilmington, NC 28401;
8. Anne Arundel County Public Library, 1410 West Street, Annapolis, MD 21401;
9. Charleston County Public Library, 68 Calhoun Street, Charleston, SC 29401;
10. Mary D. Pretlow Anchor Branch Library, 111 W. Ocean View Avenue, Norfolk, VA 23503;
11. Portland Public Library, 5 Monument Square, Portland, ME 04101;
12. Providence Public Library, 150 Empire Street, Providence, RI 02903;
13. Boston Public Library, 700 Boylston Street, Boston, MA 02116;
14. The Seattle Public Library, 1000 Fourth Avenue, Seattle, WA 98104;
15. Los Angeles Public Library, 630 W. 5th Street, Los Angeles, CA 90071;
16. San Francisco Public Library, 100 Larkin Street, San Francisco, CA 94102;
17. Oregon State University, 250 Winter Street NE., Salem, OR 97301;
18. Alaska Resources Library and Information Services, 3211 Providence Drive, Anchorage, AK 99508;
19. Hawaii State Library, 478 South King Street, Honolulu, HI 96813;
20. Nieves M. Flores Memorial Public Library, 254 Martyr Street, Hagåtña, Guam 96910; and
21. The Feleti Barstow Public Library, Pago Pago, American Samoa, 96799.
Written comments on the Draft SEIS/SOEIS can be submitted by mail: SURTASS LFA Sonar SEIS/SOEIS Program Manager, 4350 Fairfax Drive, Suite 600, Arlington, VA 22203-1632, or by Email:
U.S. Department of Energy.
Notice of intent.
The U.S. Department of Energy (DOE) announces its intention to prepare a Supplemental Environmental Impact Statement (SEIS) for its proposal to disposition depleted uranium oxide (DUO
The proposed scope of the draft SEIS includes an analysis of potential environmental impacts from activities associated with the transportation to and disposition of depleted uranium oxide at three proposed disposition location alternatives: the DOE-owned low-level radioactive waste disposal facility at the Nevada National Security Site (NNSS) in Nye County, Nevada; the Energy
Questions concerning the project or requests to be placed on the document distribution list can be sent to: Ms. Jaffet Ferrer-Torres, National Environmental Policy Act (NEPA) Document Manager, Office of Environmental Management, U.S. Department of Energy, EM-4.22, 1000 Independence Avenue SW., Washington, DC 20585; or to
For further information on DOE's DUF
For information on DOE's NEPA process, please contact Ms. Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0103; Telephone: (202) 586-4600, or leave a message at (800) 472-2756; or email at
The use of uranium as fuel for nuclear power plants or for military applications requires increasing the proportion of the uranium-235 isotope found in natural uranium. Industrial uranium enrichment in the United States began as part of atomic bomb development during World War II. Uranium enrichment for both civilian and military uses was continued by the U.S. Atomic Energy Commission and its successor agencies, including DOE. Uranium enrichment by gaseous diffusion was carried out at three locations: the Paducah Site in Kentucky, the Portsmouth Site in Ohio, and the East Tennessee Technology Park in Oak Ridge, Tennessee.
DUF
This SEIS represents the third phase of an environmental review process being used to evaluate and implement the DUF
In June 2004, DOE issued two EISs for construction and operation of DUF
In 2007, DOE prepared a draft Supplement Analysis (SA), in accordance with DOE NEPA implementing regulations at 10 CFR 1021.314, in order to determine whether there were substantial changes to the proposal or significant new circumstances or information relevant to environmental concerns that require preparation of a Supplemental EIS to decide disposition locations committed to in the 2004 RODs. DOE made the
In August 2014, the WCS facility near Andrews, Texas, was granted a license amendment by the Nuclear Regulatory Commission that would allow disposal of bulk uranium. As a result, DOE assumes, for purposes of planning, that WCS may be a new reasonable alternative as a disposal site for depleted uranium oxide conversion product. After due consideration of the existing DOE NEPA analyses summarized above, and any changes in the disposition activities currently being considered, DOE determined in March 2016 that a Supplemental EIS is warranted given that there are substantial changes to the proposal (in this case, a new alternative disposal site is under consideration), or potentially significant new circumstances or information relevant to environmental concerns given the time lapse since the 2004 EISs.
The purpose and need for this action is to dispose of DUO
The proposed scope of the draft SEIS includes an analysis of the potential impacts from three action alternatives and the No Action alternative (in accordance with 40 CFR 1502.14). Under the No Action alternative, transportation to and disposal of the conversion product at an offsite low-level waste disposal facility would not occur and refilled cylinders of DUO
The SEIS analysis will include a review of available environmental data and information; comparative analyses of potential environmental and human health and safety impacts of DUO
The SEIS will examine potential public health and safety effects and environmental impacts from the proposed action. This notice is intended to inform agencies and the public of DOE's proposal. Although the following is not intended to be all inclusive or to imply any predetermination of impacts, these general categories of impacts will be considered in the SEIS: Land use; geology, soils, and geologic hazards, including seismicity; water resources (surface water and groundwater); biological resources; protected, threatened and endangered species, including species of special concern; human health and safety (both routine operations and potential accidents); air quality; noise; cultural and historic resources; waste management; environmental justice; and socioeconomics.
A public scoping process is optional for DOE Supplemental EISs (10 CFR 1021.311(f)), and there will be none for this project. However, DOE will provide opportunities for public review and comment, including public hearings, on the draft SEIS.
DOE expects to issue the draft SEIS in 2016.
This is a supplemental notice in the above-referenced proceeding of Hartree Partners, LP's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 8, 2016.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
RESPONSIBLE AGENCY: Office of Federal Activities, General Information (202) 564-7146 or
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
As required by section 9(a)(2) of the Federal Advisory Committee Act (FACA), EPA is giving notice that, pursuant to section 2625(o) of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Agency is establishing the Science Advisory Committee on Chemicals (SACC). The purpose of the SACC is to provide independent advice and expert consultation, at the request of the EPA Administrator, with respect to the scientific and technical aspects of risk assessments, methodologies, and pollution prevention measures or approaches supporting implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Copies of the SACC charter will be filed with the appropriate congressional committees and the Library of Congress. The 14 members of the SACC will be selected from interested and available members of the existing EPA Chemical Safety Advisory Committee (CSAC). In addition, EPA invites the public to nominate experts to be considered for the Science Advisory Committee on Chemicals.
Nominations and comments must be received on or before October 11, 2016.
Submit your nominations and comments, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0474, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Steven Knott, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-0103; email address:
This action is directed to the public in general. This action may, however, be of interest to those involved in the manufacture, processing, distribution, disposal, and/or interested in the assessment of risks involving chemical substances and mixtures. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
This committee is being established under FACA, 5 U.S.C. Appendix 2, and pursuant to the Frank R. Lautenberg Chemical Safety for the 21st Century Act.
The SACC is being established under FACA section 9(a), and pursuant to section 2625(o) of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, to provide advice and recommendations on the scientific basis for risk assessments, methodologies, and pollution prevention measures or approaches.
EPA's Office of Pollution Prevention and Toxics (OPPT) manages programs under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, 15 U.S.C. 2601
The SACC will be composed of approximately 14 members who will serve as Special Government Employees or Regular Government Employees (RGEs). The SACC expects to meet in person or by electronic means (
Potentially, 9 of the 14 members of the SACC will be selected from interested and available members of the existing EPA Chemical Safety Advisory Committee (CSAC). Brief biographical sketches for CSAC members are posted on the CSAC Web site at
1. Holly Davies, Ph.D., Senior Toxicologist, Department of Ecology, State of Washington, Olympia, WA.
2. William Doucette, Ph.D., Professor, Department of Civil and Environmental Engineering, Utah State University, Logan, UT.
3. Panos G. Georgopoulos, Ph.D., Professor of Environmental and Occupational Health, Rutgers Biomedical and Health Sciences—School of Public Health, Rutgers, The State University of New Jersey, Piscataway, NJ.
4. Kathleen Gilbert, Ph.D., Professor, Department of Microbiology and Immunology, University of Arkansas for Medical Sciences, Little Rock, AR.
5. John Kissel, Ph.D., Professor of Environmental and Occupational Health Sciences, University of Washington, Seattle, WA.
6. Jaymie Meliker, Ph.D., Associate Professor, Program in Public Health, Department of Family, Population, & Preventive Medicine, Stony Brook University, Stony Brook, NY.
7. Kenneth Portier, Ph.D., Vice President, Statistics and Evaluation Center, American Cancer Society, Atlanta, GA.
8. Daniel Schlenk, Ph.D., Professor of Aquatic Ecotoxicology and Environmental Toxicology, University of California, Riverside, Riverside, CA.
9. Kristina Thayer, Ph.D., Deputy Division Director of Analysis and Director, Office of Health Assessment and Translation, National Toxicology Program, National Institute of Environmental Health Sciences, Research Triangle Park, NC.
In addition to the 9 interested and available members of CSAC, EPA anticipates selecting 5 new members for the SACC. Nominations for membership are being solicited through publication of this document in the
In addition to scientific expertise, in selecting members, EPA will consider the differing perspectives and breadth of collective experience needed to address EPA's charge to the SACC, as well as the following:
• Background and experiences that would contribute to the diversity of scientific viewpoints on the committee, including professional experiences in government, labor, public health, public interest, animal protection, industry, and other groups, as the EPA Administrator determines to be advisable (
• Skills and experience working on committees and advisory panels including demonstrated ability to work constructively and effectively in a committee setting;
• Absence of financial conflicts of interest or the appearance of a loss of impartiality;
• Willingness to commit adequate time for the thorough review of materials provided to the committee; and
• Availability to participate in committee meetings.
The names, affiliations and brief biographical sketches of the interested and available nominees will be published in the
15 U.S.C. 2625
Environmental Protection Agency (EPA).
Notice.
EPA was directed by Congress to publish in the
You may be potentially affected by this action if you manufacture or export any of the five listed mercury compounds. The following list of North American Industrial Classification
• Other Basic Inorganic Chemical Manufacturing (NAICS code 325180),
• All Other Miscellaneous Chemical Product and Preparation Manufacturing (NAICS code 325998),
• Analytical Laboratory Instrument Manufacturing (NAICS code 334516),
• Other Chemical and Allied Products Merchant Wholesalers (NAICS code 424690),
As directed in TSCA section 12(c)(7)(B), 15 U.S.C. 2611(c)(7)(B), EPA is publishing a list of mercury compounds prohibited from export under TSCA section 12(c), as amended. EPA must publish this list not later than 90 days after June 22, 2016 (15 U.S.C. 2611(c)(7)(B)). Effective January 1, 2020, the statute prohibits export of: Mercury (I) chloride or calomel; mercury (II) oxide; mercury (II) sulfate; mercury (II) nitrate; and cinnabar or mercury sulphide (15 U.S.C. 2611(c)(7)(A)(i)-(v)). The respective Chemical Abstracts Service Registry Numbers (CASRN) associated with the enumerated chemical substances are: 10112-91-1, 21908-53-2, 7783-35-9, 10045-94-0, and 1344-48-5. The statute also provides that EPA, on determining that exporting any additional mercury compound for the purpose of regenerating elemental mercury is technically feasible, may add by rule such mercury compound to the published list (15 U.S.C. 2611(c)(7)(A)(vi)). In addition, any person may petition EPA to add a mercury compound to this published list (15 U.S.C. 2611(c)(7)(C)). The statute provides an exception to the export prohibition for export of listed mercury compounds to member countries of the Organization for Economic Co-operation and Development for environmentally sound disposal, on the condition that no mercury or mercury compounds so exported are to be recovered, recycled, or reclaimed for use, or directly reused, after such export (15 U.S.C. 2611(c)(7)(D)). EPA is not soliciting comments on this notice.
15 U.S.C. 2611(c)
Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“CAA”), notice is hereby given of a proposed settlement agreement to settle lawsuits filed by CTA Construction and Environmental, LLC, and National Electric Coil, Inc. (“Petitioners”), in the United States Court of Appeals for the Ninth Circuit:
Written comments on the proposed settlement agreement must be received by September 26, 2016.
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2016-0498, online at
Susan Stahle, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564-1272; fax number (202) 564-5603; email address:
The proposed settlement agreement would settle Petitioners' petitions for review in the United States Court of Appeals for the Ninth Circuit challenging, under CAA section 307(b)(1), the CAA provisions of the Amended Order. The proposed settlement agreement would require Petitioners to voluntarily dismiss their petitions for review of the Amended Order, with prejudice, in exchange for EPA's agreement that EPA will not seek administrative or civil penalties from the Petitioners for the CAA violations alleged in the Amended Order. The proposed settlement agreement also provides for each party to bear its own litigation costs.
For a period of 30 days following the date of publication of this notice, the Agency will receive written comments relating to the proposed settlement agreement from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department
Direct your comments to the official public docket for this action under Docket ID No. EPA-HQ-OGC-2016-0498 which contains a copy of the proposed settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal 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 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 PRA comments should be submitted on or before October 25, 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.
FCC Form 309—Application for Authority To Construct or Make Changes in an International, Experimental Television, Experimental Facsimile, or a Developmental Broadcast Station—The FCC Form 309 is filed on occasion when the applicant is requesting authority to construct or make modifications to the international broadcast station.
FCC Form 310—Application for an International, Experimental Television, Experimental Facsimile, or a Developmental Broadcast Station License—The FCC Form 310 is filed on occasion when the applicant is submitting an application for a new international broadcast station.
FCC Form 311—Application for Renewal of an International or Experimental Broadcast Station License—The FCC Form 311 is filed by applicants who are requesting renewal of their international broadcast station licenses.
47 CFR 73.702(a) states that six months prior to the start of each season, licensees and permittees shall by informal written request, submitted to the Commission in triplicate, indicate for the season the frequency or frequencies desired for transmission to each zone or area of reception specified in the license or permit, the specific hours during which it desires to transmit to such zones or areas on each frequency, and the power, antenna gain, and antenna bearing it desires to use. Requests will be honored to the extent that interference and propagation conditions permit and that they are otherwise in accordance with the provisions of section 47 CFR 73.702(a).
47 CFR 73.702(b) states that two months before the start of each season, the licensee or permittee must inform the Commission in writing as to whether it plans to operate in accordance with the Commission's authorization or operate in another manner.
47 CFR 73.702(c) permits entities to file requests for changes to their original request for assignment and use of frequencies if they are able to show good cause. Because international broadcasters are assigned frequencies on a seasonal basis, as opposed to the full term of their eight-year license authorization, requests for changes need to be filed by entities on occasion.
47 CFR 73.702 (note) states that permittees who during the process of construction wish to engage in equipment tests shall by informal written request, submitted to the Commission in triplicate not less than 30 days before they desire to begin such testing, indicate the frequencies they desire to use for testing and the hours they desire to use those frequencies.
47 CFR 73.702(e) states within 14 days after the end of each season, each licensee or permittee must file a report with the Commission stating whether the licensee or permittee has operated the number of frequency hours authorized by the seasonal schedule to each of the zones or areas of reception specified in the schedule.
47 CFR 73.782 requires that licensees retain logs of international broadcast stations for two years. If it involves communications incident to a disaster, logs should be retained as long as required by the Commission.
47 CFR 73.759(d) states that the licensee or permittee must keep records of the time and results of each auxiliary transmitter test performed at least weekly.
47 CFR 73.762(b) requires that licensees notify the Commission in writing of any limitation or discontinuance of operation of not more than 10 days.
47 CFR 73.762(c) states that the licensee or permittee must request and receive specific authority from the Commission to discontinue operations for more than 10 days under extenuating circumstances.
47 CFR 1.1301-1.1319 cover certifications of compliance with the National Environmental Policy Act and how the public will be protected from radio frequency radiation hazards.
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
Written PRA comments should be submitted on or before October 25, 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.
FCC Form 611-T is used by DE licensees to file an annual report, pursuant to Section 1.2110(n) of the Commission's rules, related to eligibility for designated entity benefits.
The information collected will be used to ensure that only legitimate small businesses reap the benefits of the Commission's designated entity program. Further, this information will assist the Commission in preventing companies from circumventing the objectives of the designated entity eligibility rules by allowing us to review: (1) The FCC 609-T applications seeking approval for “reportable eligibility events” and (2) the FCC Form 611-T annual reports to ensure that licensees receiving designated entity benefits are in compliance with the Commission's policies and rules.
Federal Communications Commission
Notice of amendment to system of records; three new routine uses.
The Federal Communications Commission (FCC or Commission or Agency) has amended an existing system of records, FCC/OMD-17, Freedom of Information Act (FOIA) and Privacy Act Requests, subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. This action is necessary to meet the requirements of the Privacy Act to publish in the
Written comments are due on or before September 26, 2016. This action will become effective on October 5, 2016 unless comments are received that require a contrary determination.
Send comments to Leslie F. Smith, Privacy Manager, Information Technology (IT), Room 1-C216, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554, or to
Leslie F. Smith, (202) 418-0217, or
The FCC previously gave notice of this system of records, FCC/OMD-17, by publication in the
Freedom of Information Act (FOIA) and Privacy Act Requests.
FOIA and Privacy Act request files are maintained at the Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554. Information related to FOIA requests and appeals is also stored in the FOIAonline database, available at
The categories of individuals covered by this system include, but are not limited to individuals who submit Freedom of Information Act (FOIA) and Privacy Act requests, or administrative appeals; and individuals who are the subject of FOIA and Privacy Act requests and appeals or whose personally identifiable information is contained in records covered by this system.
These records contain information about individuals most commonly including name, home address, email address, telephone or cell phone numbers, and less frequently may include date of birth, social security number, and driver's license number.
5 U.S.C. 552 and 5 U.S.C. 552a.
The Commission's Performance Evaluation and Records Management staff (PERM) of the Office of Managing Director collects and maintains the information in this system through FOIAonline (
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed to authorized entities, as is determined to be relevant and necessary, outside the FCC as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows. In each of these cases, the FCC will determine whether disclosure of the records is compatible with the purpose(s) for which the records were collected:
1. Public Access—The FCC authorizes public access to FOIA requests and appeals through FOIAonline (
2. Determinations on Access—To assist the FCC in making an access determination, a record from the system may be shared with (a) the person or entity that originally submitted the record to the agency or is the subject of the record or information; or (b) another Federal entity.
3. Adjudication and Litigation—To the Department of Justice (DOJ), or other administrative body before which the FCC is authorized to appear, when: (a) The FCC or any component thereof; (b) any employee of the FCC in his or her official capacity; (c) any employee of the FCC in his or her individual capacity where DOJ or the FCC has agreed to represent the employee; or (d) the United States is a party to litigation or has an interest in such litigation, and the use of such records by DOJ or the FCC is deemed by the FCC to be relevant and necessary to the litigation.
4. Law Enforcement and Investigation—To disclose pertinent information to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where the FCC becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation.
5. Congressional Inquiries—To provide information to a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual.
6. Government-wide Program Management and Oversight—To the National Archives and Records Administration (NARA) for use in its records management inspections; to the Government Accountability Office (GAO) for oversight purposes; to the Department of Justice (DOJ) to obtain that department's advice regarding disclosure obligations under the Freedom of Information Act (FOIA); or to the Office of Management and Budget (OMB) to obtain that office's advice regarding obligations under the Privacy Act.
7. National Archives and Records Administration—To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill its responsibilities in 5 U.S.C. 552(h), to review administrative agency policies, procedures, and compliance with the Freedom of Information Act (FOIA), and to facilitate OGIS' offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.
8. Breach Notification—To appropriate agencies, entities, and persons when (a) the Commission suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the Commission has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Commission or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Commission's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm; and
9. For Non-Federal Personnel—To disclose information to contractors performing or working on a contract for the Federal Government.
None.
Information in this system includes both paper and electronic records. The paper records, documents, and files are maintained in file cabinets that are located in the OMD/PERM FOIA Public Liaison's office suite and the Office of General Counsel, and in the bureaus and offices of the FCC staff who provide the responses to FOIA/Privacy Act requests. The electronic records, files, and data are stored in FOIAonline and in the FCC's computer network.
Records in this system of records are most often retrieved by the control number for the request, but may be retrieved by an individual's name,
Records concerning administrative appeals for access requests under the FOIA and records concerning administrative appeals for access requests and accountings of disclosure requests under the Privacy Act are maintained by the FCC's Office of General Counsel and in FOIAonline. Inquiries regarding these records should be addressed to the General Counsel, Office of General Counsel, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554 or to
Access to the file cabinets containing paper records in this system are maintained in the FOIA Public Liaison's office and in the bureau or office suites accessible through card-coded main doors. The FOIA file cabinets in the office of the FOIA Public Liaison are locked at the end of the business day. Access to these FOIA files is restricted to authorized supervisors and staff who are responsible for responding to the FOIA requests or appeals.
The electronic records, files, and data are housed in FOIAonline and in the FCC's computer network. Access to the electronic files is restricted to staff in the bureaus and offices who are responsible for responding to FOIA requests, and to the Information Technology Center (ITC) staff and contractors who maintain the FCC's computer network. Other FCC employees and contractors may be granted access on a “need-to-know” basis. The FCC's computer network databases are protected by the FCC's IT privacy safeguards, a comprehensive and dynamic set of IT safety and security protocols and features that are designed to meet all Federal IT privacy standards, including those required by the National Institute of Standards and Technology (NIST) and the Federal Information Security Management Act (FISMA).
Records are retained and disposed of in accordance with the National Archives and Records Administration's General Records Schedule 4.2, Items 020, 040, 050, 070, and 090.
FOIA Public Liaison, Office of Managing Director (OMD), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554.
FOIAonline is managed by the U.S. Environmental Protection Agency, Office of Information Collection, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
Individuals wishing to determine whether this system of records contains information about them may do so by writing to FOIA Public Liaison, Office of Managing Director (OMD), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554, email:
Access to information about FOIA requests and appeals is available through FOIAonline,
Individuals wishing to contest information pertaining to him or her in the system of records should follow the Notification Procedure above.
The sources for the information in this system of records are the individuals making requests under FOIA or the Privacy Act; the individuals who are the subjects of FOIA or Privacy Act requests; the attorneys or representatives of the requesters and the subjects of the requests; communication between FCC organizational units (bureaus and offices), and the investigative materials and related documentation and decisions involved in appeals, amendments, and litigation concerning FOIA responses, etc.
None.
Board of Governors of the Federal Reserve System.
Notice.
Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) granted the Board of Governors of the Federal Reserve System (Board) enhanced authority to supervise financial market utilities that are designated as systemically important by the Financial Stability Oversight Council (financial market utilities are defined to comprise a subset of the entities that, outside the United States, are generally called financial market infrastructures or FMIs). In addition, the Board may have direct supervisory authority over other FMIs subject to its jurisdiction. The Board has approved the use of the ORSOM (
The Board will begin using the FMI rating system on October 27, 2016.
Stuart Sperry, Deputy Associate Director (202) 452-2832 or Kristopher Natoli, Manager (202) 452-3227, Division of Reserve Bank Operations and Payment Systems; Evan H. Winerman, Counsel (202) 872-7578, Legal Division; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.
FMIs are multilateral systems that transfer, clear, settle, or record payments, securities, derivatives, or other financial transactions among participants or between participants and the FMI operator. FMIs include payment
The Federal Reserve supervises certain FMIs that provide payment, clearing, and settlement services for critical U.S. financial markets. Specifically, under Title VIII of the Dodd-Frank Act, the Federal Reserve is the Supervisory Agency for certain designated financial market utilities (DFMUs).
The term Supervisory Agency is defined in Title VIII as the “Federal agency that has primary jurisdiction over a designated financial market utility under Federal banking, securities, or commodity futures laws” (12 U.S.C. 5462(8)). Currently, the Board is the Supervisory Agency for two DFMUs: (i) The Clearing House Payments Company, L.L.C., on the basis of its role as operator of the Clearing House Interbank Payments System (CHIPS), and (ii) CLS Bank International (CLS).
The ORSOM (
The Board received two public comment letters on the notice and request for comment. The Board considered these comments in developing its final FMI rating system. Except as noted herein, the Board is adopting the rating system's text as proposed.
The Board proposed to use the ORSOM rating system as a supervisory tool for providing a consistent internal framework for performing annual FMI assessments across the Federal Reserve's FMI portfolio, which includes DFMUs for which the Board is the Supervisory Agency pursuant to Title VIII, other FMIs over which the Board has supervisory authority because they are members of the Federal Reserve System, and FMIs that are operated by the Federal Reserve Banks. Commenters were generally supportive of the Board's effort to establish a consistent approach to rating FMIs. Both commenters, however, raised two general concerns about the Board's overall approach: (1) That the rating system would create new obligations beyond those that already exist in Regulation HH and (2) that an FMI's rating would depend excessively on supervisory judgment.
The Board's FMI rating system is an internal supervisory tool that is intended to assist supervisors in assessing FMIs against regulatory requirements, but it does not create any new obligations or requirements for FMIs. In establishing a consistent internal framework for discussing FMI assessments, the FMI rating system instructs supervisory staff to consider relevant regulations and related guidance. The explanatory language provided for each of the rating system's categories is intended to describe generally the range of issues covered in each category's relevant regulations and guidance. The Board has revised the ratings system to address concerns that it expands on already-applicable requirements. For example, the Board has added clarifying language to the rating system's Introduction section and made technical edits throughout to align each category's explanatory language more closely with Regulation HH's text.
With regard to the role that supervisory judgment plays in determining an FMI's rating, the Board believes that the rating system must provide examiners with the ability to use their expertise and judgment when determining an FMI's rating. An FMI's category and composite ratings reflect many factors that may vary in importance for each FMI. Supervisory staff's judgment will be guided by the relevant regulations and guidance, as well as by the Board's internal processes for ensuring consistent treatment of similarly situated FMIs.
The Board agrees with commenters that supervisory staff should explain the supervisory judgment underlying an FMI's rating. The rating system is
Commenters requested that the Board make multiple changes to the rating system that would align the rating system more closely with the text of Regulation HH. The rating system is fundamentally derived from, and should reflect, the requirements of Regulation HH and the PSR policy. Therefore, the Board made technical clarifications throughout the rating system to align explanatory language more closely with Regulation HH's text. Examples include changing the explanatory language in the Board and Management Oversight subcomponent of the Organization category to specify that the requirement for independent validation focuses on risk-management models; the Risk Management category to reflect verbatim Regulation HH's requirement pertaining to recovery and orderly wind-down plans; and the Settlement category to reflect verbatim Regulation HH's requirement that FMIs provide clear and certain final settlement.
Both commenters raised concerns regarding the explanatory language in the Market Support, Access and Transparency category, which states that “the analysis under this category considers . . the efficiency with which [the FMI] consumes resources in providing its services.” Commenters believed that this language was vague. The Board is retaining this language in the ratings system guidance because Regulation HH requires that a DFMU operate efficiently.
One commenter requested that the Board provide more specific examples of the relevant guidance to which examiners would refer when determining an FMI's rating. For each category, the Board has, to the extent possible, specified the relevant statutes, regulations, and guidance that factor into that category's rating. In the case of the Operational Risk and IT category, the Board refers to “FFIEC and relevant industry guidance.” In assessing an FMI's performance under Regulation HH's requirements with respect to operational risk and cybersecurity policies and procedures,
The proposed text of the Board and Management Oversight stated that “[t]his rating evaluates how effectively the board of directors and senior management guide and manage the FMI, and ensure that the FMI operates in a safe and sound manner; specific considerations in this regard include management's responsiveness to supervisory concerns.” One commenter requested the Board confirm its understanding that this language refers to issues that the Board identifies and that the FMI agrees to address and not to issues that are subject to a formal appeals process. FMI ratings are an internal tool for Federal Reserve supervisors, and, unlike ratings of insured depository institutions and their holding companies, do not carry any automatic implications with respect to supervisory or regulatory interventions or requirements. Therefore, the Board does not have a formal appeals process for its supervisory ratings at this time.
The Board expects FMI management to respond appropriately to supervisory concerns. Title VIII requires the Board to prescribe risk management standards governing DFMUs' operations related to payment, clearing, and settlement activities, and to conduct annual examinations of relevant DFMUs for which it is the Supervisory Agency to determine, among other things, their safety and soundness, as well as their compliance with Title VIII and any rules and orders prescribed thereunder. If supervisory staff believes that a DFMU's board and management are failing to respond to supervisory concerns and thereby undermining the DFMU's safety and soundness or threatening financial stability, supervisory staff will incorporate that determination into its assessment of board and management oversight, regardless of whether the board and management disagree with supervisory staff's conclusions.
Under the ORSOM rating system for financial market infrastructures (FMIs), the Federal Reserve develops a rating for each of the ORSOM categories and rolls those category ratings into an overall composite rating. The rating system is designed to (1) be clearly tied to relevant Federal Reserve regulations and guidance, (2) facilitate a clear and logical discussion of the FMI's condition with the FMI's management and board of directors, (3) be easily understood and used by both supervisors and FMIs, (4) be flexible, (5) facilitate comprehensive and consistent assessments across the Federal Reserve's FMI portfolio, and (6) promote financial stability by ensuring that systemically important FMIs understand and are held to the Federal Reserve's rigorous risk-management standards. Importantly, the
Additionally, the rating system is designed to allow for supervisory judgment and discretion, and should not be viewed as establishing a formula for determining an FMI's rating. Each of the assigned ratings, including the composite rating, should reflect supervisory judgment about the importance of the individual categories and issues as they pertain to the FMI. Relevant provisions of Regulation HH and the Payment System Risk (PSR) policy, which are reflected in each rating category, help to organize and structure each category's rating. The criticality of categories and issues, however, may differ among FMIs because of factors such as their differing services, risk profiles, and operational and organizational structures. An FMI's rating will also take into account the FMI's responsiveness to supervisory concerns and the demonstrated effectiveness of any measures that the FMI has implemented to address the root cause of those concerns.
The ORSOM rating system consists of the following five categories, which were selected to highlight broadly the risk management issues that FMIs face, to guide supervisory examinations, and to provide a structure for organizing assessment letters:
Analysis of the issues considered under each category should be consistent with Regulation HH, the PSR policy, and relevant guidance, such as supervision and regulation (SR) letters and guidance of the Federal Financial Institutions Examination Council (FFIEC). The categories' order is not a reflection of their relative importance. The weight prescribed to either a category or a category's components is a matter of supervisory judgment and expertise, and may differ among FMIs. In addition, supervisory staff's assessment of an FMI should take into account the categories' interrelationships and the FMI's entire risk management framework, and should integrate knowledge derived from all available sources, including examination work, continuous monitoring efforts, and other relevant sources (for example, the processes set forth in Regulation HH and Board policy regarding advance notice of material changes proposed by designated financial market utilities (DFMUs) and the Federal Reserve Banks' Fedwire services, respectively, and lessons learned from market events). Finally, an FMI's category rating should reflect consideration of the demonstrated effectiveness of any remediation measures that the FMI has implemented to address the root cause of supervisory concerns.
The foundations of an FMI's risk management framework are its management and governance structures, which include the board of directors' and management's authority, responsibilities, and reporting. The Organization category evaluates the FMI's overarching objectives, and the ability of the FMI's board and management to implement them. This category also considers the relationships among the FMI's relevant stakeholders and their influence on the FMI's business strategy. Further, analysis under this category considers the independence and effectiveness of the FMI's internal audit function and its ability to inform the board and management about the robustness of the FMI's risk management and control processes. As a result, the Organization category contains two subcomponents, Board and Management Oversight, and Internal Audit. The FMI's assessment under these subcomponents is reflected in a single category rating.
The Board and Management Oversight subcomponent addresses the organization and conduct of the FMI's board of directors and senior management. It assesses the structure and effectiveness of the FMI's legal and compliance risk monitoring and management framework. This rating evaluates how effectively the board of directors and senior management guide and manage the FMI, and ensure that the FMI operates in a safe and sound manner; specific considerations in this regard include management's responsiveness to supervisory concerns. This rating component also evaluates the board's effectiveness at establishing the FMI's objectives, strategy, and risk tolerances, and management's effectiveness at ensuring that the FMI's activities are consistent with them. Specific considerations in this regard include the board's effectiveness in setting strategic objectives, developing a risk-management framework, creating clear and responsive corporate governance structures, and establishing corporate risk tolerances. This rating also evaluates the effectiveness of the FMI's governance program for risk models and its use of independent validation mechanisms to validate the FMI's risk-management model methodologies and output.
Relevant statutes, regulations and guidance include—
The Internal Audit subcomponent reflects the ability and independence of the FMI's internal audit function to assess risk and to inform the board and management. An FMI should have an effective internal audit function with sufficient resources and independence from management to provide a rigorous and unbiased assessment of the FMI's risk profile and risk exposure, including financial and operational risk, as well as the effectiveness of risk management and controls. The Internal Audit subcomponent assesses the internal audit function's day-to-day management, including its annual risk assessment, audit program, quality of work papers, quality assurance, planning and reporting, and training.
Relevant regulations and guidance include—
The Risk Management category evaluates the effectiveness of the FMI's risk management, including the availability to the FMI of acceptable financial resources to contain and manage losses and liquidity pressures, and the FMI's ability to meet its obligations in the event of a participant's default. Further, the rating assesses whether the FMI has developed a risk-management framework that includes integrated plans for the FMI's recovery and orderly wind-down, and the viability of its capital plan. The rating also considers the FMI's ability and practices in safeguarding its own assets and those of its participants, and the FMI's ability to ensure those assets are readily available and convertible into cash with minimum losses. In addition, the Risk Management rating assesses the FMI's awareness, mitigation, or management of the material risks that its participants' customers and other FMIs indirectly introduce.
Relevant regulations and guidance include—
Final settlement is the irrevocable and unconditional transfer of an asset or financial instrument, or the discharge of an obligation by an FMI or its participants in accordance with the underlying contract's terms. Settlement risk, which is the risk that settlement will not take place as expected, is a key risk that FMIs and their participants face. Failure to settle a transaction on time and in full can create liquidity and credit problems for an FMI or its participants, with potential systemic implications. This is especially true during a participant default event. Well-designed, clearly articulated, and effectively disclosed default management rules are imperative to maintaining market confidence in the event of a participant default.
The Settlement category focuses on the risk-management tools that an FMI uses to ensure settlement takes place as expected, and the default management procedures the FMI follows in the event of a participant default. The rating assesses the FMI's ability to provide clear and certain final settlement, and its ability to manage the risks related to money settlements and the delivery of physical assets. The rating also includes central securities depositories' abilities to safeguard the rights of securities issuers and holders, and to ensure the integrity of the securities issues that they hold in custody. Finally, this category includes assessing the adequacy of the FMI's participant default rules and procedures, and the steps that the FMI takes to ensure that it is prepared to execute them.
Relevant regulations and guidance include—
FMIs face significant operational and IT risks in their provision of post-trade services. Operational risk entails deficiencies in information systems, internal processes, and personnel, or disruptions from external events that may result in the reduction, deterioration, or breakdown of services provided by an FMI. FMIs are expected to ensure that, through the development of appropriate systems, controls, and procedures, their operations and IT infrastructure are reliable, secure, and have adequately scalable capacity. FMIs' information security practices and controls are expected to be strong and effective. FMIs should protect and secure the systems, media, and facilities that process and maintain information vital to their operations in the context of a continually changing threat landscape. Further, FMIs are expected to have robust business continuity plans that allow for the rapid recovery and timely resumption of critical operations. FMIs are expected to test and update these plans regularly.
The Operational Risk and IT category focuses on the FMI's operational reliability and its ability to support the safe and continuous functioning of the markets that it serves. This category considers the FMI's operational risk management framework and IT infrastructure, including the adequacy of the FMI's operational risk management governance, internal controls, physical and information security, data management, capacity management, and business continuity plan.
Relevant regulations and guidance include—
FMIs should be designed and operated to meet the needs of their participants and the markets that they serve. Access to FMIs' services is often necessary for meaningful participation in the markets that they serve, and FMIs' efficiency and effectiveness can influence financial activity and market structure. Also, access to, and understanding of, relevant information about an FMI fosters confidence among participants and the public.
The Market Support, Access, and Transparency category focuses on the FMI's efforts to support the markets it serves, to ensure fair and open access to its services (while balancing the FMI's safety and efficiency), and to provide participants with the information necessary to understand the risks and responsibilities attendant with their participation in the FMI. Analysis under this category considers, among other things, the FMI's implementation of risk-based, objective participation requirements; its member monitoring framework; the efficiency with which it consumes resources in providing its services; and the adequacy of its disclosure of its rules, its key procedures, and its legal, governance, risk management, and operating framework.
Relevant regulations and guidance include—
FMIs receive a rating for each ORSOM category based on an evaluation of the FMI against that category's key attributes as described herein. Regulation HH prescribes risk-management standards for DFMUs for which the Board or another federal banking agency is the Supervisory Agency under Title VIII of the Dodd-Frank Act. Other FMIs subject to Federal Reserve supervision—for example, other DFMUs over which the Board has supervisory authority because they are members of the Federal Reserve System, and FMIs that are operated by the Federal Reserve Banks—are subject to the Federal Reserve Act and the expectations set out in the Federal Reserve's PSR policy. An FMI's rating should be consistent with the expectations set forth in Regulation HH, the PSR policy, and relevant supervisory guidance, such as SR letters and FFIEC guidance.
A common set of definitions for each rating level is applied across all of the ORSOM categories. These general definitions focus on broad supervisory interests, which are—
• the extent to which any issues identified, either individually or cumulatively, are issues of concern for the safety and soundness of the FMI or the stability of the broader financial system.
• the immediacy with which the FMI is expected to remedy the issues, and the extent to which close supervisory monitoring of the FMI's remediation efforts, or supervisory action, is needed.
Supervisors may identify multiple issues with differing degrees of concern. In such cases, supervisors typically should assign the category a rating that reflects their judgment of the severity of the most serious concerns identified. For example, if a payment system meets the majority of supervisory standards for the Settlement category, but only partly observes the risk management standard pertaining to settlement finality, then, because of that issue's criticality to a payment system, the payment system's rating for the Settlement category should reflect its weaknesses with regard to that key risk management standard.
• Any issues identified, either individually or cumulatively, are not issues of concern with respect to the category's supervisory guidance. For example, the FMI observes all of the key risk management standards in Regulation HH or the PSR policy, as applicable.
• The FMI can correct any issues identified in the normal course of business and focused supervisory monitoring of the FMI's remediation efforts is not needed.
• Any issues identified, either individually or cumulatively, are not presently issues of concern with respect to the category's supervisory guidance, but may become so if left uncorrected. For example, the FMI either observes or broadly observes the key risk management standards in Regulation HH or the PSR policy, as applicable.
• The FMI can correct any issues identified in the normal course of business, but limited, focused supervisory monitoring of the FMI's remediation efforts may be needed.
• One or more issues identified, either individually or cumulatively, are issues of concern with respect to the category's supervisory guidance. For example, the FMI, at a minimum, broadly observes most of the key risk management standards in Regulation HH or the PSR policy, as applicable, but may partly observe some of them.
• The FMI should correct one or more of the issues of concern identified within a defined period, focused supervisory monitoring of the FMI's remediation efforts is likely needed, and supervisory action may be needed.
• One or more issues identified, either individually or cumulatively, are substantial issues of concern with respect to the category's supervisory guidance. For example, the FMI only partly observes many key risk management standards in Regulation HH or the PSR policy, as applicable, and may not observe some of them.
• The FMI should correct one or more of the issues of concern identified immediately, focused supervisory monitoring of the FMI's remediation efforts is needed, and supervisory action is likely.
• One or more issues identified, either individually or cumulatively, are critical and immediate issues of concern with respect to the category's supervisory guidance. For example, the FMI does not observe key risk management standards in Regulation HH or the PSR policy, as applicable.
• The FMI must correct one or more of the issues of concern identified immediately, and immediate supervisory action and monitoring of the FMI's remediation efforts are needed.
An FMI's composite rating indicates whether and to what extent the issues identified, in the aggregate, give cause for supervisory concern. Like the category ratings, an FMI's composite rating ranges from 1 to 5. A rating of 1 indicates the strongest performance and, therefore, the level of least supervisory concern, and a rating of 5 indicates a critically deficient level of performance and, therefore, the greatest level of supervisory concern. An FMI's
• As reflected in its category ratings, an FMI with a composite rating of 1 is substantially sound in every respect and does not give cause for supervisory concern.
• Any issues identified do not reflect a pattern of risk management or governance failures and, either individually or cumulatively, are not issues of concern for the safety and efficiency of either the FMI or the markets that it supports.
• The FMI can correct any issues identified in the normal course of business and focused supervisory monitoring of the FMI's remediation efforts is not needed.
• As reflected in its category ratings, an FMI with a composite rating of 2 is sound in most respects and does not presently give cause for supervisory concern.
• Any issues identified do not reflect a pattern of risk management or governance failures and, either individually or cumulatively, are not presently issues of concern for the safety and efficiency of either the FMI or the markets that it supports, but may become so if left uncorrected.
• The FMI can correct any issues identified in the normal course of business, but limited, focused supervisory monitoring of the FMI's remediation efforts may be needed.
• As reflected in its category ratings, an FMI with a composite rating of 3 is sound in many respects, but gives cause for some supervisory concern, and supervisory action may be necessary.
• Any issues identified, either individually or cumulatively, are issues of concern for the safety and efficiency of either the FMI or the markets that it supports.
• The FMI should correct one or more of the issues of concern identified within a defined period and focused monitoring of the FMI's remediation efforts is likely needed.
• As reflected in its category ratings, an FMI with a composite rating of 4 is unsound in one or more respects and gives cause for substantial supervisory concern, which will likely lead to supervisory action.
• Any issues identified, either individually or cumulatively, are substantial issues of concern for the safety and efficiency of either the FMI or the markets that it supports.
• The FMI should correct one or more of the issues of concern identified immediately and focused supervisory monitoring of the FMI's remediation efforts is needed.
• As reflected in its category ratings, an FMI with a composite rating of 5 is considered critically unsound and gives cause for substantial and immediate supervisory concern and action.
• Any issues identified, either individually or cumulatively, are critical and immediate issues of concern for the safety and efficiency of either the FMI or the markets that it supports.
• The FMI must correct one or more of the issues of concern identified immediately, and immediate supervisory action and monitoring of the FMI's remediation efforts are needed.
Congress enacted the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
The Board received no comments on its initial regulatory flexibility analysis regarding the supervisory rating system for FMIs. The rating system will apply to FMUs that are designated by the Financial Stability Oversight Council under Title VIII of the Dodd-Frank Act as systemically important, for which the Board is the Supervisory Agency, and which are subject to Regulation HH. In addition, the supervisory rating system for FMIs will apply to other DFMUs over which the Board has supervisory authority because they are members of the Federal Reserve System, and FMIs that are operated by the Federal Reserve Banks, pursuant to the PSR policy. Based on current information, none of the FMIs are “small entities” for purposes of the RFA, and so, the rating system likely will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605(b)). The following final regulatory flexibility analysis, however, has been prepared in accordance with 5 U.S.C. 604, based on current information.
As a matter of policy, the Board subjects all operational and legal changes that could have a substantial effect on payment system participants to a competitive impact analysis, even if competitive effects are not apparent on the face of the proposal. Pursuant to this policy, the Board assesses whether the changes “would have a direct and material adverse effect on the ability of other service providers to compete effectively with the Federal Reserve in providing similar services” and whether any such adverse effect “was due to legal differences or due to a dominant market position deriving from such legal differences.” If, as a result of this analysis, the Board identifies an adverse effect on the ability to compete, the Board then assesses whether the associated benefits—such as improvements to payment system efficiency or integrity—can be achieved while minimizing the adverse effect on competition.
DFMUs are subject to the supervisory framework established under Title VIII of the Dodd-Frank Act. At least one DFMU that is subject to Regulation HH competes with a similar service provided by the Reserve Banks. Under the Federal Reserve Act, the Board has general supervisory authority over the Reserve Banks, including the Reserve Banks' provision of payment and settlement services (Federal Reserve priced services). This general supervisory authority is much more extensive in scope than the authority provided under Title VIII over DFMUs. In practice, Board oversight of the Reserve Banks goes well beyond the typical supervisory framework for private-sector entities, including the framework provided by Title VIII.
The Board is committed to applying risk-management standards to the Reserve Banks' Fedwire Funds Service and Fedwire Securities Service that are at least as stringent as the applicable Regulation HH standards applied to DFMUs that provide similar services. The risk management and transparency expectations in part I of the PSR policy, which applies to the Federal Reserve priced services, are consistent with those in Regulation HH. The ORSOM rating system will be applied equally to both DFMUs subject to Regulation HH and to the other FMIs subject to the Board's authority, including the Federal Reserve priced services, subject to the PSR policy. Therefore, the Board does not believe the rating system will have any direct and material adverse effect on the ability of other service providers to compete with the Reserve Banks.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR part 1320, Appendix A.1), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board has reviewed this rating system and determined that it contains no collections of information.
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 September 12, 2016.
A. 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.
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 September 22, 2016.
A. 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.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning rights in data and copyrights.
Submit comments on or before October 25, 2016.
Submit comments identified by Information Collection 9000-0090 by any of the following methods:
•
•
Mr. Charles Gray, Procurement Analyst, at 703-795-6328 or email
Subpart 27.4, Rights in Data and Copyrights is a regulation which concerns the rights of the Government and contractors with whom the Government contracts, regarding the use, reproduction, and disclosure of information developed under such contracts. The delineation of such rights is necessary in order to protect the contractor's rights to not disclose proprietary data, and to insure that data developed with public funds is available to the public.
The information collection burdens and recordkeeping requirements included in this regulation fall into the following four categories:
(a) A provision which is to be included in solicitations where the offeror would identify any proprietary data it would use during contract performance, in order that the contracting officer might ascertain if such proprietary data should be delivered.
(b) Contract provisions which, in unusual circumstances, would be included in a contract and require a contractor to deliver proprietary data to the Government for use in evaluating work results, or is software to be used in a Government computer. These situations would arise only when the very nature of the contractor's work is comprised of limited rights data or restricted computer software and if the Government would need to see that data in order to determine the extent of the work.
(c) A technical data certification for major systems, which requires the contractor to certify that the data delivered under the contract is complete, accurate and compliant with the requirements of the contract. As this provision is for major systems only, and few civilian agencies have such major systems, only about 30 contracts should require this certification.
(d) The Additional Data Requirements clause, which is to be included in all contracts for experimental, developmental, research, or demonstration work (other than basic or applied research to be performed solely by a university or college where the contract amount will be $500,000 or less). The clause requires that the contractor keep all data first produced in the performance of the contract for a period of three years from the final acceptance of all items delivered under the contract. Much of this data will be in the form of deliverables provided to the Government under the contract (final report, drawings, specifications, etc.). Some data, however, will be in the form of computations, preliminary data, records of experiments, etc., and these will be the data that will be required to be kept over and above the deliverables. The purpose of such recordkeeping requirements is to insure that the Government can fully evaluate the research in order to ascertain future activities and to insure that the research was completed and fully reported, as well as to give the public an opportunity to assess the research results and secure any additional information. All data covered by this clause is unlimited rights data paid for by the Government.
Paragraph (d) of the Rights in Data—General clause (52.227.14) outlines a procedure whereby a contracting officer can challenge restrictive markings on data delivered. Under civilian agency contracts, limited rights data or restricted computer software is rarely, if ever, delivered to the Government. Therefore, there may rarely be any challenges. Thus, there is no burden on the public.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a guidance for industry entitled “Microbiology Data for Systemic Antibacterial Drugs—Development, Analysis, and Presentation.” The purpose of this guidance is to assist sponsors in the development, analysis, and presentation of microbiology data during antibacterial drug development. This guidance finalizes the draft guidance of the same name issued on September 17, 2009.
Submit either electronic or written comments on Agency guidances at any time.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Joseph G. Toerner, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave, Bldg. 22, Rm. 6244, Silver Spring, MD 20993-0002, 301-796-1400.
FDA is announcing the availability of a guidance for industry entitled “Microbiology Data for Systemic Antibacterial Drugs—Development, Analysis, and Presentation.” The purpose of this guidance is to assist sponsors in the development, analysis, and presentation of microbiology data during antibacterial drug development. Microbiology data provide important information to guide clinical development of antibacterial drugs and guide clinicians on the use of an antibacterial drug for its intended indication.
This guidance finalizes the draft guidance issued on September 17, 2009
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on the development, analysis, and presentation of microbiology data for systemic antibacterial drugs. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
1. This guidance provides recommendations on the type of information to include in submissions of the clinical microbiology section of investigational new drug applications (INDs) and new drug applications (NDAs) for systemic antibacterial drugs. The microbiology section of an NDA is required under 21 CFR 314.50(d)(4) and this information collection is approved under OMB control number 0910-0001. For INDs, this information is required under 21 CFR 312.23(a) and approved under OMB control number 0910-0014.
2. This guidance also recommends the types of data that should be submitted in a labeling supplement to update the microbiology information in approved labeling if an application holder chooses to update this information without relying on a standard recognized by FDA. The submission of labeling supplements is required under 21 CFR 314.70(b)(2)(v) and 201.56(a)(2) and this information collection is approved under OMB control numbers 0910-0001 and 0910-0572, respectively.
3. Appendix D of this guidance describes the content of the Microbiology subsection of labeling. This labeling is covered under 21 CFR 201.57(c)(13)(i) and the information collection is approved under OMB control number 0910-0572.
4. This guidance also references the guidance for industry entitled “Updating Labeling for Susceptibility Test Information in Systemic Antibacterial Drug Products and Antimicrobial Susceptibility Testing Devices” for updating labeling information. The information collection in this guidance has been approved under OMB control number 0910-0638.
Persons with access to the Internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by October 25, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, 20852,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
ITACS currently provides the import trade community with four functions: The ability to check the status of FDA-regulated entries and lines, the ability to submit entry documentation electronically, the ability to electronically submit the location of goods for those lines targeted for FDA physical examination, and the ability to check estimated laboratory analysis completion dates. No user login accounts are currently necessary to access these functions; all that is necessary is a valid customs entry number that has been successfully transmitted to FDA.
FDA has developed ITACS user account management functionality. Implementation of this functionality would allow members of the import trade community to create and manage secure user accounts in ITACS, which would enable FDA to distribute Notices of FDA Action to users electronically via email (rather than regular mail), enable users to download Notices of FDA Action from within ITACS, and allow users to view in ITACS the details of specific information requests which are currently delivered via hard copy Notices of FDA Action. ITACS user account management functionality would also allow for potential future ITACS enhancements, requested by the import trade community, that require user authentication.
To create a secure user account for ITACS via the user account management function, a person would have to enter basic information such as the person's name, their employer's name, a contact email address, an account password, etc., into ITACS via the user account management function interface.
FDA estimates the burden of this collection of information as follows:
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by Section 2112(b)(2) of the Public Health Service (PHS) Act, as amended. While the Secretary of Health and Human Services is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact the Clerk, United States Court of Federal Claims, 717 Madison Place NW., Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, MD 20857; (301) 443-6593, or visit our Web site at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the U.S. Court of Federal Claims at the address listed above (under the heading “For Further Information Contact”), with a copy to HRSA addressed to Director, Division of Injury Compensation Programs, Healthcare Systems Bureau, 5600 Fishers Lane, 08N146B, Rockville, Maryland 20857. The Court's caption (Petitioner's Name v. Secretary of Health and Human Services) and the docket number assigned to the petition should be used as the caption for the written submission. Chapter 35 of title 44, United States Code, related to paperwork reduction, does not apply to information required for purposes of carrying out the Program.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
Members of the public interested in providing comments or questions to committee members should contact the Designated Federal Officer in advance.
Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the contact person listed below at least 10 days prior to the meeting.
Esther Paul, Designated Federal Officer, NACMH, Office of Policy and Program Development, Bureau of Primary Health Care, Health Resources and Services Administration, 5600 Fishers Lane,
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
At the September 28-29, 2016 meeting the Committee will hear presentations and hold discussions on several health data policy topics. The Committee will receive updates from the Department, including from the Office of the National Coordinator and the Centers for Medicare and Medicaid Services. The Committee will discuss and take action on three items: (1) A report from NCVHS's ACA Review Committee that will focus on findings from its June 2015 hearing on Adopted Transaction Standards, Operating Rules, Code Sets & Identifiers; (2) a recommendation letter created from testimonies heard at the Minimum Necessary hearing held in June 16, 2016 by the Subcommittee on Privacy, Confidentiality and Security; and (3) a recommendation letter based on the June 17, 2016 hearing on Claims-based Databases for Policy Development and Evaluation. In addition, the Committee will discuss the future of vital statistics data with a briefing from NCHS's Division of Vital and Health Statistics. Subcommittees of the NCVHS will finalize action items for full Committee approval on day two of the meeting and plan for future initiatives. The Committee will further review its strategic plan for 2016 and all Subcommittees will report on work plans and next steps.
After the plenary session adjourns, the Work Group on HHS Data Access and Use will continue strategic discussions on building a framework for guiding principles for data access and use.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458-4EEO (4336) as soon as possible.
Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice; correction.
The Department of Health and Human Services published a document in the
Ayah Wali by email at
In the
The meeting is scheduled to be held on September 19, 2016, from 12:30 p.m. to 5:30 p.m. ET (times are tentative and subject to change). The confirmed times and agenda items for the meeting will be posted on the Web site for the Advisory Council at
National Vaccine Program Office, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The National Vaccine Advisory Committee (NVAC) was established in 1987 to comply with Title XXI of the Public Health Service Act (Pub. L. 99-660) (§ 2105) (42 U.S. Code Section 300aa-5). Its purpose is to advise and make recommendations to the Director of the National Vaccine Program on matters related to the program's responsibilities. The Assistant Secretary for Health (ASH) has been designated by the Secretary of Health and Human Services (HHS) as the Director of the National Vaccine Program. The National Vaccine Program Office (NVPO) is located within the Office of the Assistant Secretary for Health (OASH), Office of the Secretary, U.S. Department of Health and Human Services (HHS). The NVPO provides leadership and fosters collaboration among the various federal agencies involved in vaccine and immunization activities. The NVPO also provides management and support services for the National Vaccine Advisory Committee (NVAC). The NVAC advises and makes recommendations to the ASH in his/her capacity as the Director of the National Vaccine Program on matters related to the program's responsibilities.
Recognizing the importance and impact of maternal immunizations on public health, the ASH charged the NVAC in June 2012 with reviewing the state of maternal immunizations and existing best practices to identify programmatic gaps and/or barriers to the implementation of current recommendations regarding maternal immunization. The NVAC established the Maternal Immunization Working Group (MIWG) in August 2012 to conduct these assessments and provide recommendations for overcoming any identified barriers.
Through a series of teleconferences, electronic communications, and public discussions during the NVAC meetings, the working group identified a number of draft recommendations for consideration by the NVAC. These recommendations represent opportunities for developing and licensing new vaccines for pregnant women. The draft report and draft recommendations from the working group will inform NVAC deliberations as the NVAC finalizes their recommendations for transmittal to the ASH.
On behalf of NVAC, NVPO is soliciting public comment on the draft report and draft recommendations from a variety of stakeholders, including the general public, for consideration by the NVAC as they develop their final recommendations to the ASH. It is anticipated that the draft report and draft recommendations, as revised with consideration given to public comment and stakeholder input, will be presented to the NVAC for adoption in September 2016 at the quarterly NVAC meeting.
Comments for consideration by the NVAC should be received no later than 5:00 p.m. EDT on September 9, 2016.
(1) The draft report and draft recommendations are available on the web at
(2) Electronic responses are preferred and may be addressed to:
(3) Written responses should be addressed to: National Vaccine Program Office, U.S. Department of Health and Human Services, 200 Independence Avenue SW., Room 733G.5, Washington, DC 20201, Attn: HHS Maternal Immunizations c/o Dr. Karin Bok.
Karin Bok, MS, Ph.D., National Vaccine Program Office, Office of the Assistant Secretary for Health, Department of Health and Human Services; telephone (202) 690-1191; fax (202) 260-1165; email
Maternal immunizations have been an effective strategy to protect both the mother and the young infant against vaccine-preventable diseases. However, significant barriers remain that prevent the development and licensing of additional vaccines for use in maternal immunization strategies. Some of those barriers include ethics and policy considerations about including pregnant women in clinical research, the need for continued support of pre-clinical and clinical research on immunity, the impact and safety of immunizations during pregnancy, and educating obstetrical providers about the benefits of immunizations during pregnancy and the importance of including pregnant women in clinical research in order to provide the highest quality of healthcare.
HHS recognized the need to address these barriers and subsequently charged the NVAC with making recommendations that would address the problem. The NVAC separated the task into two sections as it was first necessary to address and understand the demand for maternal immunizations in order to then address the challenges in developing maternal immunizations. The MIWG Phase I focused on understanding the demand for maternal immunization programs by identifying existing patient and provider barriers to maternal immunization, which addressed the first part of the charge. Then, the MIWG Phase II focused on the second part of the charge, which was to identify barriers to and opportunities for developing vaccines for pregnant women and to make recommendations to overcome these barriers. Through a series of teleconferences, electronic communications, and public discussions during the NVAC meetings, the working group identified a number of draft recommendations. These recommendations were categorized into four priority areas that represent opportunities for developing and licensing new vaccines for pregnant women. These four categories include:
NVPO, on behalf of the NVAC MIWG Phase II, requests input on the draft report and draft recommendations. In addition to general comments on the draft report and draft recommendations, NVPO is seeking input on efforts and/or barriers to maternal immunizations not presented in the report where HHS efforts could advance maternal immunization efforts. Please limit your comments to six (6) pages.
HHS invites input from a broad range of stakeholders including individuals and organizations that have interests in maternal immunization efforts and the role of HHS in advancing those efforts.
Examples of potential responders include, but are not limited to, the following:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing and/or co-development in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing and/or co-development.
Invention Development and Marketing Unit, Technology Transfer Center, National Cancer Institute, 9609 Medical Center Drive, Mail Stop 9702, Rockville, MD 20850-9702.
Information on licensing and co-development research collaborations, and copies of the U.S. patent applications listed below may be obtained by contacting: Attn. Invention Development and Marketing Unit, Technology Transfer Center, National Cancer Institute, 9609 Medical Center Drive, Mail Stop 9702, Rockville, MD 20850-9702, Tel. 240-276-5515 or email
Technology description follows.
Detection of Colorectal Cancer Using Two Heme-Related Molecules in Human Feces.
Mortality from colorectal cancer (CRC) can be reduced by detecting the cancer or its precursor, colorectal adenoma (CRA), so that it can be removed at an early stage. Current tests involve screening stool specimens for blood, especially for hemoglobin. The fecal immunochemical test (FIT) for hemoglobin is positive in stool for about 60% of early-stage and 85% of advanced CRC cases, with a false-positive rate of less than 10%. Assays with better accuracy are still needed.
The subject technology is a novel assay that detects the presence or absence of one or both of two heme-related peptides, X-18565 and X-19549 in stool samples. The presence of one, and especially both, of these peptides within the stool sample indicates a high likelihood that CRC or CRA is present within the patient. X-18565 was detected in 67% of CRC cases and the specificity of X-18565 was 99%, as it was detected in only 1% of control patients who did not have CRC (
• Diagnostic for colorectal cancer.
• Assay has high specificity.
• Fresh and frozen samples can be utilized by this assay.
Pre-clinical (
James J. Goedert (NCI) and Rashmi Sinha (NCI).
HHS Reference No. E-198-2014/0-PCT-02.
International PCT Application No. PCT/US2015/038299 (HHS Reference No. E-198-2014/0-PCT-02) filed June 29, 2015 entitled, “Detection of Colorectal Cancer with Two Novel Heme-Related Molecules in Human Feces.”
The NCI seeks licensing or co-development collaborations the would enable eventual commercialization of the diagnostic technology.
Requests for copies of the patent application or inquiries about licensing, research collaborations, and co-development opportunities should be sent to John D. Hewes, Ph.D., email:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Council for Biomedical Imaging and Bioengineering.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), call the toll-free Title V information line at 800-927-7588 or send an email to
In accordance with the December 12, 1988 court order in
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice of Fiscal Year (FY) 2017 Fair Market Rents (FMRs).
Today's notice announces the FY 2017 Fair Market Rents (FMRs) for all areas that reflect the estimated 40th and 50th percentile rent levels trended to April 1, 2017. The Housing Opportunities Through Modernization Act of 2016 (HOTMA) (Pub. L. 114-201, approved July 29, 2016) revises the procedure by which HUD publishes its annual FMRs. Specifically, HUD is no longer required to publish proposed FMRs for comment in the
The FY 2017 FMRs announced in this notice are based on “5-year” data collected by the American Community Survey (ACS) from 2010 through 2014. HUD updated the 5-year data with “one-year” 2014 ACS data for areas where statistically valid one-year ACS data is available. HUD continues to use ACS data in different ways according to the statistical reliability of rent estimates. HUD uses actual and forecast Consumer Price Index (CPI) rent and utility price indices to further update the ACS-derived rents to the middle of the FY 2017 fiscal year. The FY 2017 FMRs continue to use the February 28, 2013, OMB metropolitan area definitions. As noted above, the FY 2017 FMRs are calculated in the same manner used to calculate of the FY 2016 FMRs with the only differences being the use of updated data.
HUD notes that the only area for which HUD announces Small Area FMRs is the Dallas, TX HUD Metro FMR Area. The Small Area FMR Demonstration project with 5 PHA participants concludes on September 30, 2016. The 5 PHAs that participated in the demonstration may continue to be able set their housing choice voucher payment standards based on Small Area FMRs, as discussed in this notice.
HUD invites interested persons to submit comments regarding the FMRs and requests for reevaluation of the FY 2017 FMRs to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410-0001. Communications must refer to the above docket number and title and should contain the information specified in the “Request for Comments” and “Requests for FMR Reevaluations” sections below. There are two methods for submitting public comments and reevaluation requests.
1. Submission of Comments or Reevaluation Requests by Mail. Comments or requests for reevaluation may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at all federal agencies, however, submission of comments by mail often results in delayed delivery. To ensure timely receipt of comments or reevaluation requests, HUD recommends that comments or requests submitted by mail be submitted at least two weeks in advance of the deadline. HUD will make all comments or reevaluation requests received by mail available to the public at
2. Electronic Submission of Comments or Reevaluation Requests. Interested persons may submit comments or reevaluation requests electronically through the Federal eRulemaking Portal at
To receive consideration as public comments or reevaluation requests, comments or requests must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the notice.
No Facsimile Comments or Reevaluation Requests. Facsimile (FAX) comments or requests for FMR reevaluation are not acceptable.
Public Inspection of Public Comments and Reevaluation Requests. All properly submitted comments and reevaluation requests and communications regarding this notice submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments and reevaluation requests must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the Federal Relay Service at 800-877-8339. Copies of all comments and reevaluation requests submitted are available for inspection and downloading at
For technical information on the methodology used to develop FMRs or a listing of all FMRs, please call the HUD USER information line at 800-245-2691 or access the information on the HUD USER Web site
Questions related to use of FMRs or voucher payment standards should be directed to the respective local HUD program staff. Questions on how to conduct FMR surveys may be addressed to Marie L. Lihn or Peter B. Kahn of the Economic and Market Analysis Division, Office of Economic Affairs, Office of Policy Development and Research at HUD headquarters [451 7th Street SW., Room 8208, Washington, DC 20410]; telephone number 202-402-2409 (this is not a toll-free number), or they may be reached at
Electronic Data Availability. This
Section 8 of the USHA (42 U.S.C. 1437f) authorizes housing assistance to aid lower-income families in renting safe and decent housing. Housing assistance payments are limited by FMRs established by HUD for different geographic areas. In the Housing Choice Voucher (HCV) program, the FMR is the basis for determining the “payment standard amount” used to calculate the maximum monthly subsidy for an assisted family (see 24 CFR 982.503). In general, the FMR for an area is the amount that would be needed to pay the gross rent (shelter rent plus utilities) of privately owned, decent, and safe rental housing of a modest (non-luxury) nature with suitable amenities and is typically set at the 40th percentile of the distribution of gross rents. In addition, all rents subsidized under the HCV program must meet reasonable rent standards. HUD's regulations at 24 CFR 888.113 permit the Department to establish 50th percentile FMRs for certain areas.
In addition to the HCV program, FMRs are used to determine initial renewal rents for some expiring project-based Section 8 contracts, to determine initial rents for housing assistance payment contracts in the Moderate Rehabilitation Single Room Occupancy program, and to serve as rent ceilings for rental units in the HOME Investment Partnerships program. HUD also uses FMRs in the calculation of maximum award amounts for Continuum of Care grantees and in the calculation of flat rents in Public Housing units.
Section 8(c)(1) of the USHA, as amended by HOTMA requires the Secretary of HUD to publish FMRs not less than annually. Section 8(c)(1)(A) states, in part, that “[e]ach fair market rental in effect under this subsection shall be adjusted to be effective on October 1 of each year to reflect changes, based on the most recent available data trended so the rentals will be current for the year to which they apply, of rents for existing or newly constructed rental dwelling units, as the case may be, of various sizes and types in the market area suitable for occupancy by persons assisted under this section.”
Section 8(c)(1)(B) also provides that FMRs for an area shall be published not less than annually on the Department's Web site on the World Wide Web. In addition, HUD is required to publish a notice in the
This notice serves as the statutory requirement to provide notice that FY 2017 FMRs are available at
In FY 2016 there were 14 areas using 50th-percentile FMRs. Of these 14 areas, no area completed three years of program participation and were evaluated. Therefore, all 14 areas will continue to operate using 50th percentile FMRs in FY 2017.
In addition, two areas that previously “graduated” from the 50th percentile FMR program, become 50th percentile FMR areas again because voucher tenant concentrations are now above this 25 percent minimum. Under the 50th percentile FMR program, areas that experience a reduction in the concentration of tenants below the 25 percent minimum required to reside in the 5 percent of the census tracts within the FMR area with the largest number of voucher program participants, are evaluated each year after they lose their 50th percentile FMRs. Two of these areas, Bergen-Passaic, NJ HUD Metro FMR Area, and San Diego-Carlsbad-San Marcos, CA MSA, become 50th percentile FMR areas again because voucher tenant concentrations are now above this 25 percent minimum. In addition, a new area, Spokane, WA HUD Metro FMR Area qualified for the first time by registering a significant increase in its concentration measure to get above 25 percent. Based on the current regulations, HUD is including these 3 areas along with the 14 areas from FY 2016 in the use of 50th percentile FMRs in FY 2017.
HUD published a proposed rule titled, “Establishing a More Effective Fair Market Rent System; Using Small Area Fair Market Rents in Housing Choice Voucher Program Instead of the Current 50th Percentile FMRs” on June 16, 2016 (81 FR 39218) that proposes to revise the 50th percentile FMR regulation and replace it with a Small Area FMR based regulation for certain areas.
Two of these proposed Small Area FMR areas will start the three year 50th percentile FMR period in FY 2017 (Bergen-Passaic, NJ and San Diego-Carlsbad-San Marcos, CA) while the third area to begin use of 50th percentile FMRs in FY 2017 (Spokane, WA) is not currently proposed to be a Small Area FMR Area. HUD is specifically seeking comment from these three new 50th percentile areas as to whether being elevated to a 50th percentile area in the FY 2017 FMRs would create operational challenges under HUD's proposed Small Area FMR rule. HUD also request comments on whether the PHAs within these 50th percentile areas would consider requesting a waiver for exemption from 50th percentile status in FY 2017 as a way to address these challenges.
This section provides a brief overview of how HUD computes the FY 2017 FMRs. For complete information on how HUD determines FMR areas, and on how HUD derives each area's FMRs, see the online documentation at
HUD bases the FY 2017 FMRs on the updated metropolitan area definitions published by OMB on February 28, 2013. HUD has not implemented any geography changes for FY 2017; however, several areas have been renamed to avoid confusion. For example, the Morristown, TN HUD Metro FMR Area (HMFA) has been renamed to the Grainger County, TN HMFA to avoid confusion with Morristown, TN MSA. Similarly, HUD has not included any method changes to the calculation of FY 2017 FMRs from what was used in the Final FY 2016 FMRs beyond updates to use the most current data available. For a complete description of the methods used to calculate FY 2016 FMRs, please see the Final FY 2016 FMR notice, published in the
The U.S. Census Bureau released standard tabulations of 5-year ACS data collected between 2010 through 2014 in December of 2015. For FY 2017 FMRs, HUD uses the 2010-2014 5-year ACS data to update the base rents. As in FY 2016, HUD used ACS estimates where the margin of error of the estimate is less than half the size of the estimate itself.
HUD has updated base rents each year based on new 5-year data since FY 2012 for which HUD used 2005-2009 ACS data. HUD is also updating base rents for Puerto Rico FMRs using the 2010-2014 Puerto Rico Community Survey (PRCS); HUD first updated the Puerto Rico base rents in FY 2014 based on 2007-2011 PRCS data collected through the ACS program.
HUD historically based FMRs on gross rents for recent movers (those who have moved into their current residence in the last 24 months) measured directly. However, due to the way Census constructs the 5-year ACS data, HUD developed a new method for calculating recent-mover FMRs in FY 2012. As in FY 2012, HUD assigns all areas a base rent, which is the two-bedroom standard quality 5-year gross rent estimate from the ACS. Because HUD's regulations mandate that FMRs must be published as recent mover gross rents, HUD continues to apply a recent mover factor to the standard quality base rents assigned from the 5-year ACS data. The calculation of the recent mover factor is described below.
Following the assignment of the standard quality two-bedroom rent described above, HUD applies a recent mover factor to these rents. The calculation of the recent mover factor for FY 2017 is updated to use 2014 ACS data but otherwise remains unchanged from the method used in FY 2016.
In general, HUD uses the 1-year ACS-based two-bedroom recent mover gross rent estimate from the smallest geographic area encompassing the FMR area for which the estimate is statistically reliable to calculate the recent mover factor.
HUD calculated base rents for the insular areas using the 2010 decennial census of American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands beginning with the FY 2016 FMRs.
HUD does not use the ACS as the base rent or recent mover factor for 12 areas where the FY 2017 FMR was adjusted based on survey data collected in 2012 for Hood River County, OR, Mountrail County, ND, Ward County, ND, and Williams County, ND,
HUD updates the ACS-based “as of” 2014 rent through the end of 2015 using the annual change in CPI from 2014 to 2015. As in previous years, HUD uses local CPI data coupled with Consumer Expenditure Survey (CEX) data for FMR areas with at least 75 percent of their population within Class A metropolitan areas covered by local CPI data. HUD uses Census region CPI data for FMR areas in Class B and C size metropolitan areas and nonmetropolitan areas without local CPI update factors. Additionally, HUD is using CPI data collected locally in Puerto Rico as the basis for CPI adjustments from 2014 to 2015 for all Puerto Rico FMR areas. Following the application of the appropriate CPI update factor, HUD trends the estimate from 2015 to be as of FY 2017 using forecasts of expected growth in gross rents. In the Final FY 2016 FMRs, HUD used a national forecast of expected changes in gross rents between 2014 and FY 2016. For FY 2017 FMRs, HUD continues to use a national forecast of expected changes in gross rents from 2015 to FY 2017.
HUD calculates the primary FMR estimates for two-bedroom units. This is generally the most common sized rental unit and, therefore, the most reliable to survey and analyze. Formerly, after each Decennial Census, HUD calculated rent relationships between two-bedroom units and other unit bedroom counts and used them to set FMRs for other units. HUD did this because it is much easier to update two-bedroom estimates and to use pre-established cost relationships with other unit bedroom counts than it is to develop independent FMR estimates for each unit bedroom count. When calculating FY 2013 FMRs, HUD updated the bedroom ratio adjustment factors using 2006-2010 5-year ACS data. The bedroom ratio methodology used in this update was the same methodology that was used when calculating bedroom ratios using 2000 Census data. The bedroom ratios HUD used in the calculation of FY 2017 FMRs have been updated using average data from three five-year ACS data series (2008-2012, 2009-2013 and 2010-2014).
HUD establishes bedroom interval ranges based on an analysis of the range of such intervals for all areas with large enough samples to permit accurate bedroom ratio determinations. HUD sets these ranges as follows: Efficiency FMRs are constrained to fall between 0.63 and 0.83 of the two-bedroom FMR; one-bedroom FMRs must be between 0.75 and 0.87 of the two-bedroom FMR; three-bedroom FMRs must be between 1.15 and 1.34 of the two-bedroom FMR; and four-bedroom FMRs must be between 1.28 and 1.64 of the two-bedroom FMR. (HUD sets these upper limits for the three-bedroom and four-bedroom FMR ratios without regard to the adjustments discussed in the next paragraph.) HUD adjusts bedroom rents for a given FMR area if the differentials between bedroom-size FMRs were inconsistent with normally observed patterns (
HUD further adjusts the rents for three-bedroom and larger units to reflect HUD's policy to set higher rents for these units. This adjustment is intended to increase the likelihood that the largest families, who have the most difficulty in leasing units, will be successful in finding eligible program units. The adjustment adds 8.7 percent to the unadjusted three-bedroom FMR estimates and adds 7.7 percent to the unadjusted four-bedroom FMR estimates. HUD derives FMRs for unit bedroom counts larger than four by adding 15 percent to the four-bedroom FMR for each extra bedroom. For example, the FMR for a five-bedroom unit is 1.15 times the four-bedroom FMR, and the FMR for a six-bedroom unit is 1.30 times the four-bedroom FMR. FMRs for single-room occupancy units are 0.75 times the zero-bedroom (efficiency) FMR.
For low-population, nonmetropolitan counties with small or statistically insignificant data for any two of the three 5-year ACS standard quality rents series used in the average, HUD uses state non-metropolitan data to determine bedroom ratios for each unit bedroom count. HUD made this adjustment to protect against unrealistically high or low FMRs due to insufficient sample sizes.
The FMR HUD uses to establish payment standard amounts for the rental of manufactured home spaces in the HCV program is 40 percent of the FMR for a two-bedroom unit.
All approved exceptions to these rents that were in effect in FY 2016 were updated to FY 2017 using the same data used to estimate the HCV program FMRs. If the result of this computation was higher than 40 percent of the new two-bedroom rent, the exception remains and is listed in Schedule D online. The FMR area definitions HUD establishes for the rental of manufactured home spaces are the same as the area definitions established for the other FMRs.
PHAs in the Dallas, TX HUD Metro FMR Area (HMFA), continue to use Small Area Fair Market Rents (SAFMRs) per the terms of court entered settlement. These FMRs are listed in the Schedule B addendum. PHAs who had been participating in HUD's SAFMR Demonstration may request a waiver of HUD's existing payment standard regulations to continue to use Small Area FMRs after the expiration of their demonstration agreements. HUD will work with these PHAs to effectuate the required waivers.
HUD calculates SAFMRs using a rent ratio determined by dividing the median gross rent across all bedrooms for the small area (a ZIP code) by the similar
HUD is seeking public comments on the methods it uses to calculate FY 2017 FMRs including Small Area FMRs, and FMR levels for specific areas. Due to its current funding levels, HUD no longer has sufficient resources to conduct local surveys of rents to address comments filed regarding the FMR levels for specific areas. HUD continually strives to calculate FMRs that meet the statutory requirement of using “the most recent available data” while also serving as an effective program parameter.
While HUD is making no changes in the methodology used to estimate the FY 2017 FMRs from the methods HUD used in calculating the FY 2016 FMRs, HUD is interested in making improvements in FMR estimation methods in the future. As noted earlier, the FMR procedures enacted in Section 8(c)(1)(B) of HOTMA require that HUD publish a notice in the
HUD anticipates publishing a
As amended by HOTMA, Section 8(c)(1)(B) states, in part that HUD “shall establish a procedure for PHAs and other interested parties to comment on such fair market rentals and to request, within a time specified by the Secretary, reevaluation of the fair market rentals in a jurisdiction before such rentals become effective.” PHAs or other interested parties interested in requesting HUD reevaluation of its FY 2017 FMRs must follow the following procedures:
1. By the end of the comment period, such reevaluation requests must be submitted publicly through
2. In order for a reevaluation to occur, the requestor(s) must supply HUD with data more recent than the 2014 American Community Survey data using the survey guidance available at
3. On or about October 3, HUD will post a list, at
4. Data for reevaluations must be supplied to the Department by Friday January 6, 2017. On Monday January 9, 2017, HUD will post at
5. HUD will use the data delivered by January 6, 2017 to reevaluate the FMRs and following the reevaluation, will post revised FMRs with an accompanying
6. Any data supporting a change in FMRs supplied after January 6, 2017, or that was not submitted in connection with a request for reevaulation of the FY2017 FMRs for an area, will be incorporated into FY 2018 FMRs.
Questions on how to conduct FMR surveys may be addressed to the individuals listed in the
For small metropolitan areas without one-year ACS data and nonmetropolitan counties, HUD has developed a method using mail surveys that is discussed on the FMR Web page:
While HUD has not developed a specific method for mail surveys in areas with 1-year ACS data, HUD would apply the standard established for Random-Digit Dialing (RDD) telephone rent surveys. HUD will evaluate these survey results to determine whether they would establish a new FMR statistically different from the current FMR, which means that the survey confidence interval must not include the FMR. The survey should collect results based on 200 one-bedroom and two-bedroom eligible recent mover units to provide a small enough confidence interval for significant results in large market mail surveys. Areas with statistically reliable 1-year ACS data generally are not considered to be good candidates for local surveys due to the size and completeness of the ACS process.
Other survey methods are acceptable in providing data to support reevaluation requests if the survey
PHAs in nonmetropolitan areas may, in certain circumstances, conduct surveys of groups of counties. HUD must approve all county-grouped surveys in advance. PHAs are cautioned that the resulting FMRs may not be identical for the counties surveyed; each individual FMR area will have a separate FMR based on the relationship of rents in that area to the combined rents in the cluster of FMR areas. In addition, PHAs are advised that in counties where FMRs are based on the combined rents in the cluster of FMR areas HUD will not revise their FMRs unless the grouped survey results show a revised FMR statistically different from the combined rent level.
Survey samples should preferably be randomly drawn from a complete list of rental units for the FMR area. If this is not feasible, the selected sample must be drawn to be statistically representative of the entire rental housing stock of the FMR area. Surveys must include units at all rent levels and be representative by structure type (including single-family, duplex, and other small rental properties), age of housing unit, and geographic location. The current 5-year ACS data should be used as a means of verifying if a sample is representative of the FMR area's rental housing stock.
A PHA or contractor that cannot obtain the recommended number of sample responses after reasonable efforts should consult with HUD before abandoning its survey; in such situations, HUD may find it appropriate to relax normal sample size requirements.
The Department has developed guidance on how to provide data-supported comments on or requests for reevaluation of Small Area FMRs using HUD's special tabulations of the distribution of gross rents by bedroom unit size for ZIP Code Tabulation Areas. This guidance is available at
HUD will consider increasing manufactured home space FMRs where public comment demonstrates that 40 percent of the two-bedroom FMR is not adequate. In order to be accepted as a basis for revising the manufactured home space FMRs, comments must include a pad rental survey of the mobile home parks in the area, identify the utilities included in each park's rental fee, and provide a copy of the applicable public housing authority's utility schedule.
As stated earlier in this notice, HUD is required to use the most recent data available when calculating FMRs. Therefore, in order to re-evaluate an area's FMR, HUD requires more current rental market data than the 2014 ACS. HUD encourages a PHA or other interested party that believes the FMR in their area is incorrect to file a comment even if they do not have the resources to provide market-wide rental data. In these instances, HUD will use the comments, should survey funding be restored, when determining the areas HUD will select for HUD-funded local area rent surveys.
This Notice involves the establishment of fair market rent schedules, which do not constitute a development decision affecting the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this Notice is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Accordingly, the Fair Market Rent Schedules, which will not be codified in 24 CFR part 888, are available at
a. Metropolitan Areas—Most FMRs are market-wide rent estimates that are intended to provide housing opportunities throughout the geographic area in which rental-housing units are in direct competition. HUD is using the metropolitan Core-Based Statistical Areas (CBSAs), which are made up of one or more counties, as defined by the Office of Management and Budget (OMB), with some modifications. HUD is generally assigning separate FMRs to the component counties of CBSA Micropolitan Areas.
b. Modifications to OMB Definitions—Following OMB guidance, the estimation procedure for the FY 2017 FMRs incorporates the OMB definitions of metropolitan areas based on the CBSA standards as implemented with 2000 Census data and updated by the 2010 Census in February 28, 2013. The adjustments made to the 2000 definitions to separate subparts of these areas where FMRs or median incomes would otherwise change significantly are continued. To follow HUDs policy of providing FMRs at the smallest possible area of geography, no counties were added to existing metropolitan areas due to recent updates in metropolitan area definitions. All counties added to metropolitan areas will still be treated as separate counties. All metropolitan areas that have at least one subarea will also receive a subarea, that is the rents from a county that is a subarea will not be used for the remaining metropolitan subarea rent determination.
The specific counties and New England towns and cities within each state in MSAs and HMFAs were not changed by the February 28, 2013 OMB metropolitan area definitions. These areas are listed in Schedule B, available online at
Schedule B, available at
a. The FMR areas in the online Schedule B are listed alphabetically by metropolitan FMR area and by nonmetropolitan county within each state. The exception FMRs for manufactured home spaces in Schedule
b. The constituent counties (and New England towns and cities) included in each metropolitan FMR area are listed immediately following the listings of the FMR dollar amounts. All constituent parts of a metropolitan FMR area that are in more than one state can be identified by consulting the listings for each applicable state.
c. Two nonmetropolitan counties are listed alphabetically on each line of the non-metropolitan county listings.
d. The New England towns and cities included in a nonmetropolitan county are listed immediately following the county name.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments/information.
We, the U.S. Fish and Wildlife Service (Service), have received an application for an incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (Act). Orange County Utilities Department, is requesting a 5-year ITP. We request public comment on the permit application and accompanying proposed habitat conservation plan (HCP), as well as on our preliminary determination that the plan qualifies as low effect under the National Environmental Policy Act (NEPA). To make this determination, we used our environmental action statement and low-effect screening form, which are also available for review.
To ensure consideration, please send your written comments by September 26, 2016.
If you wish to review the application and HCP, you may request documents by email, U.S. mail, or phone (see below). These documents are also available for public inspection by appointment during normal business hours at the office below. Send your comments or requests by any one of the following methods.
Zakia Williams, telephone: (904) 731-3119; email:
Section 9 of the Act (16 U.S.C. 1531
Regulations governing incidental take permits for threatened and endangered species are at 50 CFR 17.32 and 17.22, respectively. The Act's take prohibitions do not apply to federally listed plants on private lands unless such take would violate State law. In addition to meeting other criteria, an incidental take permit's proposed actions must not jeopardize the existence of federally listed fish, wildlife, or plants.
Orange County Utilities Department, is requesting take of approximately 5.0 acres of occupied sand skink foraging and sheltering habitat incidental to construction of a road extension, and they seek a 5-year permit. The 41.7-acre project is located on parcel number 09-23-27-0000-00-006 within Section 16 and 17, Township 23 South, and Range 27 East, Orange County, Florida. The project includes construction of a road extension and associated infrastructure. The applicant proposes to mitigate for the take of the sand skink by the purchase of 10.0 mitigation credits from the Scrub Conservation Bank.
We have determined that the applicant's proposal, including the proposed mitigation and minimization measures, would have minor or negligible effects on the species covered in their HCP. Therefore, our proposed issuance of the requested ITP qualifies as a categorical exclusion under the National Environmental Policy Act, as provided by Department of the Interior implementing regulations in part 46 of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, and 46.215). A low-effect HCP is one involving (1) Minor or negligible effects on federally listed or candidate species and their habitats, and (2) minor or negligible effects on other environmental values or resources.
We will evaluate the HCP and comments we receive to determine whether the ITP application meets the requirements of section 10(a) of the Act (16 U.S.C. 1531
If you wish to comment on the permit application, HCP, and associated documents, you may submit comments by any one of the methods in
Before including your address, phone 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 comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under Section 10 of the Act and NEPA regulations (40 CFR 1506.6).
Fish and Wildlife Service, Interior.
Notice of issuance of permits.
We, the U.S. Fish and Wildlife Service (Service), have issued the following permits to conduct certain activities with endangered species, marine mammals, or both. We issue these permits under the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA).
Brenda Tapia, U.S. Fish and Wildlife Service, Division of Management Authority, Branch of Permits, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041; fax 703-358-2281.
Brenda Tapia, 703-358-2104 (telephone); 703-358-2281 (fax);
On the dates below, as authorized by the provisions of the ESA (16 U.S.C. 1531
Documents and other information submitted with these 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: U.S. Fish and Wildlife Service, Division of Management Authority, Branch of Permits, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041; fax (703) 358-2281.
Bureau of Indian Affairs, Interior.
Notice.
This notice announces the extension of the Class III gaming compact between the Crow Creek Sioux Tribe and the State of South Dakota.
Effective August 26, 2016.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Assistant Secretary—Indian Affairs, Washington, DC 20240, (202) 219-4066.
An extension to an existing tribal-state Class III gaming compact does not require approval by the Secretary if the extension does not modify any other terms of the compact. See to 25 CFR 293.5. The Crow Creek Sioux Tribe and the State of South Dakota have reached an agreement to extend the expiration of their existing Tribal-State Class III gaming compact until December 31, 2016. This publishes notice of the new expiration date of the compact.
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to reopen the request for public nominations for the Bureau of Land Management (BLM) Alaska Resource Advisory Council (RAC). The RAC provides advice and recommendations to the BLM regarding land management issues. BLM Alaska will accept public nominations for 45 days after the publication of this notice.
All nominations must be received no later than October 11, 2016.
June Lowery, Alaska State Office, BLM, 222 West 7th Avenue, #13, Anchorage, AK 99513, (907) 271-3130.
June Lowery, BLM Alaska, 222 West 7th Avenue, # 13, Anchorage, AK 99513, (907) 271-3130.
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member citizen-based advisory councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs are found at 43 CFR subpart 1784 and include the following three membership categories:
Those who submitted a nomination in response to the first call for nominations, published in the
Simultaneous with this notice, the BLM Alaska State Office will issue a press release providing additional information for submitting nominations, with specifics about the number and categories of member positions available for the RAC.
Nominations and completed applications for the RAC should be sent to the office listed under the above
43 CFR 1784.4-1
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to request a second call for nominations for five open positions on the Bureau of Land Management (BLM) Utah Resource Advisory Council (RAC) because we did not receive a sufficient number of applications from the first call for nominations. The RAC provides advice and recommendations to the BLM on land use planning and management of the National System of Public Lands within their geographic areas. The BLM will accept public nominations for 30 days after the publication of this notice.
All nominations must be received no later than September 26, 2016.
Lola Bird, Public Affairs Specialist, Bureau of Land Management, Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101.
Lola Bird, Public Affairs Specialist, Bureau of Land Management Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101; by telephone (801) 539-4033 or by email:
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member citizen-based advisory councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs are found at 43 CFR subpart 1784 and include the following three membership categories:
Two positions in Category One—Public land ranchers and representatives of organizations associated with energy and mineral development, the timber industry, transportation or rights-of-way, off-highway vehicle use, and commercial recreation.
Two positions in Category Two—Representatives of nationally or regionally recognized environmental organizations, archaeological and historical organizations, dispersed recreation activities, and wild horse and burro organizations.
One position in Category Three—Representatives of state, county, or local elected office; representatives and employees of a state agency responsible for the management of natural resources; representatives of Indian Tribes within or adjacent to the area for which the RAC is organized; representatives and employees of academic institutions who are involved in natural sciences; and the public-at-large.
Individuals may nominate themselves or others to serve on an advisory council. Nominees, who must be residents of the state or states where the RAC has jurisdiction, will be judged on the basis of their training, education, and knowledge of the council's geographical area. Nominees should also demonstrate a commitment to consensus building and collaborative decision-making. Individuals who are Federally-registered lobbyists are ineligible to serve on all FACA and non-FACA boards, committees, or councils in an individual capacity. The term “individual capacity” refers to individuals who are appointed to exercise their own individual best judgment on behalf of the government, such as when they are designated Special Government Employees, rather than being appointed to represent a particular interest. All nominations must be accompanied by letters of reference from any represented interests or organizations, a completed RAC application, and any other information that speaks to the nominee's qualifications.
Those who have already submitted a nomination in response to the first call for nominations (published in the
The BLM-Utah will consult with the Governor's office before forwarding its recommendations to the Secretary of the Interior for a final decision.
Simultaneous with this notice, BLM-Utah will issue a press release providing additional information for submitting nominations.
43 CFR 1784.4-1.
Bureau of Land Management, Interior.
Notice of Availability
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy Act of 1976 (FLPMA), as amended, the Bureau of Land Management (BLM) has prepared a Final Environmental Impact Statement (EIS) for the Sheep Mountain Uranium Project and by this notice is announcing its availability.
The BLM will not issue a final decision on the proposal for a minimum of 30 days after the date that the Environmental Protection Agency publishes its Notice of Availability in the
Copies of the Sheep Mountain Uranium Project Final EIS are available for public inspection in the BLM Lander Field Office, 1335 Main Street, Lander, Wyoming; and in the BLM Wyoming State Office, 5353 Yellowstone, Cheyenne, Wyoming. Interested persons may also review the Final EIS on the Internet at the project Web site at
Chris Krassin, Project Manager, telephone 307-332-8400; address Lander Field Office, 1335 Main Street, Lander, Wyoming 82520; email
Titan Uranium USA Inc., a wholly owned subsidiary of Titan Uranium Inc., submitted a 43 CFR 3809 plan of operations to the BLM Lander Field Office (LFO) for the Sheep Mountain Uranium Project (Project) in Fremont County, Wyoming on June 16, 2011. On February 29, 2012, Energy Fuels Inc. acquired Titan Uranium Inc. and all of its subsidiaries are now wholly-owned subsidiaries of Energy Fuels Resources (USA) Inc. (Energy Fuels). Energy Fuels will continue as the owner and operator of the Project. Energy Fuels submitted a revised Plan of Operations to the BLM on July 9, 2012 and August 27, 2013.
The Project is located 8 miles south of Jeffrey City, Wyoming, in south-central Fremont County, in the Crooks Gap-Green Mountain Mining District, which was extensively mined starting in the 1950s. This area lies 62 miles southeast of Riverton, 67 miles north of Rawlins, and 105 miles southwest of Casper. The Project is within the active State of Wyoming Permit to Mine 381C administered by the Wyoming Department of Environmental Quality-Land Quality Division (WDEQ-LQD). Energy Fuels' revised application to Permit to Mine 381C was approved in July 2015. Energy Fuels is currently considering applying for a U.S. Nuclear Regulatory Commission (NRC) Source Materials License.
Energy Fuels proposes to explore for and develop uranium reserves to produce approximately 1.0 million to 2.0 million pounds of U
The Final EIS addresses the direct, indirect and cumulative impacts of the proposed action, the No Action Alternative and the BLM Mitigation Alternative.
The No Action Alternative, as required by NEPA, describes conditions that would occur if the proposed Project were denied. The No Action Alternative includes reclamation by Energy Fuels of approximately 144 acres as required by the WDEQ-LQD Permit to Mine 381C, and the reclamation of the existing McIntosh Pit by the WDEQ-Abandoned
The BLM Mitigation Alternative would utilize the same conventional mining techniques over the same period as under the Proposed Action Alternative, but modifications to the proposed reclamation plan would be required. In addition, the BLM Mitigation Alternative would identify opportunities to apply hierarchical mitigation strategies for on-site and regional mitigation strategies and identify areas appropriate to apply landscape-level conservation and management actions to achieve resource objectives.
The Notice of Intent to prepare an EIS was published in the
Notable changes to the Draft EIS based on comments received include the following:
• Clarified the description of specific aspects of the Proposed Action, including revisions to the WDEQ-LQD Mine Permit 381C, storm-water management, disposal of dewatered waste water under the Wyoming Pollutant Discharge Elimination System (WYPDES), and roles and responsibilities of permitting agencies in allowing off-site versus on-site processing.
• Reviewed and revised the analysis of impacts to water resources as a result of the WYPDES permit and storm-water management plans under the Proposed Action Alternative for consistency with Mine Permit 381C.
• Added details to the analysis of impacts to Greater Sage-Grouse, particularly in regards to hauling material off site which included analyzing alternative haul routes to the potential off-site processing facility.
• Added details to the analysis of other resources such as public health and safety, wetlands, vegetation, soils, water, climate and air quality.
Following a 30-day Final EIS availability and review period, a Record of Decision (ROD) will be issued. The decision reached in the ROD is subject to appeal to the Interior Board of Land Appeals. The 30-day appeal period begins with the issuance of the ROD.
40 CFR 1506.6, 40 CFR 1506.10
Bureau of Land Management, Interior.
Notice of Intent.
The Bureau of Land Management (BLM), Gunnison Field Office, Gunnison, Colorado, intends to establish an overnight camping fee at the Oh Be Joyful Campground.
Comments on the proposed fee changes must be received or postmarked by November 25, 2016 and include a legible full name and address. Effective February 26, 2017, the BLM will initiate fee collection at the Oh Be Joyful Campground, unless the BLM publishes a
Documents concerning this fee change may be reviewed at the Gunnison Field Office, 210 W. Spencer Avenue, Suite A, Gunnison, CO 81230. Written comments may be mailed or delivered to the same address; faxed to 970-642-4990; or emailed to
Stuart Schneider, Project Manager, at the address above, or phone (970) 642-4964. The Business Plan and information concerning the proposed fee schedule are available at
The Oh Be Joyful Campground is a destination campground for people visiting in the Gunnison Basin near Crested Butte, Colorado. The BLM's overall goal is to maintain the area's recreational experiences, quality social setting and overnight camping that require substantial Federal investment, while protecting natural resources. The BLM is committed to finding the proper balance between public use and the protection of public lands and resources. The campground qualifies as a site wherein visitors can be charged an expanded amenity fee for overnight use, authorized under Section 803(g)(2)(h) of the Recreation Enhancement Act (REA), 16 U.S.C. 6801
The BLM welcomes public comments on this proposal. 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.
16 U.S.C. 6803 and 43 CFR part 2932.
National Park Service, Interior.
Cancellation of meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act, (5 U.S.C. Appendix 1-16), that the September 7, 2016, meeting of the Wekiva River System Advisory Management Committee previously announced in the
Jaime Doubek-Racine, Community Planner and Designated Federal Official, Rivers, Trails, and Conservation Assistance Program, Florida Field Office, Southeast Region, 5342 Clark Road, PMB #123, Sarasota, Florida 34233, or via telephone (941) 685-5912.
The Wekiva River System Advisory Management Committee was established by Public Law 106-299 to assist in the development of the comprehensive management plan for the Wekiva River System and provide advice to the Secretary of the Interior in carrying out management responsibilities of the Secretary under the Wild and Scenic Rivers Act (16 U.S.C. 1274).
Notice.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3506(c)(2)(A). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Office of Federal Contract Compliance Programs is soliciting comments concerning its proposal to renew the Office of Management and Budget (OMB) approval of the following information collections: “38 U.S.C. 4212, Vietnam Era Veterans' Readjustment Assistance Act, as Amended” (OMB Control No. 1250-0004) and “29 U.S.C. 793, Section 503 of the Rehabilitation Act of 1973, as Amended” (OMB Control No. 1250-0005). The current OMB approval for these information collections expires on January 31, 2017. A copy of the proposed information collection request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the addresses section below on or before October 25, 2016.
You may submit comments, identified by Control Number 1250-0004 and/or 1250-0005, by one of the following methods:
Debra Carr, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW., Room C3325, Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-1337 (TTY) (these are not toll-free numbers). Copies of this notice may be obtained in alternative formats (
I.
• Executive Order 11246, as amended (E.O. 11246)
• Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503)
• Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA)
These authorities prohibit employment discrimination by Federal contractors and subcontractors and require them to take affirmative action to ensure that equal employment opportunities are available regardless of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. Additionally, federal contractors and subcontractors are prohibited from discriminating against applicants and employees for asking about, discussing, or sharing information about their pay or, in certain circumstances, the pay of their co-workers. This information collection request covers the recordkeeping and third party disclosure requirements for Section 503 and VEVRAA. OFCCP is not proposing to collect new information with this renewal.
Section 503 prohibits employment discrimination against applicants and employees because of physical or mental disability and requires affirmative action to ensure that persons are treated without regard to disability. Section 503 applies to Federal contractors and subcontractors with contracts in excess of $15,000.
VEVRAA prohibits employment discrimination against protected veterans and requires affirmative action to ensure that persons are treated without regard to their status as a protected veteran. VEVRAA applies to Federal contractors and subcontractors with contracts of $150,000 or more.
II.
• 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,
III.
The Office of Federal Contract Compliance Programs (OFCCP) requests Office of Management and Budget (OMB) approval for 5,427,933 hours in combined recordkeeping and third party disclosure burden hours for compliance by federal contractors and subcontractors with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212) (VEVRAA). This compares with 10,546,660 hours in the most recently approved clearance request in 2014, a decrease of 5,118,727 (5,427,933 −10,546,660 = −5,118,727) hours. This decrease reflects an adjustment in the number of affected federal contractors, which was overestimated in the previous information collection.
OFCCP will not be collecting any new or different information. The burden hours primarily represent those federal contractors and subcontractors that are required under VEVRAA to list their job openings with the appropriate employment service delivery system and to develop, update, and maintain an affirmative action program. Reporting requirements under VEVRAA are not included in this information collection, but rather, are included in the Scheduling Letter and Itemized Listing information collection request for nonconstruction supply and service Federal contractors, separately approved under OMB Control Number 1250-0003.
As explained in Section 15 of this supporting statement, the decrease in burden hours for this information collection is primarily a result of OFCCP's proposal to use data from
The Office of Federal Contract Compliance Programs (OFCCP) is responsible for administering three equal opportunity laws that prohibit discrimination based on particular protected categories and require affirmative action to provide equal employment opportunities:
• Executive Order 11246, as amended (E.O. 11246),
• Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503),
• Vietnam Era Veterans' Readjustment Assistance Act of 1974,
E.O. 11246 prohibits covered federal contractors
Section 503 prohibits employment discrimination against applicants and employees based on disability and requires contractors to take affirmative action to employ, advance in employment, and otherwise treat qualified individuals without discrimination based on physical or mental disabilities. Its requirements apply to contractors with a Government contract in excess of $15,000.
VEVRAA prohibits employment discrimination against protected veterans, namely disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces service medal veterans, and requires contractors to take affirmative action to employ, advance in employment, and otherwise treat qualified individuals without discrimination based on their status as a protected veteran. Its requirements apply to contractors with a Government contract of $150,000 or more.
OFCCP promulgated regulations implementing these programs consistent with the Administrative Procedure Act. These regulations are found at Title 41 of the Code of Federal Regulations (CFR) in Chapter 60 and are accessible on the Web at
For purposes of OFCCP's recordkeeping and reporting requirements, the agency divides the obligations under these authorities into multiple information collection requests (ICRs).
The reporting requirements under VEVRAA are not included in this information collection, but rather, are included in the Scheduling Letter and Itemized Listing ICR for nonconstruction supply and service contractors, separately approved under OMB Control Number 1250-0003.
Due to the pending expiration of OMB No. 1250-0004, OFCCP is seeking approval of the agency's VEVRAA recordkeeping and third party disclosure requirements.
These regulations establish the basic nondiscrimination and affirmative action requirements under the VEVRAA program. They define coverage, specify clauses to be included in contracts, provide procedures to ensure compliance by covered contractors, specify reporting and recordkeeping requirements, establish a benchmark for veteran representation in the workforce, and outline the basic requirements for AAPs under VEVRAA.
Section 60-300.5 describes the equal opportunity clause in Federal contracts. Paragraphs 2 through 6 of the clause pertain to the mandatory job listing requirements. Each covered contractor must list job openings with the appropriate state or local employment service delivery system (ESDS) in a format permitted by the ESDS. Each covered contractor must also provide and update as necessary information to the appropriate ESDS, including: Its status as a Federal contractor; that it desires priority referrals of protected veterans from the ESDS; the name and location of each hiring location within the state; and the contact information for the contractor official responsible for hiring at each location as well as any external job search organizations the contractor uses to assist in its hiring. Each contractor is required to include the EO clause in each of its subcontracts of $150,000 or more, although the clause may be incorporated by reference or operation.
Section 60-300.40 requires contractors with 50 or more employees and a contract of $150,000 or more to develop a VEVRAA AAP.
Section 60-300.42 requires contractors to invite job applicants at the pre-offer and post-offer stages to self-identify as protected veterans. The invitations to self-identify must state that the contractor is required to take affirmative action to employ and advance in employment protected veterans, and that the information sought is being requested on a voluntary basis.
Section 60-300.44 identifies the required elements of an AAP, including those listed below.
• Develop and include an equal opportunity policy statement in the AAP.
• Review personnel processes to ensure that qualified protected veterans are provided equal opportunity
• Review all physical and mental job qualification standards to ensure that, to the extent any tend to screen out qualified disabled veterans, that the standards are job-related and consistent with business necessity.
• Provide reasonable accommodations for physical and mental limitations.
• Develop and implement procedures to ensure that employees are not harassed because of their veteran status.
• Develop procedures and practices to disseminate affirmative action policies, both internally and externally, and undertake appropriate outreach and positive recruitment activities designed to effectively recruit protected veterans.
• Establish an audit and reporting system to measure the effectiveness of the AAP.
• Designate a responsible official to implement and oversee the AAP.
• Provide training to all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes to ensure that the commitments in the contractor's affirmative action program are implemented.
• Conduct data collection analysis pertaining to applicants and hires on an annual basis and maintain them for a period of three (3) years, including: The total number of job openings and total number of jobs filled; the total number of applicants for all jobs; the number of protected veteran applicants hired; the total number of applicants hired; and the number of applicants who self-identified as protected veterans or who are otherwise known as protected veterans.
Section 60-300.45 requires contractors to either adopt the a hiring benchmark equal to the national percentage of veterans in the civilian labor force, or establish a hiring benchmark for protected veterans taking into account five factors specified in the regulation.
Section 60-300.60 identifies the investigative methods OFCCP uses to evaluate a contractor's compliance with the agency's regulations. These methods range from an in-depth comprehensive evaluation of the contractor's employment practices (
The EO Clause, located at section 60-300.5, requires contractors to list job openings with the appropriate state or local ESDS in a format permitted by the ESDS. Each covered contractor must also provide and update as necessary information to the appropriate ESDS, including: Its status as a Federal contractor; that it desires priority referrals of protected veterans from the ESDS; the name and location of each hiring location within the state; and the contact information for the contractor official responsible for hiring at each location as well as any external job search organizations the contractor uses to assist in its hiring. The mandatory job listing requirement is a critical component to helping veterans find work with federal contractors. Providing the ESDS with the name and location of the contractor's hiring locations and contact information enables the ESDS to develop a centralized list of federal contractors and ensures that they have appropriate contact information if there are any questions that need to be resolved in the job listing or priority referral process.
Section 60-300.42 outlines the requirements for contractors' obligations to invite individuals to self-identify as a protected veteran. This process enables the contractor and OFCCP to collect valuable data on the number of protected veterans who apply for or are hired into federal contractor positions. This allows for assessment of the effectiveness of the contractor's recruitment and affirmative action efforts over time, and promotes successful recruitment and affirmative action.
Section 60-300.44 describes the required contents of a contractor's written affirmative action program. During a compliance evaluation, OFCCP reviews the contractor's affirmative action program to determine whether the contractor is complying with its obligations not to discriminate in employment and to take affirmative action to ensure equal employment opportunity.
Section 60-300.45 requires contractors to set a benchmark for hiring protected veterans by using the national average for the number of veterans in the civilian labor force which OFCCP will provide (and periodically update) on its public Web site, or by setting a benchmark that fits the company's specific needs. This requirement provides contractors with a yardstick by which they can objectively measure the effectiveness of their efforts.
In general, under OFCCP regulations each contractor develops its own methods for collecting and maintaining information. Contractors have the option to use methods that best suit their needs as long as they can retrieve and provide OFCCP with data upon request during a compliance evaluation.
The majority of contractors are repeat contractors. Since they are subject to OFCCP's regulatory requirements year after year, most have developed their information technology systems to generate the data required by OFCCP regulations.
Information technology systems used to comply with data requirements under OFCCP's VEVRAA regulations should be capable of performing the below functions.
In addition, OFCCP provides compliance assistance to all contractors, including smaller contractors by leveraging information technology. For example, OFCCP's Web site provides access to compliance resources and information, including the following.
OFCCP believes that advances in technology make contractor compliance with the recordkeeping and reporting requirements easier and less burdensome. However, in the absence of empirical data, OFCCP is unable to quantify the impact of improved information technology and thus, OFCCP does not include it in the calculation of burden hours.
According to the Government Paperwork Elimination Act (GPEA, Pub. L. 105-277, 1998), by October 2003, Government agencies must generally provide the option of using and accepting electronic documents and signatures, and electronic recordkeeping, where practicable. OFCCP fulfills its GPEA requirements by permitting contractors to submit AAPs and supporting documentation via email or other electronic format.
The recordkeeping requirements contained in this request result exclusively from the implementation of VEVRAA. This authority uniquely empowers the Secretary of Labor, and by a Secretary's Order, the OFCCP, to require the collection, analysis, and reporting of data and other information in connection with the enforcement of the law and regulations requiring contractors to take affirmative action to ensure equal employment opportunity. No duplication of effort exists because no other Government agency has these specific data collection requirements.
While contractors maintain other employment data in the normal course of business, affirmative action programs under VEVRAA are unique in that contractors create them specifically to meet the requirements of OFCCP regulations. This comprehensive document is not available from any other source. Therefore, no duplication of effort exists.
OFCCP's information collection does not have a significant economic impact on a substantial number of small entities. OFCCP minimizes the information collection and recordkeeping burden on a significant number of small businesses by exempting contractor establishments with fewer than 50 employees from the AAP requirement. However, once OFCCP's authority covers one contractor's establishment, all of its employees must be accounted for in an AAP whether or not each of the contractor's establishments meet the minimum 50 employees threshold.
The requirements outlined in this ICR ensure that covered contractors meet their equal opportunity obligations to protected veterans. The nondiscrimination requirements of VEVRAA apply to all covered contractors.
If this information is collected less frequently than required, it could compromise OFCCP's enforcement of VEVRAA and its implementing regulations. OFCCP reviews contractor compliance through its compliance evaluation process.
As noted under Control Number 1250-0003, the older the data, the greater the chances that more qualified workers are the victims of any discrimination that has occurred and that the discrimination continues for a longer period. A consequence of such older data may be that the scope of the violation, resulting harm and the overall burden of contractor compliance are greater.
There are no special circumstances for the collection of this information.
OFCCP publishes all regulations containing recordkeeping or reporting requirements in the
OFCCP will address comments received from the public under this paragraph at the end of the 60-day
OFCCP provides neither payments nor gifts to respondents.
Contractors who submit the required information may view it as sensitive information. OFCCP will evaluate all information pursuant to the public inspection and disclosure provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Department of Labor's implementing regulations at 29 CFR part 70. OFCCP requires that a contractor affected by a FOIA disclosure request be notified in writing and no decision to disclose information is made until the contractor has an opportunity to submit objections to the release of the information. Furthermore, it is OFCCP's position that it does not release any data obtained during the course of a compliance evaluation until the matter is completed.
VEVRAA requires contractors to invite applicants to self-identify as a protected veteran and indicate whether a reasonable accommodation is required. The protected veteran category includes disabled veterans. Generally, a contractor informs its protected veteran employees that it collects and maintains their data strictly for affirmative action purposes. Race and sex data is not required under VEVRAA.
The following is a summary of the methodology for the calculation of the recordkeeping and third party disclosure requirements for OFCCP's VEVRAA ICR.
As noted at the beginning of this supporting statement, the total in combined recordkeeping and third party disclosure burden hours for this ICR (5,398,974) is less than total number of hours approved in 2014 (10,546,660), as detailed in Sec. 15 below.
Paragraph 2 of the Equal Opportunity Clause (EO Clause) requires contractors to list their job openings with the state or local employment service delivery system (employment service). OFCCP estimates that gathering records and providing the job listing to the employment service will take 25 minutes for approximately 15 listings per year. The burden for this third-party disclosure is 723,944 hours (115,831 contractor establishments × 25 minutes × 15 listings/60 = 723,944 hours).
Paragraph 4 of the EO Clause requires contractors to provide the appropriate employment service with the name and location of each of the contractor's hiring locations, a statement of its status as a federal contractor, the contact information for the hiring official at each location in the state, and a request for priority referrals of protected veterans. Paragraph 4 also requires contractors that use job search organizations to provide the employment service with the contact information for each job search organization. These requirements apply to new contractors, which OFCCP estimates to be 1 percent of all covered contractors. Existing contractors (or 99 percent of contractors) would have already provided the required information to the appropriate employment service or job search organization, as accounted for in the previous information collection. OFCCP estimates a total of 15 minutes for a new contractor to ensure that its information is provided to the employment service. The annual burden for this provision is 290 hours (1,158 new contractor establishments × 15 minutes/60 = 290 hours). OFCCP further estimates that 25 percent of new contractors, or 290, will use outside job search organizations and incur an additional 5-minute burden to notify the employment service of the contact information for its outside job search organizations. The annual burden for this provision is 24 hours (290 contractor establishments × 5 minutes/60 = 24 hours). This is a third-party disclosure.
Section 60-300.42(a) requires contractors to extend a pre-offer invitation to self-identify as a “protected veteran.” In the previous information collection, OFCCP estimated that contractors working at the company level will take 1.5 hours to review and retrieve existing sample invitations to self-identify, adopt the sample “as is” or make revisions to their existing form, save the invitation to self-identify and incorporate the document in the contractor's application form. Existing contractors will no longer need to take these steps to comply with the pre-offer invitation requirement, so the estimated burden in this information collection applies to only new contractor parent companies, or 1 percent of the 23,960 contractor companies. The burden for this provision is 360 hours (240 new contractor companies × 1.5 hours = 360 hours).
Applicants for available positions with covered contractors will have a minimal burden complying with § 60-300.42(a) in the course of completing their application for employment with the contractor. Section 60-300.42(a), on pre-offer self-identification, requires contractors to invite all applicants to self-identify whether or not they are a protected veteran. OFCCP estimates that there will be an average of 24 applicants per job vacancy for on average 15 vacancies per year. OFCCP further estimates that it will take applicants approximately 5 minutes to complete the form. The burden for this provision, assuming that all applicants complete the form, is 3,474,930 hours (115,831 contractor establishments × 15 listings × 24 applicants × 5 minutes/60 = 3,474,930 hours). This is a third-party disclosure.
OFCCP further estimates that it will take contractors 15 minutes to maintain self-identification forms. This time includes either manually storing the forms in a filing cabinet or saving them to an electronic database. The burden for this provision is 28,958 hours (115,831 contractor establishments × 15 minutes/60 = 28,958 hours).
OFCCP estimates that it takes existing contractors (99 percent of all contractor establishments), or 114,673, approximately 7.5 hours to document and maintain material evidence of annually updating a joint section 503 and VEVRAA affirmative action program. The burden for this requirement is 860,048 hours (114,673 contractor establishments × 7.5 hours = 860,048 hours).
OFCCP estimates that 1 percent of all contractors, or 1,158, are new contractors that will need to initially develop a joint section 503 and VEVRAA affirmative action program. OFCCP estimates that it takes approximately 18 hours to document and maintain material evidence of developing the program. Therefore, the recordkeeping burden for this provision is 20,844 hours (1,158 contractor establishments × 18 hours = 20,844 hours).
Section 60-300.44(f)(1)(ii) requires contractors to send written notification of the company's affirmative action program policies to subcontractors, vendors, and suppliers. OFCCP estimates that contractors will take 15 minutes to prepare the notification and send it to subcontractors, vendors, and suppliers, and an additional 15 minutes to update email address changes in the company's email system. Likewise, the burden for any information technology assistance needed to send the written communication is estimated at 15 minutes. The burden for this request is 86,873 hours (115,831 contractor establishments × 45 minutes/60 = 86,873 hours). This is a third-party disclosure.
Section 60-300.44(f)(4) requires contractors to document all outreach activities it undertakes for protected veterans, and retain these documents for a period of 3 years. OFCCP estimates that it will take contractors 15 minutes to retain the required documentation. Retaining these records means storing the records generated either electronically or in hardcopy, consistent with the contractor's existing business practices for how to store records. The annual recordkeeping burden for this provision is 28,958 hours (115,831
Section 60-300.44(h)(1)(vi) requires contractors to document the actions taken to meet the requirements of 60-300.44(h). OFCCP estimates that it will take contractors 10 minutes to document compliance with this provision to create an audit and reporting system. Documentation may include, as an example, the standard operating procedure of the system including roles and responsibilities, and audit and reporting timeframes and lifecycles. The annual recordkeeping burden of this provision is 19,305 hours (115,831 contractor establishments × 10 minutes/60 = 19,305 hours).
Section 60-300(k) requires contractors to collect and analyze certain categories of data. OFCCP believes that most contractors have the capability to conduct the required calculations electronically. However, some companies may have to calculate this information manually. Therefore, OFCCP estimates that the average time to conduct the analysis and maintain the relevant documentation would be 1 hour 25 minutes. Relevant documentation could include the report or other written documentation generated by the calculations that explain the methodology, the data used, and the findings and conclusions; the data used to conduct the calculations for subsequent validation of the results; and other material used by the contractor for the calculations. The recurring burden for this provision is 164,094 hours (115,831 contractor establishments × 85 minutes/60 = 164,094 hours).
Section 60-300.45 requires the contractor to establish benchmarks in one of two ways. A contractor may use as its benchmark the national average number of veterans in the civilian labor force, which OFCCP will provide (and periodically update) on its public Web site. Or, alternatively, the contractor may establish its own individual benchmark using the five-factor method set forth in Section 60-300.45(b)(2)(i)-(v). OFCCP estimates that it will take contractors on average 10 minutes to maintain material evidence of compliance with this provision. The burden of this provision would be 19,305 hours (115,831 establishments × 10 minutes/60 = 19,305 hours).
Section 60-300.81 requires contractors who are the subject of a compliance evaluation or complaint investigation to specify all available record formats and allow OFCCP to select preferred record formats from those identified by the contractor during a compliance evaluation. Pursuant to 5 CFR 1320.4(a)(2), this information collection is excluded from the PRA requirements because it is related to an “administrative action, investigation, or audit involving an agency against specific individuals or entities.”
The estimated cost to contractors is based on Bureau of Labor Statistics data in the publication “Employer Costs for Employee Compensation” (December 2015), which lists total compensation for management, professional, and related occupations as $55.47 per hour and administrative support as $24.75 per hour. OFCCP estimates that 52 percent of the burden hours will be management, professional, and related occupations and 48 percent will be administrative support, for a weighted average of $40.72 per burden hour.
The total estimated cost for applicants to fill out the self-identification form is based on Bureau of Labor Statistics data in the publication “Employer Costs for Employee Compensation” (December 2015), which lists an average total
OFCCP estimates that contractors will have some operations and maintenance costs in addition to the burden calculated above.
OFCCP estimates that the contractor will have some operations and maintenance cost associated with the invitations to self-identify. The contractor must invite all applicants to self-identify at both the pre-offer and post-offer stage of the employment process. Given the increasingly widespread use of electronic applications, any contractor that uses such applications would not incur copy costs. However, to account for contractors who may still choose to use paper applications, we are including printing and/or copying costs. Therefore, we estimate a single one-page form for both the pre- and post-offer invitation. Assuming 20 percent of all contractors will use a paper-based application system, and receive 24 applications for an average of 15 listings per establishment, the minimum estimated total cost to contractors will be $667,186.56 ((115,831 establishments × 20 percent) × 360 copies × $0.08 = $667,186.56).
OFCCP associates no unique federal costs with this information collection. OMB Control Numbers 1250-0001 and 1250-0003 currently include the annual costs of federal contractor compliance evaluations to ensure their compliance with the information collection requirements contained herein.
OFCCP is requesting OMB approval of 5,427,933 burden hours. The 2014 clearance contained approval of 10,546,660 hours. The decrease in hours of the current request is attributable to OFCCP's proposal to use data from EEO-1 Reports to determine the number of covered contractors and contractor establishments instead of the methodology used in the previous information collection, which averaged data from multiple sources. EEO-1 data from fiscal year (FY) 2014 shows 23,960 federal contractor parent companies filed reports, with 115,831 total contractor establishments. These numbers are significantly less than the estimates used in the previous information collection (57,104 contractor companies and 211,287 contractor establishments).
OFCCP believes that the EEO-1 Report provides the more accurate estimate of Federal contractors and establishments covered by this VEVRAA information collection. Section 60-1.7 requires specified Federal prime contractors and subcontractors to file an EEO-1 Report annually.
Employers use the EEO-1 Report (question 3) to self-identify as federal contractors and subcontractors and indicate whether they meet the thresholds under E.O. 11246 for AAP coverage: 50 or more employees and $50,000 or more contract value.
In the previous information collection approved in 2014 and in the VEVRAA final rule published in September 2013, OFCCP estimated the number of affected contractors and establishments to be 57,104 and 211,287, respectively. OFCCP now believes that these figures are an overestimate of the number of contractors with recordkeeping and third party disclosure burdens under this information collection. The numbers estimated in the final rule derived from a combination of data from FY 2009 EEO-1 Reports, the Federal Procurement Data System, the Veterans Employment and Training Services annual report, and other sources. See 78 FR 58658. The data from these sources is no longer current. Moreover, the methodology used to arrive at the estimates was based in large part on how OFCCP develops its Scheduling List of contractors for compliance evaluations. OFCCP develops its list of contractors for scheduling compliance evaluations by using multiple sources of information such as Federal acquisition and procurement databases, EEO-1 Reports, Dun & Bradstreet (D&B) data, and the U.S. Census Bureau tabulations. Statistical thresholds such as industry type and employee counts of contractor establishments are also used. The list may be further refined by applying a number of neutral factors such as contract expiration date and contract value on the number of establishments per contractor that will be scheduled in any one cycle. This methodology is appropriate for scheduling compliance evaluations, but it does not accurately reflect the number of contractors required to develop AAPs.
This distinction is recognized in the most recent Scheduling Letter and Itemized Listing ICR (Control Number
A summary of the change in hours is below.
The previous submission included 2,205,468 hours. The current request is 1,141,872 hours for an adjustment decrease of 1,063,596 hours. This decrease is primarily a result of the use of the contractor totals from the EEO-1 Reports data, discussed above, but also includes adjustments due to requirements that are no longer applicable to existing contractors.
The previous submission included 8,341,192 hours. The current request is 4,286,061 hours for an adjustment decrease of 4,055,131 hours. This decrease is primarily a result of the use of the contractor totals from the EEO-1 Reports data, discussed above, but also includes adjustments due to requirements that are no longer applicable to existing contractors.
The previous submission included 1,670,297 hours in initial capital or start-up costs and $1,217,002 in printing/copying costs. The current request no longer includes any initial capital and start-up costs, and estimates $667,186.56 for printing/copying. This is an adjustment decrease of 1,670,294 hours and $549,815.44. This decrease in printing/copying costs is exclusively a result of the use of the contractor totals from the EEO-1 Reports data, discussed above.
OFCCP does not publish the data collected by way of the items contained in this request as statistical tables.
OFCCP is not seeking such approval.
OFCCP is able to certify compliance with all provisions.
This information collection does not employ statistical methods.
The Office of Federal Contract Compliance Programs (OFCCP) requests Office of Management and Budget (OMB) approval for 4,392,369 hours in combined recordkeeping and third party disclosure burden hours for compliance by federal contractors and subcontractors with Section 503 of the Rehabilitation Act, as amended (29 U.S.C. 793). This compares with 10,229,910 hours in the most recently approved clearance request in 2014, a decrease of 5,837,541 (6,629,073 − 10,229,910 = −5,837,541) hours. This decrease reflects an adjustment in the number of affected federal contractors, which was overestimated in the previous information collection.
OFCCP will not be collecting any new or different information. The burden hours primarily represent those federal contractors and subcontractors that are required under Section 503 to develop, update, and maintain an affirmative action program. Reporting requirements under Section 503 are not included in this information collection, but rather, are included in the Scheduling Letter and Itemized Listing information collection request for nonconstruction supply and service federal contractors, separately approved under OMB Control Number 1250-0003.
As explained in Section 15 of this supporting statement, the decrease in burden hours for this information collection is largely a result of OFCCP's proposal to use data from Employer Information Report EEO-1 (EEO-1 Report) to determine the number of covered federal contractors and contractor establishments instead of the methodology used in the previous information collection, which averaged data from multiple sources. That methodology resulted in an overestimation of the number of affected contractors. The EEO-1 Report provides a more accurate estimate of contractors and establishments covered by Section 503. EEO-1 Report data from fiscal 2014 shows 23,960 federal contractor parent companies filed reports, with 115,831 total contractor establishments. These numbers are significantly less than the estimates used in the previous information collection (57,104 contractor companies and 211,287 contractor establishments). In addition, the decrease in burden hours is a result of adjustments in the estimated time contractors need to complete the employee self-identification survey, to account for the five-year interval between having to conduct surveys, and for certain requirements in the Section 503 regulations that are only applicable to new contractors.
The Office of Federal Contract Compliance Programs (OFCCP) is responsible for administering three equal opportunity laws that prohibit discrimination based on particular protected categories and require affirmative action to provide equal employment opportunities:
• Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503),
• Vietnam Era Veterans' Readjustment Assistance Act of 1974,
E.O. 11246 prohibits federal contractors
Section 503 prohibits employment discrimination against applicants and employees based on disability and requires contractors to take affirmative action to employ, advance in employment, and otherwise treat qualified individuals without discrimination based on physical or mental disabilities. Its requirements apply to contractors with a Government contract in excess of $15,000.
VEVRAA prohibits employment discrimination against protected veterans, namely disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces service medal veterans, and requires contractors to take affirmative action to employ, advance in employment, and otherwise treat qualified individuals without discrimination based on their status as a protected veteran. Its requirements apply to contractors with a Government contract of $150,000 or more.
OFCCP promulgated regulations implementing these programs consistent with the Administrative Procedure Act. These regulations are found at Title 41 of the Code of Federal Regulations (CFR) in Chapter 60 and are accessible on the Web at
For purposes of OFCCP's recordkeeping and reporting requirements, the agency divides the obligations under these authorities into multiple information collection requests (ICRs).
The reporting requirements under Section 503 are not included in this information collection, but rather, are included in the Scheduling Letter and Itemized Listing ICR for nonconstruction supply and service contractors, separately approved under OMB Control Number 1250-0003.
Due to the pending expiration of OMB No. 1250-0005, OFCCP is seeking approval of the agency's Section 503 recordkeeping and third party disclosure requirements.
These regulations address the affirmative action and nondiscrimination obligations of contractors and subcontractors related to individuals with disabilities. They define coverage, specify clauses to be included in contracts, provide a procedure to ensure compliance by covered contractors, and specify certain reporting and recordkeeping requirements, establish an aspirational utilization goal of 7 percent, and specify the basic requirements for AAPs under Section 503.
Section 60-741.5 sets forth the equal opportunity clause in Federal contracts.
Section 60-741.40 requires the development and maintenance of a Section 503 AAP. This regulation requires each contractor and subcontractor that has 50 or more employees, and a contract of $50,000 or more, to develop an AAP at each establishment.
Section 60-741.42 requires contractors to invite job applicants at the pre-offer and post-offer stages to self-identify as individuals with a disability. In addition, the contractor is required to invite each of its employees to voluntarily self-identify as an individual with a disability. This employee survey must be conducted at five year intervals.
Section 60-741.44 identifies the required elements of an AAP, including those listed below.
• Develop and include an equal opportunity policy statement in the AAP.
• Review personnel processes to ensure that qualified individuals with disabilities are provided equal opportunity.
• Review all physical and mental job qualification standards to ensure that, to the extent any tend to screen out qualified individuals with disabilities on the basis of disability, that the standards are job-related and consistent with business necessity.
• Provide reasonable accommodations for physical and mental limitations.
• Develop and implement procedures to ensure that employees are not harassed because of their disability.
• Develop procedures and practices to disseminate affirmative action policies, both internally and externally, and undertake appropriate outreach and positive recruitment activities designed to effectively recruit qualified individuals with disabilities.
• Establish an audit and reporting system to measure the effectiveness of the AAP.
• Designate a responsible official to implement and oversee the AAP.
• Provide training to all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes to ensure that the commitments in the contractor's affirmative action program are implemented.
• Conduct data collection analysis pertaining to applicants and hires on an annual basis and maintain them for a period of three (3) years, including, the number of applicants who self-identified as individuals with disabilities or who are otherwise known to be individuals with disabilities; the total number of job openings and total number of jobs filled; the total number of applicants for all jobs; the number of applicants with disabilities hired; and the total number of applicants hired.
Section 60-741.45 establishes a 7 percent utilization goal for employment of individuals with disabilities for each job group in the contractor's workforce or to the entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific
Section 60-741.60 identifies the investigative methods OFCCP uses to evaluate a contractor's compliance with the agency's regulations. These methods range from an in-depth comprehensive evaluation of the contractor's employment practices (
Section 60-741.42 outlines the requirements for contractors' obligations to invite individuals to self-identify as a person with a disability. This process enables the contractor to collect valuable data on the number of individuals with disabilities who apply for, are hired into, and are employed in federal contractor positions. If this data shows that the contractor is not meeting the utilization goal, the contractor must determine if impediments to equal employment opportunity for individuals with disabilities exist, and if so, develop and execute action-oriented programs to correct these problem areas.
The form that contractors use to invite voluntary self-identification of disability includes a field for applicants and employees to provide their name and the date. This is included to enable contractors to identify the job groups into which individuals should be placed when performing their utilization analysis. Identification by name enables OFCCP to verify the accuracy of a contractor's utilization analysis during a compliance evaluation.
Section 60-741.44 describes the required contents of a contractor's written affirmative action program. During a compliance evaluation, OFCCP reviews the contractor's affirmative action program to determine whether the contractor is complying with its obligations not to discriminate in employment and to take affirmative action to ensure equal employment opportunity.
Section 60-741.45 requires contractors to establish a national goal for the employment of individuals with disabilities by contractors, sets out the process contractors will use to assess whether the goal has been met, and requires contractors to maintain records of their assessment. This requirement provides contractors and OFCCP with a yardstick to objectively measure the effectiveness of nondiscrimination and affirmative action efforts.
In general, under OFCCP regulations each contractor develops its own methods for collecting and maintaining information. Contractors have the option to use methods that best suit their needs as long as they can retrieve and provide OFCCP with the requested data upon request during a compliance evaluation.
The majority of contractors and subcontractors are repeat contractors. Since they are subject to OFCCP's regulatory requirements year after year, most have developed their information technology systems to generate the data required by OFCCP regulations.
Information technology systems used to comply with data requirements under OFCCP's regulations should be capable of performing the below functions.
In addition, OFCCP provides compliance assistance to all contractors, including smaller contractors by leveraging information technology. For example, OFCCP's Web site provides access to compliance resources and information, including the following.
OFCCP believes that advances in technology make contractor compliance with the recordkeeping and reporting requirements easier and less burdensome. However, in the absence of empirical data, OFCCP is unable to quantify the impact of improved information technology and thus, OFCCP does not include it in the calculation of burden hours.
According to the Government Paperwork Elimination Act (GPEA, Pub. L. 105-277, 1998), by October 2003, Government agencies must generally provide the option of using and accepting electronic documents and signatures, and electronic recordkeeping, where practicable. OFCCP fulfills its GPEA requirements by permitting contractors to submit AAPs and supporting documentation via email or other electronic format.
The recordkeeping requirements contained in this request result exclusively from the implementation of Section 503. This authority uniquely empowers the Secretary of Labor, and by a Secretary's Order, the OFCCP, to require the collection, analysis, and reporting of data and other information in connection with the enforcement of the law and regulations requiring Government contractors to take affirmative action to ensure equal employment opportunity. No duplication of effort exists because no other Government agency has these specific data collection requirements.
While contractors maintain other employment data in the normal course of business, affirmative action programs under Section 503 are unique in that contractors create them specifically to meet the requirements of OFCCP regulations. This comprehensive document is not available from any other source. Therefore, no duplication of effort exists.
OFCCP's information collection does not have a significant economic impact on a substantial number of small entities. OFCCP minimizes the information collection and recordkeeping burden on a significant number of small businesses by exempting contractor establishments with fewer than 50 employees from the AAP requirement. However, once OFCCP's authority covers one contractor's establishment, all of its employees must be accounted for in an AAP whether or not each of the contractor's establishments meet the minimum 50 employees threshold.
OFCCP also minimized the burden of the information collection requirements
The requirements outlined in this ICR ensure that covered contractors and subcontractors meet their equal opportunity obligations to individuals with disabilities as described in Section 503. The nondiscrimination requirements and general affirmative action requirements of Section 503 apply to all covered contractors.
If this information is collected less frequently, it could compromise OFCCP's enforcement of Section 503 and its implementing regulations. OFCCP reviews contractor compliance through its compliance evaluation process.
As noted under the supply and service ICR (OMB No. 1250-0003), the older the data the greater the chances are that more qualified workers are victims of discrimination and that the discrimination continues for a longer period. A consequence of such older data may be that the scope of the violation, resulting harm and the overall burden of contractor compliance are greater.
There are no special circumstances for the collection of this information.
OFCCP publishes all regulations containing recordkeeping or reporting requirements in the
OFCCP will address comments received from the public under this paragraph at the end of the 60-day
OFCCP provides neither payments nor gifts to respondents.
Contractors who submit the required information may view it as sensitive information. OFCCP will evaluate all information pursuant to the public inspection and disclosure provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Department of Labor's implementing regulations at 29 CFR part 70. OFCCP requires that a contractor affected by a FOIA disclosure request be notified in writing and no decision to disclose information is made until the contractor has an opportunity to submit objections to the release of the information. Furthermore, it is OFCCP's position that it does not release any data obtained during the course of a compliance evaluation until the matter is completed.
Section 503 requires contractors to provide a form to applicants and employees asking them to voluntarily self-identify as an individual with a disability and informing them of their right to request reasonable accommodation, if it is needed. This data is necessary to enable OFCCP to assess contractors' compliance with Section 503 and ensure that individuals with disabilities are being accorded equal employment opportunity. The information will also enable contractors to assess their utilization of qualified individuals with disabilities and their outreach efforts and recruitment of such individuals with disabilities. The form states clearly that the submission of the requested information is voluntary, and that the data is collected and maintained strictly for affirmative action purposes and will otherwise be kept confidential. Race and sex data are not required under the Section 503 regulations.
The following is a summary of the methodology for the calculation of the recordkeeping and third party disclosure requirements for OFCCP's Section 503 ICR.
As noted at the beginning of this supporting statement, the total in combined recordkeeping and third party disclosure burden hours for this ICR (4,392,369) is less than the total number of hours approved in 2014 (10,229,910), as detailed in Sec. 15 below.
Pursuant to § 60-741.42, contractors use the standard form entitled “Voluntary Self-Identification of Disability” to invite applicants, hires, and employees to identify as an individual with a disability pre-offer, post-offer, and through periodic invitations to all employees.
Section 60-741.42(a) requires contractors to extend a pre-offer invitation to self-identify as an “individual with a disability.” In the previous information collection, OFCCP estimated that contractors working at the company level will take 1.5 hours to review and retrieve existing sample invitations to self-identify, adopt the sample “as is” or make revisions to their existing form, save the invitation to self-identify and incorporate the document in the contractor's application form. Existing contractors will no longer need to take these steps to comply with the pre-offer invitation requirement, so the estimated burden in this information collection applies to only new contractor parent companies, or 1 percent of the 23,960 contractor companies. The burden for this provision is 360 hours (240 new contractor companies × 1.5 hours = 360 hours).
Applicants for available positions with covered contractors will have a minimal burden complying with § 60-741.42(a) in the course of completing their application for employment with the contractor. Section 60-741.42(a), on pre-offer self-identification, requires contractors to invite all applicants to self-identify whether or not they are an individual with a disability. OFCCP estimates that there will be an average of 24 applicants per job vacancy for on average 15 vacancies per year. OFCCP further estimates that it will take applicants approximately 5 minutes to complete the form. The burden for this provision is 3,474,930 hours (115,831 contractor establishments × 15 listings × 24 applicants × 5 minutes/60 = 3,474,930 hours). This is a third-party disclosure.
In the previous information collection, OFCCP estimated that it will
Contractor employees will have to spend some time reviewing and/or completing the survey. There are approximately 31,626,890 contractor employees. OFCCP estimates that employees will take 5 minutes to complete the self-identification form. The burden for this provision, assuming every employee completes the form, is 527,115 hours ((31,626,890 employees × 5 minutes/60)/5 years = 527,115 hours). Utilizing Bureau of Labor Statistics data in the publication “Employer Costs for Employee Compensation” (December 2015), which lists an average total compensation for all civilian workers as $33.58 per hour, the cost of this provision would be $17,700,521.70. This is a third-party disclosure.
OFCCP further estimates that it will take contractors 15 minutes to maintain self-identification forms. This time includes either manually storing the forms in a filing cabinet or saving them to an electronic database. The burden for this provision is 28,958 hours (115,831 contractor establishments × 15 minutes/60 = 28,958 hours).
OMB Control Number 1250-0004 contains the burden estimates for documenting and maintaining material evidence of annually updating and, for new contractors, developing parts of a joint Section 503 and VEVRAA affirmative action program. Therefore, there is no additional burden for those parts of the Section 503 AAP in this information collection request. OFCCP separately identifies provisions below that are not included in burden estimates currently approved by 1250-0004.
Section 60-741.44(f)(1)(ii) requires contractors to send written notification of the company's affirmative action program policies to subcontractors, vendors, and suppliers. Section 60-300.44(f)(1)(ii) of the VEVRAA regulations also requires contractors to send written notification of the company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers. OFCCP therefore expects that contractors will send a single, combined notice, informing subcontractors, vendors and suppliers of their VEVRAA and Section 503 policies. Accordingly, OFCCP estimates that there is no additional burden for this provision than what was already calculated in the companion ICR for VEVRAA Recordkeeping Requirements (OMB No. 1250-0004).
Section 60-741.44(f)(4) requires a contractor to document all outreach activities it undertakes for individuals with disabilities, and retain these documents for a period of 3 years. OFCCP estimates that it will take contractors 10 minutes to maintain the outreach and recruitment documentation that would typically be generated as a result of their obligations pursuant to other provisions in the regulations. This does not include any additional time to make the software configuration needed on the contractor's computer system to store data for an additional year, as this burden was previously accounted for in the VEVRAA ICR's burden analysis of § 60-300.80(b). Therefore, the recurring burden for this provision is 19,305 hours (115,831 contractor establishments × 10 minutes/60 = 19,305 hours).
Section 60-741.44(h)(1)(vi) requires contractors to document the actions taken to meet the requirements of 60-741.44(h), as mandated in the current regulations. OFCCP estimates that it will take contractors 10 minutes to document compliance with this existing provision. Documentation may include, as an example, the standard operating procedure of the system including roles and responsibilities, and audit and reporting timeframes and lifecycles. The annual recordkeeping burden of this provision is 19,305 hours (115,831 contractor establishments × 10 minutes/60 = 19,305 hours).
Section 60-741.44(k) requires contractors to collect and analyze certain categories of data. OFCCP believes that most contractors have the capability to conduct the required calculations electronically. However, some companies may have to calculate this information manually. Therefore, OFCCP estimates that the average time to conduct the analysis and maintain the relevant documentation would be 1 hour 25 minutes. Relevant documentation could include the report or other written documentation generated by the calculations that explain the methodology, the data used, and the findings and conclusions; the data used to conduct the calculations for subsequent validation of the results; and other material used by the contractor for the calculations. The recurring burden for this provision is 164,094 hours (115,831 contractor establishments × 85 minutes/60 = 164,094 hours).
Section 60-741.45 requires contractors to conduct a utilization analysis to evaluate the representation of individuals with disabilities in each job group within the contractor's workforce with the utilization goal established in paragraph (a) of this section. OFCCP estimates that contractors will take 1 hour to conduct the utilization analysis. The burden for this provision is 115,831 hours (115,831 contractor establishments × 1 hour = 115,831 hours).
OFCCP further estimates that it will take contractors an additional 10 minutes to maintain records of the utilization analysis. The recordkeeping burden is 19,305 hours (115,831 contractor establishments × 10 minutes/60 = 19,305 hours).
Section 60-741.81 requires contractors who are the subject of a compliance evaluation or complaint investigation to specify all available record formats and allow OFCCP to select preferred record formats from those identified by the contractor during a compliance evaluation. Pursuant to the regulations implementing the PRA at 5 CFR 1320.4(a)(2), this information collection is excluded from the PRA requirements because it is related to an “administrative action, investigation, or audit involving an agency against specific individuals or entities.”
The estimated recordkeeping cost to contractors is based on Bureau of Labor
The estimated cost for contractor employees to complete the self-identification survey is based on Bureau of Labor Statistics data in the publication “Employer Costs for Employee Compensation” (December 2015), which lists an average total hourly compensation for all civilian workers of $33.58.
The total estimated cost for applicants to fill out the self-identification form is based on Bureau of Labor Statistics data in the publication “Employer Costs for Employee Compensation” (December 2015), which lists an average total hourly compensation for all civilian workers of $33.58.
OFCCP estimates that contractors will have some operations and maintenance costs in addition to the burden calculated above.
OFCCP estimates that the contractor will have some operations and maintenance cost associated with the invitations to self-identify. The contractor must invite all applicants to self-identify at both the pre-offer and post-offer stage of the employment process. Given the increasingly widespread use of electronic applications, any contractor that uses such applications would not incur copy costs. However, to account for contractors who may still choose to use paper applications, we are including printing and/or copying costs. Therefore, we estimate a single one page form for both the pre- and post-offer invitation. Assuming 20 percent of all contractors will use a paper-based application system, and receive 24 applications for an average of 15 listings per establishment, the minimum estimated total cost to contractors will be $667,186.56 ((115,831 establishments × 20 percent) × 360 copies × $0.08 = $667,186.56).
OFCCP associates no unique federal costs with this information collection. OMB Control Numbers 1250-0001 and 1250-0003 currently include the annual costs of federal contractor compliance evaluations to ensure their compliance with the information collection requirements contained herein.
OFCCP is requesting OMB approval of 4,392,369 burden hours. The 2014 clearance contained approval of 10,229,910 hours. The decrease in hours of the current request is attributable largely to OFCCP's proposal to use data from EEO-1 Reports to determine the number of covered contractors and contractor establishments instead of the methodology used in the previous information collection, which averaged data from multiple sources. EEO-1 data from FY 2014 shows 23,960 contractor parent companies filed reports, with 115,831 total contractor establishments. These numbers are significantly less than the estimates used in the previous information collection (57,104 contractor companies and 211,287 contractor establishments).
OFCCP believes that the EEO-1 Report provides the more accurate estimate of contractors and establishments covered by this Section 503 information collection. Section 60-1.7 requires specified Federal prime
Employers use the EEO-1 Report (question 3) to self-identify as contractors and subcontractors and indicate whether they meet the thresholds under E.O. 11246 for AAP coverage: 50 or more employees and $50,000 or more contract value.
In the previous information collection approved in 2014 and in the Section 503 final rule published in September 2013, OFCCP had estimated the number of affected contractors and establishments to be 57,104 and 211,287, respectively. OFCCP now believes that these figures are an overestimate of the number of contractors with recordkeeping and third party disclosure burdens under this information collection. The numbers estimated in the final rule derived from a combination of data from FY 2009 EEO-1 Reports, the Federal Procurement Data System, the Veterans Employment and Training Services annual report, and other sources. See 78 FR 58729. The data from these sources is no longer current. Moreover, the methodology used to arrive at the estimates was based in large part on how OFCCP develops its Scheduling List of contractors for compliance evaluations. OFCCP develops its list of contractors for scheduling compliance evaluations by using multiple sources of information such as Federal acquisition and procurement databases, EEO-1 Reports, Dun & Bradstreet (D&B) data, and the U.S. Census Bureau tabulations. Statistical thresholds such as industry type and employee counts of contractor establishments are also used. The list may be further refined by applying a number of neutral factors such as contract expiration date and contract value on the number of establishments per contractor that will be scheduled in any one cycle. This methodology is appropriate for scheduling compliance evaluations, but it does not accurately reflect the number of contractors required to develop AAPs.
This distinction is recognized in the most recent Scheduling Letter and Itemized Listing ICR (Control Number 1250-0003), in which OFCCP estimated the number of contractors required to develop AAPs under E.O. 11246 using data from only the EEO-1 Reports, instead of the more complex methodology OFCCP uses to create its Scheduling Letter and Itemized Listing. Thus, to be consistent with that approach, OFCCP will now use data from only the EEO-1 Reports to estimate the number of contractors affected by this information collection, which consists of recordkeeping and third part disclosures resulting from the Section 503 AAP requirements.
In addition, the decrease in burden hours is a result of adjustments in the estimated time contractors need to complete the employee self-identification survey, to account for the five-year interval between having to conduct surveys, and for certain requirements in the Section 503 regulations that are only applicable to new contractors.
A summary of the change in hours is below.
The previous submission included 862,756 hours. The current request is 390,324 hours for an adjustment decrease of 472,432 hours. This decrease is a result of the use of the contractor totals from the EEO-1 Reports data, discussed above, as well as adjustments in the time estimated for contractors to conduct the invitation to self-identify survey under section 60-741.42(a), to reflect that the survey is to be completed at five-year intervals, and to account for requirements that are applicable only to new contractors.
The previous submission included 9,367,154 hours. The current request is 4,002,045 hours for an adjustment decrease of 5,365,109 hours. This decrease is primarily a result of the use of the contractor totals from the EEO-1 Reports data, discussed above, as well as an adjustment to account for the requirement that contractor employees are invited to complete the self-identification survey only once every five years.
The previous submission included 1,556,089 hours in initial capital or start-up costs and $1,217,002 in printing/copying costs. The current request no longer includes any initial capital and start-up costs, and estimates $667,186.56 for printing/copying. This is an adjustment decrease of 1,556,089 hours and $549,815.44. This decrease in printing/copying costs is exclusively a result of the use of the contractor totals from the EEO-1 Reports data, discussed above.
OFCCP does not publish the data collected by way of the items contained in this request as statistical tables.
OFCCP is not seeking such approval.
OFCCP is able to certify compliance with all provisions.
This information collection does not employ statistical methods.
Notice.
The Department of Labor (DOL) will submit the Employment and Training Administration (ETA) sponsored information collection request (ICR) revision titled, “Registered Apprenticeship College Consortium,” to the Office of Management and Budget (OMB) on August 31, 2016, for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before September 30, 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 RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Registered Apprenticeship College Consortium (RACC) information collection that facilitates awarding a registered apprenticeship completion certificate towards college credit. RACC post-secondary educational institution members agree to accept apprentice graduates from member registered apprenticeship sponsors with the approximate amount of credit towards college that has been designated by a third party evaluator. The information collection includes three application forms to join the consortium; there are three types of membership and separate applications for each type of member. This information collection has been classified as a revision, because the ETA has decided not to pursue completion of an on-line registration system. National Apprenticeship Act section 1 authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
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,
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 July 18, 2016, the National Science Foundation published a notice in the
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold a meeting on September 8-10, 2016, 11545 Rockville Pike, Rockville, Maryland.
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with Subsection 10(d) of Public Law 92-463 and 5 U.S.C. 552b(c), certain portions of this meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Mr. Theron Brown, ACRS Audio Visual Technician (301-415-8066), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
For the Nuclear Regulatory Commission.
Thursday, September 15, 2016, 2 p.m. (OPEN Portion); 2:15 p.m. (CLOSED Portion).
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue NW., Washington, DC.
Meeting OPEN to the Public from 2 p.m. to 2:15 p.m. Closed portion will commence at 2:15 p.m. (approx.)
(Closed to the Public 2:15 p.m.):
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
1.
This notice will be published in the
On May 10, 2016, The NASDAQ Stock Market LLC (“Nasdaq” or “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 the Shares under Nasdaq Rule 5735, which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by the Trust, which was established as a Massachusetts business trust on January 6, 2015.
Amplify Investments LLC will be the investment adviser (“Adviser”) to the Fund. The following entities will serve as investment sub-advisers (collectively, “Sub-Adviser”) to the Fund: Horizon Investment Services, LLC (“Horizon”) and Penserra Capital Management LLC (“Penserra”). Quasar Distributors LLC will be the principal underwriter and distributor of the Fund's Shares. U.S. Bancorp Fund Services LLC will act as the administrator, accounting agent, custodian, and transfer agent to the Fund. The Exchange represents that neither the Adviser nor any Sub-Adviser is a broker-dealer, although Penserra is affiliated with a broker-dealer.
The Exchange has made the following representations and statements in describing the Fund and its investment strategies, including the Fund's portfolio holdings and investment restrictions.
The investment objective of the Fund will be to seek long-term capital appreciation. Under normal market conditions,
The Fund will seek diversification among the ten economic sectors of the U.S. stock market, and it is not anticipated that more than 45% of the portfolio will be invested in a single sector. Horizon will select the Fund's portfolio securities from the Buy List. Penserra will be responsible for implementing the Fund's investment program by, among other things, trading portfolio securities and performing related services, rebalancing the Fund's portfolio, and providing cash management services in accordance with the investment advice formulated by, and model portfolios delivered by, the Adviser and Horizon.
The Fund may invest the remaining 10% of its net assets in short-term debt securities and other short-term debt instruments (described below), as well as cash equivalents, or it may hold cash. The percentage of the Fund invested in such holdings or held in cash will vary and will depend on several factors, including market conditions. The Fund may invest in the following short-term debt instruments:
The Fund may invest in the securities of other ETFs and non-exchange listed open-end investment companies (referred to as “mutual funds”), including money market funds,
According to the Exchange, the Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including securities deemed illiquid by the Adviser or a Sub-Adviser.
The Fund may not invest 25% or more of the value of its total assets in securities of issuers in any one industry or group of industries (other than securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, or securities of other investment companies), except that the Fund may invest 25% or more of the value of its total assets in securities of issuers in a group of industries to approximately the same extent that the Buy List includes the securities of a particular group of industries.
All of the Fund's net assets that are invested in exchange-traded equity securities (including common stocks and ETFs) will be invested in securities that are listed on a U.S. exchange.
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 regulations thereunder applicable to a national securities exchange.
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,
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. Information regarding the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Quotation and last-sale information for U.S. exchange-traded equity securities (including common stocks and ETFs) will be available from the exchanges on which they are traded as well as in accordance with any applicable CTA plans. Open-end investment companies (other than ETFs) are typically priced once each business day and their prices will be available through the applicable fund's Web site or from major market data vendors. Pricing information for Short-Term Debt Instruments, repurchase agreements, certificates of deposit, and bank time deposits will be available from major broker-dealer firms, major market data vendors, and pricing services. Moreover, the Fund's Web site, which will be publicly available prior to the public offering of Shares, will include a form of the prospectus for the Fund, as well as the Shares' ticker, CUSIP, and exchange information along with additional quantitative information updated on a daily basis, including, for the Fund: (1) Daily trading volume, the prior business day's reported NAV and closing price, mid-point of the bid/ask spread at the time of calculation of such NAV (“Bid/Ask Price”),
The Commission believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. 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. Nasdaq will halt trading in the Shares under the conditions specified in Nasdaq Rules 4120 and 4121, including the trading pauses under Nasdaq Rules 4120(a)(11) and (12). Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable.
The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including the following:
(1) The Shares will be subject to Rule 5735, which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) Trading in the Shares will be subject to the existing trading surveillances, administered by both Nasdaq and also the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, and these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
(3) FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and the exchange-traded securities and instruments held by the Fund (including common stocks and ETFs) with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”),
(4) All of the Fund's net assets that are invested in exchange-traded equity securities (including common stocks and ETFs) will be invested in securities that trade in markets that are members of ISG or are parties to a comprehensive surveillance sharing agreement with the Exchange. In addition, the Fund will not invest in OTC secondary market securities.
(5) The Fund will not invest in derivative instruments, and the Fund's investments will be consistent with its investment objective and will not be used to enhance leverage.
(6) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(7) Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (b) Nasdaq Rule 2111A, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (c) how and by whom the information regarding the Intraday Indicative Value and the Disclosed Portfolio is disseminated; (d) the risks involved in trading the Shares during the Pre-Market and Post-Market Sessions when an updated Intraday Indicative Value will not be calculated or publicly disseminated; (e) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(8) For initial and continued listing, the Fund must be in compliance with Rule 10A-3 under the Exchange Act.
(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), including securities deemed illiquid by the Adviser or a Sub-Adviser.
(10) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
(11) The Fund intends to enter into repurchase agreements only with financial institutions and dealers believed by the Adviser to present minimal credit risks in accordance with criteria approved by the Board of Trustees of the Trust. The Adviser will review and monitor the creditworthiness of such institutions and will monitor the value of the collateral at the time the transaction is entered into and at all times during the term of the repurchase agreement.
(12) The Fund may only invest in commercial paper rated A-1 or higher by S&P Ratings, Prime-1 or higher by Moody's, or F1 or higher by Fitch.
(13) While the Fund may invest in inverse ETFs, the Fund will not invest in leveraged or inverse leveraged (
The Commission notes that the Fund and the Shares must comply with the initial and continued listing criteria in Nasdaq Rule 5735 for the Shares to be listed and traded on the Exchange. In addition, the Exchange represents that all statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, 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.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1 thereto, 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 filed a proposal to amend Rule 13.8 to adopt a new market data product known as EDGX Summary Depth.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 13.8 to adopt a new market data product known as EDGX Summary Depth. EDGX Summary Depth would be a data feed that offers aggregated two-sided quotations for all displayed orders entered into the System
The Market Status message will reflect a change in the status of the Exchange. For example, the Market Status message would indicate whether the Exchange is experiencing a systems issue or disruption resulting in quotation or trade information not currently being disseminated as part of the aggregated BBO. The Market Status message will also indicate when Exchange has resolved a systems issue or disruption and is properly reflecting the status of the aggregated BBO. The Trade Break message will indicate when an execution is broken in accordance with Exchange rules.
The Exchange intends to offer EDGX Summary Depth as of January 3, 2017. Prior to January 3, 2017, the Exchange will file a separate rule change with the Commission proposing fees to be charged for EDGX Summary Depth.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange also believes that the proposed rule change is consistent with section 11(A) of the Act
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to consumers of such data. It was believed that this authority would expand the amount of data available to users and consumers of such data and also spur innovation and competition for the provision of market data. The Exchange believes that the data products proposed herein are precisely the sort of market data products that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by lessening regulation of the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing “unnecessary regulatory restrictions” on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history.
In addition, EDGX Summary Depth removes impediments to and perfects the mechanism of a free and open market and a national market system by providing investors with alternative market data and competing with similar market data products currently offered by the New York Stock Exchange, Inc. (“NYSE”) and the Nasdaq Stock Market LLC (“Nasdaq”).
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) 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 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act” or “Exchange Act”)
The MSRB filed with the Commission a proposed rule change to delay by two years, until August 29, 2018, the date on which submissions must be made pursuant to Rule G-45, on reporting of information on municipal fund securities, by underwriters of programs established to implement the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014 (the “ABLE Act”
In addition, the proposed rule change would provide guidance under (i) Rule G-42, on duties of non-solicitor municipal advisors, that such rule applies to municipal advisors that engage in municipal advisory activities for sponsors or trustees of ABLE programs and (ii) Rule G-44, on supervisory and compliance obligations of municipal advisors, that such rule equally applies to municipal advisors that engage in municipal advisory activities for sponsors or trustees of 529 college savings plans, ABLE programs, and other municipal fund securities (the amendment to Rule G-45 and guidance under Rules G-42 and G-44, collectively the “proposed rule change”). The MSRB proposes an immediate effectiveness for the proposed rule change.
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The MSRB has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The MSRB proposes to delay by two years, until August 29, 2018, the date the submissions are due under Rule G-45 on Form G-45 from underwriters to ABLE programs. In addition, the MSRB proposes to provide guidance under (i) Rule G-42, that such rule applies to municipal advisors that engage in municipal advisory activities for sponsors or trustees of ABLE programs and (ii) Rule G-44, that such rule equally applies to municipal advisors that engage in municipal advisory activities for sponsors or trustees of 529 college savings plans, ABLE programs, and other municipal fund securities.
The ABLE Act added section 529A to the Code to permit a state, or an agency or instrumentality thereof, to establish and maintain a new type of tax-advantaged savings program to help support individuals with disabilities in maintaining health, independence, and quality of life. Section 529A was modeled on section 529 of the Code.
Given the similarities between the structure of ABLE accounts and 529 college savings plan accounts and the manner in which interests in those accounts will be distributed, the MSRB requested interpretive guidance from the SEC staff. Specifically, the MSRB requested guidance on:
(i) Whether interests in an ABLE account offered through an ABLE program are “municipal securities,” as defined in Section 3(a)(29) of the Exchange Act, and
(ii) whether a dealer participating in the sale of those interests would be participating in a “primary offering” and thus be subject to the requirements of Rule 15c2-12 under the Exchange Act.
In response to the first request, the SEC staff stated that:
The April guidance provided that interests in ABLE accounts may be municipal fund securities, and that to the extent that dealers effect transactions in municipal fund securities, such dealers may be subject to all Board rules, unless those dealers are specifically exempted from any of those rules. The April guidance also anticipated that the Board would publish guidance to address particular issues, including Rule G-45, applicable to the sale of interests in ABLE programs by dealers.
Specifically, as ABLE programs become operational, the proposed rule change would delay, by two years from August 29, 2016 until August 29, 2018, the date that submissions are due under Rule G-45 from underwriters to ABLE programs. The MSRB believes that the delay would help ensure that the MSRB receives reliable, complete and accurate filings on Form G-45 from such underwriters. The MSRB also believes that the delay would help ensure that the MSRB receives more meaningful data about a larger set of ABLE programs on Form G-45. However, the current deadlines under Rule G-45 for submissions from underwriters of 529 college savings plans would remain unchanged.
Further, the proposed rule change would provide guidance in supplementary material under (i) Rule G-42, that such rule applies to municipal advisors that engage in municipal advisory activities for sponsors or trustees of ABLE programs and (ii) Rule G-44, that such rule equally applies to municipal advisors that engage in municipal advisory activities for sponsors or trustees of 529 college savings plans, ABLE programs, and other municipal fund securities. The proposed guidance would provide clarity about the applicability of such rules to municipal advisors that engage in municipal advisory activities for sponsors or trustees of municipal fund securities. The MSRB is proposing this guidance in response to requests from industry groups in other Board rulemaking proposals.
The MSRB believes that the proposed rule change is consistent with section 15B(b)(2)(C) of the Act,
As ABLE programs become operational, the proposed rule change would provide underwriters to ABLE programs with additional time to submit reliable, accurate and complete data to the MSRB under Rule G-45. The proposed rule change also would provide the MSRB with more meaningful data about a larger set of ABLE programs under Rule G-45. Further, the proposed rule change would provide guidance about the applicability of (i) Rule G-42 to municipal advisors that engage in municipal advisory activities for sponsors or trustees of ABLE programs and (ii) Rule G-44 to municipal advisors that engage in municipal advisory activities for sponsors or trustees of 529 college savings plans, ABLE programs, and other municipal fund securities. The proposed guidance would provide clarity about the applicability of such rules to municipal advisors that engage in municipal advisory activities for sponsors or trustees of municipal fund securities.
Section 15B(b)(2)(C) of the Act
Written comments were neither solicited nor received on the proposed rule change.
Pursuant to section 19(b)(3)(A)
The MSRB has requested that the Commission waive the 30-day operative delay specified in Rule 19b-4(f)(6)(iii).
At any time within 60 days of the filing of the proposed rule change, the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the co-location services offered by the Exchange as follows: (1) To provide additional information regarding the access to trading and execution services and connectivity to data provided to Users with local area networks available in the data center; and (2) to establish fees relating to User's access to trading and execution services; connectivity to data feeds and to testing and certification feeds; access to clearing; and other services. In addition, this proposed rule change reflects changes to the NYSE MKT Equities Price List (“Price List”) and the NYSE Amex Options Fee Schedule (“Fee Schedule”) related to these co-location services. The proposed change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the co-location
More specifically, the Exchange proposes to revise the Price List and Fee Schedule to include:
a. a more detailed description of the access to the trading and execution systems of the Exchange and its Affiliate SROs (the “Exchange Systems”) and connectivity to certain market data
b. fees for connectivity to:
• Certain other market data products of the Exchange and its Affiliate SROs (the “Premium NYSE Data Products” and, together with the Included Data Products, the “NYSE Data Products”);
• Access to the execution systems of third party markets and other content service providers (“Third Party Systems”);
• Data feeds from third party markets and other content service providers (the “Third Party Data Feeds”);
• Third party testing and certification feeds;
• Depository Trust & Clearing Corporation (“DTCC”) services; and
c. fees for virtual control circuits (“VCCs”) between two Users. VCCs are unicast connections between two participants over dedicated bandwidth.
The Exchange provides access to the Exchange Systems and Third Party Systems (together, “Access”) and connectivity to NYSE Data Products, Third Party Data Feeds, third party testing and certification feeds, and DTCC (collectively, “Connectivity”) as conveniences to Users. Use of Access or Connectivity is completely voluntary, and several other access and connectivity options are available to a User. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the Exchange's Secure Financial Transaction Infrastructure (“SFTI”) network, or a combination thereof.
Similarly, the Exchange provides VCCs as a convenience to Users. Use of a VCC is completely voluntary. As an alternative to an Exchange-provided VCC, a User may connect to another User through a fiber connection (“cross connect”).
As the Exchange has previously stated, a User's connection to the LCN or IP network provides it access to the Exchange Systems and Exchange market data products.
Access to certification and testing feeds comes with the purchase of access to the Exchange Systems and connectivity to many of the NYSE Data Products. Such feeds, which are solely used for certification and testing and do not carry live production data, are only available over the IP network.
The Exchange offers connectivity to NYSE Data Products in three forms: As a resilient feed, as “Feed A” or as “Feed B.” Resilient feeds include two copies of the same feed, for redundancy purposes. Feed A and Feed B are identical feeds.
As the Exchange has previously stated, Users' connections to the LCN or IP networks include access to Exchange Systems.
When a User purchases access to the LCN or IP network, it receives the ability to connect to the trading and execution systems of the NYSE, NYSE MKT and NYSE Arca (Exchange Systems), subject, in each case, to authorization by the NYSE, NYSE MKT or NYSE Arca, as applicable. Such connectivity includes access to the customer gateways that provide for order entry, order receipt (
Currently, there are three categories of data feeds for which the Exchange offers
The Included Data Products include the data feeds disseminated by the Consolidated Tape Association (“CTA”) (such data feeds, the “NMS feeds”). CTA is responsible for disseminating consolidated, real-time trade and quote information in NYSE listed securities (Network A) and NYSE MKT, NYSE Arca and other regional exchanges' listed securities (Network B) pursuant to a national market system plan.
In order to connect to an Included Data Product, a User enters into a contract with the provider of such data, pursuant to which the User is charged for the Included Data Product. After the User and data provider enter into the contract and the Exchange receives authorization from the provider of the data feed, the Exchange provides the User with connectivity to the Included Data Product over the User's LCN or IP network port. The Exchange does not charge the User separately for such connectivity to the Included Data Product, as it is included in the purchase of the access to the LCN or IP network.
The Included Data Products are available over both the LCN and IP network.
Users may connect to an Included Data Product as a resilient feed or as individual Feeds A and B.
The Included Data Products are as follows:
In addition to the above list of Included Data Products, the Exchange proposes to add the following language to the Price List and Fee Schedule:
When a User purchases access to the LCN or IP network it receives connectivity to any of the Included Data Products that it selects, subject to any technical provisioning requirements and authorization from the provider of the data feed. Market data fees for the Included Data Products are charged by the provider of the data feed. A User can change the Included Data Products to which it receives connectivity at any time, subject to authorization from the provider of the data feed. The Exchange is not the exclusive method to connect to the Included Data Products.
The Exchange offers Users connectivity to Premium NYSE Data Products from the Exchange and its Affiliate SROs over Users' LCN and IP network connections. The Exchange proposes to revise the Price List and Fee Schedule to specify the connectivity fees for Premium NYSE Data Products.
The Premium NYSE Data Products are equity market data products that are variants of the equity Included Data Products. Each Premium NYSE Data Product integrates, or includes data elements from, several Included Data Products.
By contrast, while some of the Included Data Products include data elements from other Included Data Products, no single Included Data Product includes as much data as a Premium NYSE Data Product for the same market. With the exception of NYSE Arca Order Imbalances, the equity Included Data Products were introduced before the Premium Data Products.
There are no Premium NYSE Data Products for the NYSE Amex Options or NYSE Arca Options markets, as there are no options data products that integrate, or include data elements from, other option data products in the same manner that the NYSE, NYSE MKT and NYSE Arca Integrated Feeds integrate, or include data elements from, equity Included Data Products.
In order to connect to a Premium NYSE Data Product, a User enters into a contract with the provider of such data, pursuant to which it is charged for the Premium NYSE Data Product. After the data provider and User enter into the contract and the Exchange receives authorization from the data provider, the Exchange provides the User with connectivity to the Premium NYSE Data Product over the User's LCN or IP network port. The Exchange charges the User for the connectivity to the Premium NYSE Data Product. A User only receives, and is only charged for, connectivity to the Premium NYSE Data Product feeds that it selects.
The Premium NYSE Data Products are available over both the LCN and IP network.
A User can opt to connect to a Premium NYSE Data Product as a resilient feed or as Feed A or Feed B. Connectivity to the two identical Feeds A and B is only available on the IP network.
The Exchange charges a monthly recurring fee for connectivity to Premium NYSE Data Products. The following table shows the Premium NYSE Data Products and corresponding monthly recurring connectivity fees.
In addition to the connectivity fees, the Exchange proposes to add the following language to the Price List and Fee Schedule:
Pricing for Premium NYSE Data Products is for connectivity only. Connectivity to Premium NYSE Data Products is subject to any technical provisioning requirements and authorization from the provider of the data feed. Market data fees for the Premium NYSE Data Products are charged by the provider of the data feed. The Exchange is not the exclusive method to connect to Premium NYSE Data Products.
The Exchange proposes to revise the Price List and Fee Schedule to provide that Users may obtain connectivity to Third Party Systems of multiple third party markets and other content service providers for a fee. Users connect to Third Party Systems over the IP network.
In order to obtain access to a Third Party System, a User enters into an agreement with the relevant third party content service provider, pursuant to which the third party content service provider charges the User for access to the Third Party System. The Exchange then establishes a unicast connection between the User and the relevant third party content service provider over the IP network. The Exchange charges the User for the connectivity to the Third Party System. A User only receives, and is only charged for, access to Third Party Systems for which it enters into agreements with the third party content service provider.
With the exception of the ICE feed,
The Exchange charges a monthly recurring fee for connectivity to a Third Party System. Specifically, when a User requests access to a Third Party System, it identifies the applicable third party market or other content service provider and what bandwidth connection it requires.
The monthly recurring fee the Exchange charges Users for unicast connectivity to each Third Party System varies by the bandwidth of the connection, as follows:
The Exchange provides connectivity to the following Third Party Systems:
In addition to the connectivity fees, the Exchange proposes to add language
Pricing for access to the execution systems of third party markets and other service providers (Third Party Systems) is for connectivity only. Connectivity to Third Party Systems is subject to any technical provisioning requirements and authorization from the provider of the data feed. Connectivity to Third Party Systems is over the IP network. Any applicable fees are charged independently by the relevant third party content service provider. The Exchange is not the exclusive method to connect to Third Party Systems.
The Exchange proposes to revise the Price List and Fee Schedule to provide that Users may obtain connectivity to Third Party Data Feeds for a fee. The Exchange receives Third Party Data Feeds from multiple national securities exchanges and other content service providers at its data center. It then provides connectivity to that data to Users for a fee. With the exceptions of Global OTC and NYSE Global Index, Users connect to Third Party Data Feeds over the IP network.
The Exchange notes that charging Users a monthly fee for connectivity to Third Party Data Feeds is consistent with the monthly fee Nasdaq charges its co-location customers for connectivity to third party data. For instance, Nasdaq charges its co-location customers monthly fees of $1,500 and $4,000 for connectivity to BATS Y and BATS, respectively, and of $2,500 for connectivity to EDGA or EDGX.
In order to connect to a Third Party Data Feed, a User enters into a contract with the relevant third party market or other content service provider, pursuant to which the content service provider charges the User for the Third Party Data Feed. The Exchange receives the Third Party Data Feed over its fiber optic network and, after the data provider and User enter into the contract and the Exchange receives authorization from the data provider, the Exchange re-transmits the data to the User over the User's port. The Exchange charges the User for the connectivity to the Third Party Data Feed. A User only receives, and is only charged for, connectivity to the Third Party Data Feeds for which it enters into contracts.
With the exception of the Intercontinental Exchange (“ICE”), Global OTC and NYSE Global Index feeds,
The Exchange charges a monthly recurring fee for connectivity to each Third Party Data Feed. The monthly recurring fee is per Third Party Data Feed, with the exception that the monthly recurring feed for SuperFeed and MSCI varies by the bandwidth of the connection. Depending on its needs and bandwidth, a User may opt to receive all or some of the feeds or services included in a Third Party Data Feed.
The following table shows the feeds that connectivity to each Third Party Data Feed provides, together with the applicable monthly recurring fee.
In addition to the above connectivity fees, the Exchange proposes to add the following language to the Price List and Fee Schedule:
Pricing for data feeds from third party markets and other content service providers (Third Party Data Feeds) is for connectivity only. Connectivity to Third Party Data Feeds is subject to any technical provisioning requirements and authorization from the provider of the data feed. Connectivity to Third Party Data Feeds is over the IP network, with the exception that Users can connect to Global OTC and NYSE Global Index over the IP network or LCN. Market data fees are charged independently by the relevant third party market or content service provider. The Exchange is not the exclusive method to connect to Third Party Data Feeds.
Third Party Data Feed providers may charge redistribution fees, such as Nasdaq's Extranet Access Fees and OTC Markets Group's Access Fees.
The Exchange provides third party markets or content providers that are also Users connectivity to their own Third Party Data Feeds. The Exchange does not charge Users that are third party markets or content providers for connectivity to their own feeds, as in the Exchange's experience such parties
The Exchange offers Users connectivity to third party certification and testing feeds. Certification feeds are used to certify that a User conforms to any of the relevant content service provider's requirements for accessing Third Party Systems or receiving Third Party Data, while testing feeds provide Users an environment in which to conduct tests with non-live data.
The Exchange proposes to revise the Price List and Fee Schedule to include connectivity to third party certification and testing feeds. The Exchange charges a connectivity fee of $100 per month per feed.
The Exchange proposes to add the following connectivity fees and language to the Price List and Fee Schedule:
The Exchange provides connectivity to third party testing and certification feeds provided by third party markets and other content service providers. Pricing for third party testing and certification feeds is for connectivity only. Connectivity to third party testing and certification feeds is subject to any technical provisioning requirements and authorization from the provider of the data feed. Connectivity to third party testing and certification feeds is over the IP network. Any applicable fees are charged independently by the relevant third party market or content service provider. The Exchange is not the exclusive method to connect to third party testing and certification feeds.
The Exchange provides Users connectivity to DTCC for clearing, fund transfer, insurance, and settlement services.
In order to connect to DTCC, a User enters into a contract with DTCC, pursuant to which DTCC charges the User for the services provided. The Exchange receives the DTCC feed over its fiber optic network and, after DTCC and the User enter into the services contract and the Exchange receives authorization from DTCC, the Exchange provides connectivity to DTCC to the User over the User's IP network port. The Exchange charges the User for the connectivity to DTCC.
Connectivity to DTCC does not provide access or order entry to the Exchange's execution system, and a User's connection to DTCC is not through the Exchange's execution system.
The Exchange proposes to add the following connectivity fees and language to the Price List and Fee Schedule:
Pricing for connectivity to DTCC feeds is for connectivity only. Connectivity to DTCC feeds is subject to any technical provisioning requirements and authorization from DTCC. Connectivity to DTCC feeds is over the IP network. Any applicable fees are charged independently by DTCC. The Exchange is not the exclusive method to connect to DTCC feeds.
Finally, the Exchange proposes to revise the Price List and Fee Schedule to offer VCCs between two Users. VCCs are connections between two points over dedicated bandwidth using the IP network. A VCC (previously called a “peer to peer” connection) is a two-way connection which the two participants can use for any purpose.
The Exchange bills the User requesting the VCC, but will not set up a VCC until the other User confirms that it wishes to have the VCC set up.
The Exchange proposes to revise the Price List and Fee Schedule to include VCCs between two Users. The fee for VCCs is based on the bandwidth utilized, as follows:
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed changes remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering Access and Connectivity, the Exchange gives each User additional options for addressing its access and connectivity needs, responding to User demand for access and connectivity options. Providing Access and Connectivity helps each User tailor its data center operations to the requirements of its business operations by allowing it to select the form and latency of access and connectivity that best suits its needs. The Exchange provides Access and Connectivity as conveniences to Users. Use of Access or Connectivity is completely voluntary, and each User has several other access and connectivity options available to it. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the SFTI network, or a combination thereof.
Co-location was created to permit Users “to rent space on premises controlled by the Exchange in order that they may locate their electronic servers in close physical proximity to the Exchange's trading and execution systems.”
The Exchange believes that providing access to Third Party Systems and connectivity to Premium NYSE Data Products, Third Party Data Feeds, third party testing and certification feeds and DTCC, as well as revising the Price List and Fee Schedule to describe such services, would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because the proposed changes would make the descriptions of market participants' access and connectivity options and the related fees more accessible and transparent, thereby providing market participants with clarity as to what options for connectivity are available to them and what the related costs are.
In addition, the Exchange believes that providing connectivity to third party testing and certification feeds removes impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest because such feeds provide Users an environment in which to conduct tests with non-live data, including testing for upcoming releases and product enhancements or the User's own software development, and allow Users to certify conformance to any applicable technical requirements.
Similarly, the Exchange believes that providing connectivity to DTCC removes impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest because it provides efficient connection to clearing, fund transfer, insurance, and settlement services.
The Exchange believes that providing Users with VCCs removes impediments to, and perfects the mechanisms of, a free and open market and a national market system because VCCs provide each User with an additional option for connectivity to another User, helping it tailor its data center operations to the requirements of its business operations by allowing it to select the form of connectivity that best suits its needs. The Exchange provides VCCs as a convenience to Users. Use of a VCC is completely voluntary. As an alternative to an Exchange-provided VCC, a User may connect to another User through a cross connect.
The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,
The Exchange believes that the proposed fees changes are consistent with Section 6(b)(4) of the Act for multiple reasons. The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
The Exchange believes that the services and fees proposed herein are equitably allocated and not unfairly discriminatory because, in addition to the services being completely voluntary, they are available to all Users on an equal basis (
The Exchange believes that the services and fees proposed herein are reasonable, equitably allocated and not unfairly discriminatory because the Exchange provides Access and Connectivity as conveniences to Users. Use of Access or Connectivity is completely voluntary, and each User has several other access and connectivity options available to it. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the SFTI network, or a combination thereof. Users that opt to use Access or Connectivity would not receive access or connectivity that is not available to all Users, as all market participants that contract with the relevant market or content provider may receive access or connectivity. Similarly, the Exchange provides VCCs between Users as a convenience to Users. Use of a VCC is completely voluntary. As an alternative to an Exchange-provided VCC, a User may connect to another User through a cross connect.
Overall, the Exchange believes that the proposed charges are reasonable, equitably allocated and not unfairly discriminatory because the Exchange offers Access, Connectivity, and VCCs as conveniences to Users, and in doing so incurs certain costs. The expenses incurred and resources expended by the Exchange to provide these services generally include costs related to the data center facility hardware and technology infrastructure; maintenance and operational costs, such as the costs of responding to any production issues; and the costs related to the personnel required for initial installation and administration, monitoring, support and maintenance of such services. Since the inception of co-location, the Exchange has made numerous improvements to the network hardware and technology infrastructure and has established additional administrative controls. The Exchange has expanded the network infrastructure to keep pace with the increased number of services available to Users, including the increasing bandwidth required for Access and Connectivity, including resilient and redundant feeds. For example, the Exchange must ensure that the network infrastructure has the necessary bandwidth for connectivity to the Premium NYSE Data Products as well as the Included Data Products, as on a typical trading day no single Included Data Product will require as much bandwidth as a Premium NYSE Data Product for the same market. In addition, the Exchange incurs certain costs specific to providing connectivity to Third Party Data Feeds, Third Party Systems, third party testing and certification feeds and DTCC, including the costs of maintaining multiple connections to each Third Party Data Feed, Third Party System, and DTCC, allowing the Exchange to provide resilient and redundant connections; adapting to any changes made by the relevant third party; and covering any applicable fees (other than redistribution fees) charged by the relevant third party, such as port fees.
As noted above, co-location was created to permit Users “to rent space on premises controlled by the Exchange in order that they may locate their electronic servers in close physical proximity to the Exchange's trading and execution systems.”
In addition, the Exchange believes that including access to the Exchange Systems and connectivity to the Included Data Products with the purchase of access to the LCN or IP network is reasonable and not unfairly discriminatory because Users are not required to use any of their bandwidth to access Exchange Systems or connect to an Included Data Product unless they wish to do so. Rather, a User only receives access to the Exchange Systems and connectivity to the Included Data Products that it selects, and a User can change which of such access or connections it receives at any time, subject to authorization from the data provider or relevant Exchange or Affiliate SRO. Including access to the Exchange Systems and connectivity to the Included Data Products with the purchase of access to the LCN or IP network is a decision based on an assessment of the competitive landscape. As noted above, the Exchange operates in a highly competitive market. If a particular exchange charges excessive fees for co-location services—such as excessive fees for access to the local area network within the exchange's colocation space—affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative
The Premium NYSE Data Products are equity market data products that are variants of the equity Included Data Products. Each Premium NYSE Data Product integrates, or includes data elements from, several Included Data Products. Charging separate fees for connectivity to Premium NYSE Data Products, as opposed to Included Data Products, is a decision based on an assessment of the competitive landscape. The Exchange believes that it is reasonable and not unfairly discriminatory to charge Users for connectivity to Premium NYSE Data Products because Users are not required to use any of their bandwidth to connect to a Premium NYSE Data product unless they wish to do, and each User has several other connectivity options available to it. The expenses incurred and resources expended by the Exchange to offer connectivity to the Premium NYSE Data Products include costs related to the data center facility hardware and technology infrastructure, such as the cost of ensuring that the network infrastructure has the necessary bandwidth for the Premium NYSE Data Products; maintenance and operational costs, such as the costs of responding to any production issues; and the costs related to the personnel required for initial installation and administration, monitoring, support and maintenance of the connectivity. By charging only those Users that receive connectivity to a Premium NYSE Data Product, only the Users that directly benefit from such connectivity support its cost.
The Exchange believes that its fees for connectivity to Premium NYSE Data Products are reasonable because they allow the Exchange to defray or cover the costs associated with offering Users connectivity to Premium NYSE Data Products while providing Users the benefit of reduced latency when connecting to data feeds that integrate, or include data elements from, several Included Data Products. Charging separate connectivity fees for Premium NYSE Data Products is a decision based on an assessment of the competitive landscape. As noted above, the Exchange operates in a highly competitive market. If a particular exchange charges excessive fees for co-location services—such as excessive fees for connectivity to the exchange's market data—affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies. Although Nasdaq does not include connectivity to any of the Premium NYSE Data Products in its co-location services, the Exchange believes that the proposed fees are generally consistent with the fees that a Nasdaq co-location customer would pay for connectivity to the individual feeds included in a Premium NYSE Data Product. For example, the NYSE Integrated Feed includes, among other things, information available from three of the Included Data Products: NYSE OpenBook, NYSE Trades, and NYSE Order Imbalances. Nasdaq offers connectivity to two of those feeds, OpenBook Ultra and NYSE Trades, for which it would charge a co-located customer a combined monthly fee of $2,600.
The Exchange believes that charging separate connectivity fees for Third Party Data Feeds and access to Third Party Systems, third party testing and certification feeds and connectivity to DTCC is reasonable and not unfairly discriminatory because, in the Exchange's experience, not all Users connect to Third Party Data Feeds, Third Party Systems, third party testing and certification feeds or DTCC. By charging only those Users that receive such connectivity, only the Users that directly benefit from it support its cost. In addition, Users are not required to use any of their bandwidth to connect to Third Party Data Feeds, third party testing and certification feeds or DTCC, or to access Third Party Systems, unless they wish to do so.
The Exchange believes the fees for connectivity to Third Party Data Feeds are reasonable because they allow the Exchange to defray or cover the costs associated with offering Users connectivity to Third Party Data Feeds while providing Users the convenience of receiving such Third Party Data Feeds within co-location, helping them tailor their data center operations to the requirements of their business operations by allowing them to select the form and latency of connectivity that best suits their needs. The Exchange believes that its proposed charges for connectivity to Third Party Data Feeds are similar to the connectivity fees Nasdaq imposes on its co-location customers. For instance, Nasdaq charges its co-location customers monthly fees of $1,500 and $4,000 for connectivity to BATS Y and BATS, respectively, and of $2,500 for connectivity to EDGA or EDGX.
The Exchange believes that its connectivity fees for access to Third Party Systems are reasonable because they allow the Exchange to defray or cover the costs associated with offering such access while providing Users the convenience of being able to access such Third Party Systems, helping them tailor their data center operations to the requirements of their business operations by allowing them to select the form and latency of connectivity that best suits their needs. Similarly, the Exchange believes that its fees for connectivity to DTCC are reasonable because they allow the Exchange to defray or cover the costs associated with offering such access while providing Users the benefit of an efficient connection to clearing, fund transfer, insurance, and settlement services.
The monthly recurring fees the Exchange charges Users for connectivity to Third Party Systems, the MSCI and SuperFeed Third Party Data Feeds, and DTCC, as well as for VCCs between Users, vary by the bandwidth of the connection. The Exchange also believes such fees are reasonable because the monthly recurring fee varies by the bandwidth of the connection, and so is generally proportional to the bandwidth required. The Exchange notes that some of the monthly recurring fees for connectivity to SuperFeed and DTCC differ from the fees for the other connections of the same bandwidth. The Exchange believes that such difference in pricing is reasonable, equitably allocated and not unfairly discriminatory because, although the bandwidth may be the same, the competitive considerations and the costs the Exchange incurs in providing such connections and VCCs may differ.
The Exchange also believes that its connectivity fees for access to third party testing and certification feeds are reasonable because they allow the Exchange to defray or cover the costs associated with offering such access while providing Users the benefit of having an environment in which to conduct tests with non-live data, including testing for upcoming releases and product enhancements or the User's own software development, and to certify conformance to any applicable technical requirements.
The Exchange believes it is reasonable that redistribution fees charged by providers of Third Party Data Feeds are passed through to the User, without change to the fee. If not passed through, the cost of the re-distribution fees would be factored into the proposed fees for connectivity to Third Party Data Feeds. The Exchange believes that passing through the fees makes them more transparent to the User, allowing the User to better assess the cost of the connectivity to a Third Party Data Feed by seeing the individual components of the cost,
The Exchange believes that it is reasonable that it does not charge third party markets or content providers for connectivity to their own Third Party Data Feeds, as in the Exchange's experience such parties generally receive their own feeds for purposes of diagnostics and testing. The Exchange believes that it removes impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest to facilitate such diagnostics and testing.
Finally, the Exchange also believes that its fees for VCCs between two Users are reasonable because they allow the Exchange to defray or cover the costs associated with offering such VCCs while providing Users the benefit of an additional option for connectivity to another User, helping them tailor their data center operations to the requirements of their business operations by allowing them to select the form of connectivity that best suits their needs. As an alternative to an Exchange-provided VCC, a User may connect to another User through a cross connect.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users with access to the Exchange Systems and Third Party Systems and connectivity to NYSE Data Products, Third Party Data Feeds, third party testing and certification feeds, and DTCC does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such Access and Connectivity satisfies User demand for access and connectivity options, and each User has several other access and connectivity options available to it. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the SFTI network, or a combination thereof. Users that opt to use Access or Connectivity would not receive access or connectivity that is not available to all Users, as all market participants that contract with the relevant market or content provider may receive access or connectivity. In this way, the proposed changes would enhance competition by helping Users tailor their Access and Connectivity to the needs of their business operations by allowing them to select the form and latency of access and connectivity that best suits their needs.
Similarly, the Exchange believes that providing VCCs between Users does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because providing VCCs satisfies User demand for an alternative to cross connects.
The Exchange believes that revising the Price List and Fee Schedule to provide a more detailed description of the Access and Connectivity available to Users would make such descriptions more accessible and transparent, thereby providing market participants with clarity as to what Access and Connectivity is available to them and what the related costs are, thereby enhancing competition by ensuring that all Users have access to the same information regarding Access and Connectivity.
Finally, the Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 5, 2016, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On June 30, 2016, pursuant to section 19(b)(2) of the Act,
This order institutes proceedings under section 19(b)(2)(B) of the Act
The Exchange proposes to list and trade the Shares under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares. The Shares will be offered by the Trust, which is registered with the Commission as an open-end management investment company. NGAM Advisors, L.P. will serve as the investment adviser and administrator to the Fund (“Adviser”). Natixis Asset Management U.S., LLC will serve as the Fund's sub-adviser (“Sub-Adviser”). State Street Bank and Trust Company will serve as custodian and transfer agent for the Fund.
The Exchange states that, under normal circumstances,
The Exchange states that, while the Fund, under normal circumstances, will invest primarily (more than 50% of its assets) in non-U.S. equity securities, as described above, the Fund will invest its remaining assets in the securities and financial instruments described below (“Non-Principal Investments”).
The Fund may invest in: certificates of deposit; time deposits, which are non-negotiable deposits maintained in a bank for a specified period of time up to seven days at a stated interest rate; and bankers' acceptances, which are credit instruments evidencing the obligation of a bank to pay a draft drawn on it by a customer.
The Fund also may purchase U.S. dollar-denominated obligations issued by foreign branches of domestic banks or foreign branches of foreign banks (“Eurodollar” obligations) and domestic branches of foreign banks (“Yankee dollar” obligations).
The Fund may invest in the following U.S. government securities: U.S. Treasury Bills; U.S. Treasury Notes and Bonds; U.S. Treasury Floating Rate Notes; and Treasury Inflation-Protected Securities.
The Fund may invest in other investment companies, including exchange-traded funds. The Fund may invest in U.S. or foreign exchange-traded real estate investment trusts (“REITs”).
The Fund may invest in preferred stock traded on a U.S. or foreign exchange or OTC.
The Fund may invest in the following foreign debt securities, all or a portion of which may be non-U.S. dollar-denominated: (1) Debt obligations issued or guaranteed by non-U.S. national, provincial, state, municipal or other governments or by their agencies or instrumentalities, including “Brady Bonds”; (ii) debt obligations of supranational entities; (iii) debt obligations of the U.S. government issued in non-dollar securities; (iv) debt obligations and other fixed-income securities of foreign corporate issuers;
The Fund may engage in foreign currency transactions for both hedging and investment purposes. To protect against a change in the foreign currency exchange rate between the date on which the Fund contracts to purchase or sell a security and the settlement date for the purchase or sale, to gain exposure to one or more foreign currencies or to “lock in” the equivalent of a dividend or interest payment in another currency, the Fund might purchase or sell a foreign currency on a spot (
The Fund may enter into repurchase agreements.
The Fund may invest in money market instruments. Money market instruments are high-quality, short-term securities.
The Fund may invest in U.S. equity securities (other than Depositary Receipts) that are traded on a U.S. exchange or OTC.
The Commission is instituting proceedings pursuant to section 19(b)(2)(B) of the Act
Pursuant to section 19(b)(2)(B) of the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by September 16, 2016. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by September 30, 2016.
The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice,
1. In general, do commenters believe that the proposal is consistent with the requirements of section 6(b)(5) of the Act, which requires that the rules of a national securities exchange be designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest?
2. What are commenters' views regarding the lack of quantitative requirements proposed with respect to certain Non-Principal Investments (
3. What are commenters' views regarding whether the proposal is adequate, with respect to Non-Principal Investments, to ensure adequate pricing transparency for assets held in the Fund's portfolio?
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)
The Exchange proposes to amend the co-location services offered by the Exchange as follows: (1) To provide additional information regarding the access to trading and execution services and connectivity to data provided to Users with local area networks available in the data center; and (2) to establish fees relating to User's access to trading and execution services; connectivity to data feeds and to testing and certification feeds; access to clearing; and other services. In addition, this proposed rule change reflects changes to the NYSE Arca Options Fee Schedule (the “Options Fee Schedule”) and, through its wholly owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”), the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (the “Equities Fee Schedule” and, together with the Options Fee Schedule, the “Fee Schedules”) related to these co-location services. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the co-location
More specifically, the Exchange proposes to revise the Fee Schedules to include:
a. A more detailed description of the access to the trading and execution systems of the Exchange and its Affiliate SROs (the “Exchange Systems”) and connectivity to certain market data products (the “Included Data Products”) that Users receive with connections to the Liquidity Center Network (“LCN”) and internet protocol (“IP”) network, local area networks available in the data center;
b. fees for connectivity to:
• Certain other market data products of the Exchange and its Affiliate SROs (the “Premium NYSE Data Products” and, together with the Included Data Products, the “NYSE Data Products”);
• access to the execution systems of third party markets and other content service providers (“Third Party Systems”);
• data feeds from third party markets and other content service providers (the “Third Party Data Feeds”);
• third party testing and certification feeds;
• Depository Trust & Clearing Corporation (“DTCC”) services; and
c. fees for virtual control circuits (“VCCs”) between two Users. VCCs are unicast connections between two participants over dedicated bandwidth.
The Exchange provides access to the Exchange Systems and Third Party Systems (together, “Access”) and connectivity to NYSE Data Products, Third Party Data Feeds, third party testing and certification feeds, and DTCC (collectively, “Connectivity”) as conveniences to Users. Use of Access or Connectivity is completely voluntary, and several other access and connectivity options are available to a User. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the Exchange's Secure Financial Transaction Infrastructure (“SFTI”) network, or a combination thereof.
Similarly, the Exchange provides VCCs as a convenience to Users. Use of a VCC is completely voluntary. As an alternative to an Exchange-provided VCC, a User may connect to another User through a fiber connection (“cross connect”).
As the Exchange has previously stated, a User's connection to the LCN or IP network provides it access to the Exchange Systems and Exchange market data products.
Access to certification and testing feeds comes with the purchase of access to the Exchange Systems and connectivity to many of the NYSE Data Products. Such feeds, which are solely used for certification and testing and do not carry live production data, are only available over the IP network.
The Exchange offers connectivity to NYSE Data Products in three forms: As a resilient feed, as “Feed A” or as “Feed B.” Resilient feeds include two copies of the same feed, for redundancy purposes. Feed A and Feed B are identical feeds.
As the Exchange has previously stated, Users' connections to the LCN or IP networks include access to Exchange Systems.
When a User purchases access to the LCN or IP network, it receives the ability to connect to the trading and execution systems of the NYSE, NYSE MKT and NYSE Arca
Currently, there are three categories of data feeds for which the Exchange offers Users connectivity: Included Data Products; Premium NYSE Data Products; and Third Party Data.
The Included Data Products include the data feeds disseminated by the Consolidated Tape Association (“CTA”) (such data feeds, the “NMS feeds”). CTA is responsible for disseminating consolidated, real-time trade and quote information in NYSE listed securities (Network A) and NYSE MKT, NYSE Arca and other regional exchanges' listed securities (Network B) pursuant to a national market system plan.
In order to connect to an Included Data Product, a User enters into a contract with the provider of such data, pursuant to which the User is charged for the Included Data Product. After the User and data provider enter into the contract and the Exchange receives authorization from the provider of the data feed, the Exchange provides the User with connectivity to the Included Data Product over the User's LCN or IP network port. The Exchange does not charge the User separately for such connectivity to the Included Data Product, as it is included in the purchase of the access to the LCN or IP network.
The Included Data Products are available over both the LCN and IP network.
Users may connect to an Included Data Product as a resilient feed or as individual Feeds A and B.
The Included Data Products are as follows:
In addition to the above list of Included Data Products, the Exchange proposes to add the following language to the Fee Schedules:
When a User purchases access to the LCN or IP network it receives connectivity to any of the Included Data Products that it selects, subject to any technical provisioning requirements and authorization from the provider of the data feed. Market data fees for the Included Data Products are charged by the provider of the data feed. A User can change the Included Data Products to which it receives connectivity at any time, subject to authorization from the provider of the data feed. The Exchange is not the exclusive method to connect to the Included Data Products.
The Exchange offers Users connectivity to Premium NYSE Data Products from the Exchange and its Affiliate SROs over Users' LCN and IP network connections. The Exchange proposes to revise the Fee Schedules to specify the connectivity fees for Premium NYSE Data Products.
The Premium NYSE Data Products are equity market data products that are variants of the equity Included Data Products. Each Premium NYSE Data Product integrates, or includes data elements from, several Included Data Products.
By contrast, while some of the Included Data Products include data elements from other Included Data Products, no single Included Data Product includes as much data as a Premium NYSE Data Product for the same market. With the exception of NYSE Arca Order Imbalances, the equity Included Data Products were introduced before the Premium Data Products.
There are no Premium NYSE Data Products for the NYSE Amex Options or NYSE Arca Options markets, as there are no options data products that integrate, or include data elements from,
In order to connect to a Premium NYSE Data Product, a User enters into a contract with the provider of such data, pursuant to which it is charged for the Premium NYSE Data Product. After the data provider and User enter into the contract and the Exchange receives authorization from the data provider, the Exchange provides the User with connectivity to the Premium NYSE Data Product over the User's LCN or IP network port. The Exchange charges the User for the connectivity to the Premium NYSE Data Product. A User only receives, and is only charged for, connectivity to the Premium NYSE Data Product feeds that it selects.
The Premium NYSE Data Products are available over both the LCN and IP network.
A User can opt to connect to a Premium NYSE Data Product as a resilient feed or as Feed A or Feed B. Connectivity to the two identical Feeds A and B is only available on the IP network.
The Exchange charges a monthly recurring fee for connectivity to Premium NYSE Data Products. The following table shows the Premium NYSE Data Products and corresponding monthly recurring connectivity fees.
In addition to the connectivity fees, the Exchange proposes to add the following language to the Fee Schedules:
Pricing for Premium NYSE Data Products is for connectivity only. Connectivity to Premium NYSE Data Products is subject to any technical provisioning requirements and authorization from the provider of the data feed. Market data fees for the Premium NYSE Data Products are charged by the provider of the data feed. The Exchange is not the exclusive method to connect to Premium NYSE Data Products.
The Exchange proposes to revise the Fee Schedules to provide that Users may obtain connectivity to Third Party Systems of multiple third party markets and other content service providers for a fee. Users connect to Third Party Systems over the IP network.
In order to obtain access to a Third Party System, a User enters into an agreement with the relevant third party content service provider, pursuant to which the third party content service provider charges the User for access to the Third Party System. The Exchange then establishes a unicast connection between the User and the relevant third party content service provider over the IP network. The Exchange charges the User for the connectivity to the Third Party System. A User only receives, and is only charged for, access to Third Party Systems for which it enters into agreements with the third party content service provider.
With the exception of the ICE feed,
The Exchange charges a monthly recurring fee for connectivity to a Third Party System. Specifically, when a User requests access to a Third Party System, it identifies the applicable third party market or other content service provider and what bandwidth connection it requires.
The monthly recurring fee the Exchange charges Users for unicast connectivity to each Third Party System varies by the bandwidth of the connection, as follows:
The Exchange provides connectivity to the following Third Party Systems:
In addition to the connectivity fees, the Exchange proposes to add language to the Fee Schedules stating the following:
Pricing for access to the execution systems of third party markets and other service providers (Third Party Systems) is for connectivity only. Connectivity to Third Party Systems is subject to any technical provisioning requirements and authorization from the provider of the data feed. Connectivity to Third Party Systems is over the IP network. Any applicable fees are charged independently by the relevant third party content service provider. The Exchange is not the exclusive method to connect to Third Party Systems.
The Exchange proposes to revise the Fee Schedules to provide that Users may obtain connectivity to Third Party Data Feeds for a fee. The Exchange receives Third Party Data Feeds from multiple national securities exchanges and other content service providers at its data center. It then provides connectivity to that data to Users for a fee. With the exceptions of Global OTC and NYSE Global Index, Users connect to Third Party Data Feeds over the IP network.
The Exchange notes that charging Users a monthly fee for connectivity to Third Party Data Feeds is consistent with the monthly fee Nasdaq charges its co-location customers for connectivity to third party data. For instance, Nasdaq charges its co-location customers monthly fees of $1,500 and $4,000 for connectivity to BATS Y and BATS, respectively, and of $2,500 for connectivity to EDGA or EDGX.
In order to connect to a Third Party Data Feed, a User enters into a contract with the relevant third party market or other content service provider, pursuant to which the content service provider charges the User for the Third Party Data Feed. The Exchange receives the Third Party Data Feed over its fiber optic network and, after the data provider and User enter into the contract and the Exchange receives authorization from the data provider, the Exchange re-transmits the data to the User over the User's port. The Exchange charges the User for the connectivity to the Third Party Data Feed. A User only receives, and is only charged for, connectivity to the Third Party Data Feeds for which it enters into contracts.
With the exception of the Intercontinental Exchange (“ICE”), Global OTC and NYSE Global Index feeds,
The Exchange charges a monthly recurring fee for connectivity to each Third Party Data Feed. The monthly recurring fee is per Third Party Data Feed, with the exception that the monthly recurring feed for SuperFeed and MSCI varies by the bandwidth of the connection. Depending on its needs and bandwidth, a User may opt to receive all or some of the feeds or services included in a Third Party Data Feed.
The following table shows the feeds that connectivity to each Third Party Data Feed provides, together with the applicable monthly recurring fee.
In addition to the above connectivity fees, the Exchange proposes to add the following language to the Fee Schedules:
Pricing for data feeds from third party markets and other content service providers (Third Party Data Feeds) is for connectivity only. Connectivity to Third Party Data Feeds is subject to any technical provisioning requirements and authorization from the provider of the data feed. Connectivity to Third Party Data Feeds is over the IP network, with the exception that Users can connect to Global OTC and NYSE Global Index over the IP network or LCN. Market data fees are charged independently by the relevant third party market or content service provider. The Exchange is not the exclusive method to connect to Third Party Data Feeds.
Third Party Data Feed providers may charge redistribution fees, such as Nasdaq's Extranet Access Fees and OTC Markets Group's Access Fees.
The Exchange provides third party markets or content providers that are also Users connectivity to their own Third Party Data Feeds. The Exchange does not charge Users that are third party markets or content providers for connectivity to their own feeds, as in the Exchange's experience such parties generally receive their own feeds for purposes of diagnostics and testing. The Exchange proposes to add language to the Fee Schedules accordingly.
The Exchange offers Users connectivity to third party certification and testing feeds. Certification feeds are used to certify that a User conforms to any of the relevant content service provider's requirements for accessing Third Party Systems or receiving Third Party Data, while testing feeds provide Users an environment in which to conduct tests with non-live data.
The Exchange proposes to revise the Fee Schedules to include connectivity to third party certification and testing feeds. The Exchange charges a connectivity fee of $100 per month per feed.
The Exchange proposes to add the following connectivity fees and language to the Fee Schedules:
The Exchange provides connectivity to third party testing and certification feeds provided by third party markets and other content service providers. Pricing for third party testing and certification feeds is for connectivity only. Connectivity to third party testing and certification feeds is subject to any technical provisioning requirements and authorization from the provider of the data feed. Connectivity to third party testing and certification feeds is over the IP network. Any applicable fees are charged independently by the relevant third party market or content service provider. The Exchange is not the exclusive method to connect to third party testing and certification feeds.
The Exchange provides Users connectivity to DTCC for clearing, fund transfer, insurance, and settlement services.
In order to connect to DTCC, a User enters into a contract with DTCC, pursuant to which DTCC charges the User for the services provided. The Exchange receives the DTCC feed over its fiber optic network and, after DTCC and the User enter into the services contract and the Exchange receives authorization from DTCC, the Exchange provides connectivity to DTCC to the User over the User's IP network port. The Exchange charges the User for the connectivity to DTCC.
Connectivity to DTCC does not provide access or order entry to the Exchange's execution system, and a User's connection to DTCC is not through the Exchange's execution system.
The Exchange proposes to add the following connectivity fees and language to the Fee Schedules:
Pricing for connectivity to DTCC feeds is for connectivity only. Connectivity to DTCC feeds is subject to any technical provisioning requirements and authorization from DTCC. Connectivity to DTCC feeds is over the IP network. Any applicable fees are charged independently by DTCC. The Exchange is not the exclusive method to connect to DTCC feeds.
Finally, the Exchange proposes to revise the Fee Schedules to offer VCCs between two Users. VCCs are connections between two points over dedicated bandwidth using the IP network. A VCC (previously called a “peer to peer” connection) is a two-way connection which the two participants can use for any purpose.
The Exchange bills the User requesting the VCC, but will not set up a VCC until the other User confirms that it wishes to have the VCC set up.
The Exchange proposes to revise the Fee Schedules to include VCCs between two Users. The fee for VCCs is based on the bandwidth utilized, as follows:
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange believes that the proposed changes remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering Access and Connectivity, the Exchange gives each User additional options for addressing its access and connectivity needs, responding to User demand for access and connectivity options. Providing Access and Connectivity helps each User tailor its data center operations to the requirements of its business operations by allowing it to select the form and latency of access and connectivity that best suits its needs. The Exchange provides Access and Connectivity as conveniences to Users. Use of Access or Connectivity is completely voluntary, and each User has several other access and connectivity options available to it. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the SFTI network, or a combination thereof.
Co-location was created to permit Users “to rent space on premises controlled by the Exchange in order that they may locate their electronic servers in close physical proximity to the Exchange's trading and execution systems.”
The Exchange believes that providing access to Third Party Systems and connectivity to Premium NYSE Data Products, Third Party Data Feeds, third party testing and certification feeds and DTCC, as well as revising the Fee Schedules to describe such services, would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because the proposed changes would make the descriptions of market participants' access and connectivity options and the related fees more accessible and transparent, thereby providing market participants with clarity as to what options for connectivity are available to them and what the related costs are.
In addition, the Exchange believes that providing connectivity to third party testing and certification feeds removes impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest because such feeds provide Users an environment in which to conduct tests with non-live data, including testing for upcoming releases and product enhancements or the User's own software development, and allow Users to certify conformance to any applicable technical requirements.
Similarly, the Exchange believes that providing connectivity to DTCC removes impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest because it provides efficient connection to clearing, fund transfer, insurance, and settlement services.
The Exchange believes that providing Users with VCCs removes impediments to, and perfects the mechanisms of, a free and open market and a national market system because VCCs provide each User with an additional option for connectivity to another User, helping it tailor its data center operations to the requirements of its business operations by allowing it to select the form of connectivity that best suits its needs. The Exchange provides VCCs as a convenience to Users. Use of a VCC is completely voluntary. As an alternative to an Exchange-provided VCC, a User may connect to another User through a cross connect.
The Exchange also believes that the proposed rule change is consistent with section 6(b)(4) of the Act,
The Exchange believes that the proposed fees changes are consistent with section 6(b)(4) of the Act for multiple reasons. The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition
The Exchange believes that the services and fees proposed herein are equitably allocated and not unfairly discriminatory because, in addition to the services being completely voluntary, they are available to all Users on an equal basis (
The Exchange believes that the services and fees proposed herein are reasonable, equitably allocated and not unfairly discriminatory because the Exchange provides Access and Connectivity as conveniences to Users. Use of Access or Connectivity is completely voluntary, and each User has several other access and connectivity options available to it. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the SFTI network, or a combination thereof. Users that opt to use Access or Connectivity would not receive access or connectivity that is not available to all Users, as all market participants that contract with the relevant market or content provider may receive access or connectivity. Similarly, the Exchange provides VCCs between Users as a convenience to Users. Use of a VCC is completely voluntary. As an alternative to an Exchange-provided VCC, a User may connect to another User through a cross connect.
Overall, the Exchange believes that the proposed charges are reasonable, equitably allocated and not unfairly discriminatory because the Exchange offers Access, Connectivity, and VCCs as conveniences to Users, and in doing so incurs certain costs. The expenses incurred and resources expended by the Exchange to provide these services generally include costs related to the data center facility hardware and technology infrastructure; maintenance and operational costs, such as the costs of responding to any production issues; and the costs related to the personnel required for initial installation and administration, monitoring, support and maintenance of such services. Since the inception of co-location, the Exchange has made numerous improvements to the network hardware and technology infrastructure and has established additional administrative controls. The Exchange has expanded the network infrastructure to keep pace with the increased number of services available to Users, including the increasing bandwidth required for Access and Connectivity, including resilient and redundant feeds. For example, the Exchange must ensure that the network infrastructure has the necessary bandwidth for connectivity to the Premium NYSE Data products as well as the Included Data Products, as on a typical trading day no single Included Data Product will require as much bandwidth as a Premium NYSE Data Product for the same market. In addition, the Exchange incurs certain costs specific to providing connectivity to Third Party Data Feeds, Third Party Systems, third party testing and certification feeds and DTCC, including the costs of maintaining multiple connections to each Third Party Data Feed, Third Party System, and DTCC, allowing the Exchange to provide resilient and redundant connections; adapting to any changes made by the relevant third party; and covering any applicable fees (other than redistribution fees) charged by the relevant third party, such as port fees.
As noted above, co-location was created to permit Users “to rent space on premises controlled by the Exchange in order that they may locate their electronic servers in close physical proximity to the Exchange's trading and execution systems.”
In addition, the Exchange believes that including access to the Exchange Systems and connectivity to the Included Data Products with the purchase of access to the LCN or IP network is reasonable and not unfairly discriminatory because Users are not required to use any of their bandwidth to access Exchange Systems or connect to an Included Data Product unless they wish to do so. Rather, a User only receives access to the Exchange Systems and connectivity to the Included Data Products that it selects, and a User can change which of such access or connections it receives at any time, subject to authorization from the data provider or relevant Exchange or Affiliate SRO. Including access to the Exchange Systems and connectivity to the Included Data Products with the purchase of access to the LCN or IP network is a decision based on an assessment of the competitive landscape. As noted above, the Exchange operates in a highly competitive market. If a particular exchange charges excessive fees for co-location services—such as excessive fees for access to the local area network within the exchange's colocation space—affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies. The Exchange believes that including connectivity to Included Data Products with the purchase of access to the LCN or IP network is consistent with Nasdaq's colocation service, which, apart from an installation fee, does not charge its co-located customers for connectivity to Nasdaq data.
The Premium NYSE Data Products are equity market data products that are variants of the equity Included Data Products. Each Premium NYSE Data Product integrates, or includes data elements from, several Included Data Products. Charging separate fees for connectivity to Premium NYSE Data
The Exchange believes that its fees for connectivity to Premium NYSE Data Products are reasonable because they allow the Exchange to defray or cover the costs associated with offering Users connectivity to Premium NYSE Data Products while providing Users the benefit of reduced latency when connecting to data feeds that integrate, or include data elements from, several Included Data Products. Charging separate connectivity fees for Premium NYSE Data Products is a decision based on an assessment of the competitive landscape. As noted above, the Exchange operates in a highly competitive market. If a particular exchange charges excessive fees for co-location services—such as excessive fees for connectivity to the exchange's market data—affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies. Although Nasdaq does not include connectivity to any of the Premium NYSE Data Products in its co-location services, the Exchange believes that the proposed fees are generally consistent with the fees that a Nasdaq co-location customer would pay for connectivity to the individual feeds included in a Premium NYSE Data Product. For example, the NYSE Integrated Feed includes, among other things, information available from three of the Included Data Products: NYSE OpenBook, NYSE Trades, and NYSE Order Imbalances. Nasdaq offers connectivity to two of those feeds, OpenBook Ultra and NYSE Trades, for which it would charge a co-located customer a combined monthly fee of $2,600.
The Exchange believes that charging separate connectivity fees for Third Party Data Feeds and access to Third Party Systems, third party testing and certification feeds and connectivity to DTCC is reasonable and not unfairly discriminatory because, in the Exchange's experience, not all Users connect to Third Party Data Feeds, Third Party Systems, third party testing and certification feeds or DTCC. By charging only those Users that receive such connectivity, only the Users that directly benefit from it support its cost. In addition, Users are not required to use any of their bandwidth to connect to Third Party Data Feeds, third party testing and certification feeds or DTCC, or to access Third Party Systems, unless they wish to do so.
The Exchange believes the fees for connectivity to Third Party Data Feeds are reasonable because they allow the Exchange to defray or cover the costs associated with offering Users connectivity to Third Party Data Feeds while providing Users the convenience of receiving such Third Party Data Feeds within co-location, helping them tailor their data center operations to the requirements of their business operations by allowing them to select the form and latency of connectivity that best suits their needs. The Exchange believes that its proposed charges for connectivity to Third Party Data Feeds are similar to the connectivity fees Nasdaq imposes on its co-location customers. For instance, Nasdaq charges its co-location customers monthly fees of $1,500 and $4,000 for connectivity to BATS Y and BATS, respectively, and of $2,500 for connectivity to EDGA or EDGX.
The Exchange believes that its connectivity fees for access to Third Party Systems are reasonable because they allow the Exchange to defray or cover the costs associated with offering such access while providing Users the convenience of being able to access such Third Party Systems, helping them tailor their data center operations to the requirements of their business operations by allowing them to select the form and latency of connectivity that best suits their needs. Similarly, the Exchange believes that its fees for connectivity to DTCC are reasonable because they allow the Exchange to defray or cover the costs associated with offering such access while providing Users the benefit of an efficient connection to clearing, fund transfer, insurance, and settlement services.
The monthly recurring fees the Exchange charges Users for connectivity to Third Party Systems, the MSCI and SuperFeed Third Party Data Feeds, and DTCC, as well as for VCCs between Users, vary by the bandwidth of the connection. The Exchange also believes such fees are reasonable because the monthly recurring fee varies by the bandwidth of the connection, and so is generally proportional to the bandwidth required. The Exchange notes that some of the monthly recurring fees for connectivity to SuperFeed and DTCC differ from the fees for the other connections of the same bandwidth. The Exchange believes that such difference in pricing is reasonable, equitably allocated and not unfairly discriminatory because, although the bandwidth may be the same, the competitive considerations and the costs the Exchange incurs in providing such connections and VCCs may differ.
The Exchange also believes that its connectivity fees for access to third party testing and certification feeds are reasonable because they allow the Exchange to defray or cover the costs associated with offering such access while providing Users the benefit of having an environment in which to conduct tests with non-live data, including testing for upcoming releases and product enhancements or the User's own software development, and to certify conformance to any applicable technical requirements.
The Exchange believes it is reasonable that redistribution fees charged by providers of Third Party Data Feeds are passed through to the User, without change to the fee. If not passed through, the cost of the re-distribution fees would be factored into the proposed fees for connectivity to Third Party Data Feeds. The Exchange believes that passing through the fees makes them more transparent to the User, allowing the User to better assess the cost of the connectivity to a Third Party Data Feed by seeing the individual components of the cost,
The Exchange believes that it is reasonable that it does not charge third
Finally, the Exchange also believes that its fees for VCCs between two Users are reasonable because they allow the Exchange to defray or cover the costs associated with offering such VCCs while providing Users the benefit of an additional option for connectivity to another User, helping them tailor their data center operations to the requirements of their business operations by allowing them to select the form of connectivity that best suits their needs. As an alternative to an Exchange-provided VCC, a User may connect to another User through a cross connect.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with section 6(b)(8) of the Act,
The Exchange believes that providing Users with access to the Exchange Systems and Third Party Systems and connectivity to NYSE Data Products, Third Party Data Feeds, third party testing and certification feeds, and DTCC does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such Access and Connectivity satisfies User demand for access and connectivity options, and each User has several other access and connectivity options available to it. As alternatives to using the Access and Connectivity provided by the Exchange, a User may access or connect to such services and products through another User or through a connection to an Exchange access center outside the data center, third party access center, or third party vendor. The User may make such connection through a third party telecommunication provider, third party wireless network, the SFTI network, or a combination thereof. Users that opt to use Access or Connectivity would not receive access or connectivity that is not available to all Users, as all market participants that contract with the relevant market or content provider may receive access or connectivity. In this way, the proposed changes would enhance competition by helping Users tailor their Access and Connectivity to the needs of their business operations by allowing them to select the form and latency of access and connectivity that best suits their needs.
Similarly, the Exchange believes that providing VCCs between Users does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because providing VCCs satisfies User demand for an alternative to cross connects.
The Exchange believes that revising the Fee Schedules to provide a more detailed description of the Access and Connectivity available to Users would make such descriptions more accessible and transparent, thereby providing market participants with clarity as to what Access and Connectivity is available to them and what the related costs are, thereby enhancing competition by ensuring that all Users have access to the same information regarding Access and Connectivity.
Finally, the Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 11.22 to adopt a new market data product known as BZX Summary Depth.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 11.22 to adopt a new market data product known as BZX Summary Depth. BZX Summary Depth would be a data feed that offers aggregated two-sided quotations for all displayed orders entered into the System
The Market Status message will reflect a change in the status of the Exchange. For example, the Market Status message would indicate whether the Exchange is experiencing a systems issue or disruption resulting in quotation or trade information not currently being disseminated as part of the aggregated BBO. The Market Status message will also indicate when Exchange has resolved a systems issue or disruption and is properly reflecting the status of the aggregated BBO. The Trade Break message will indicate when an execution is broken in accordance with Exchange rules.
The Exchange intends to offer BZX Summary Depth as of January 3, 2017. Prior to January 3, 2017, the Exchange will file a separate rule change with the Commission proposing fees to be charged for BZX Summary Depth.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange also believes that the proposed rule change is consistent with section 11(A) of the Act
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to consumers of such data. It was believed that this authority would expand the amount of data available to users and consumers of such data and also spur innovation and competition for the provision of market data. The Exchange believes that the data products proposed herein are precisely the sort of market data products that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by lessening regulation of the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing “unnecessary regulatory restrictions” on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history.
In addition, BZX Summary Depth removes impediments to and perfects the mechanism of a free and open market and a national market system by providing investors with alternative market data and competing with similar market data products currently offered by the New York Stock Exchange, Inc. (“NYSE”) and the Nasdaq Stock Market LLC (“Nasdaq”).
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section
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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to authorize the Exchange's equity options platform (“EDGX Options”) to amend Rule 21.8 (Order Display and Book Processing).
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange is proposing to amend Rule 21.8 (Order Display and Book Processing), which sets forth the priority and order allocation rules applicable to EDGX Options. Rule 21.8 also describes the general priority rules for EDGX Options, including that quotes and orders are prioritized by price and then on a pro-rata basis according to size as well as various priority overlays applicable to the pro-rata allocation method. Specifically, Rule 21.8(g) (Primary Market Maker Participation Entitlements) allows for an exception to the pro-rata basis in cases of small size orders,
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and in particular, with the requirements of section 6(b) of the Act.
The amended rule will remove reference to Directed Market Makers in the context of the small size order exception. Thus, this amendment will align the Exchange with other options exchanges,
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and in particular, with the requirements of section 6(b) of the Act.
The amended rule will remove reference to Directed Market Makers in the context of the small size order exception. Thus, this amendment will align the Exchange with other options exchanges,
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
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) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as the proposed rule change is a non-substantive change and will promote internal consistency of the Exchange's rulebook and avoid potential confusion as to the application of the Exchange's rules. Therefore, the Commission designates the proposed rule change to be operative as of the date of filing.
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.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 11.22 to adopt a new market data product known as BYX Summary Depth.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 11.22 to adopt a new market data product known as BYX Summary Depth.
The Market Status message will reflect a change in the status of the Exchange. For example, the Market Status message would indicate whether the Exchange is experiencing a systems issue or disruption resulting in quotation or trade information not currently being disseminated as part of the aggregated BBO. The Market Status message will also indicate when Exchange has resolved a systems issue or disruption and is properly reflecting the status of the aggregated BBO. The Retail Liquidity Identifier indicator message will be disseminated pursuant to the Exchange's Retail Price Improvement (“RPI”) Program.
The Exchange intends to offer BYX Summary Depth as of January 3, 2017. Prior to January 3, 2017, the Exchange will file a separate rule change with the Commission proposing fees to be charged for BYX Summary Depth.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange also believes that the proposed rule change is consistent with Section 11(A) of the Act
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to consumers of such data. It was believed that this authority would expand the amount of data available to users and consumers of such data and also spur innovation and competition for the provision of market data. The Exchange believes that the data products proposed herein are precisely the sort of market data products that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by lessening regulation of the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
In addition, BYX Summary Depth removes impediments to and perfects the mechanism of a free and open market and a national market system by providing investors with alternative market data and competing with similar market data products currently offered by the New York Stock Exchange, Inc. (“NYSE”) and the Nasdaq Stock Market LLC (“Nasdaq”).
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) 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 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 13.8 to adopt a new market data product known as EDGA Summary Depth.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 13.8 to adopt a new market data product known as EDGA Summary Depth. EDGA Summary Depth would be a data feed that offers aggregated two-sided quotations for all displayed orders entered into the System
The Market Status message will reflect a change in the status of the Exchange. For example, the Market Status message would indicate whether the Exchange is experiencing a systems issue or disruption resulting in quotation or trade information not currently being disseminated as part of the aggregated BBO. The Market Status message will also indicate when Exchange has resolved a systems issue or disruption and is properly reflecting the status of the aggregated BBO. The Trade Break message will indicate when an execution is broken in accordance with Exchange rules.
The Exchange intends to offer EDGA Summary Depth as of January 3, 2017. Prior to January 3, 2017, the Exchange will file a separate rule change with the Commission proposing fees to be charged for EDGA Summary Depth.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange also believes that the proposed rule change is consistent with section 11(A) of the Act
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to consumers of such data. It was believed that this authority would expand the amount of data available to users and consumers of such data and also spur innovation and competition for the provision of market data. The Exchange believes that the data products proposed
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
In addition, EDGA Summary Depth removes impediments to and perfects the mechanism of a free and open market and a national market system by providing investors with alternative market data and competing with similar market data products currently offered by the New York Stock Exchange, Inc. (“NYSE”) and the Nasdaq Stock Market LLC (“Nasdaq”).
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) 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 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend chapter XV, entitled “Options Pricing,” at section 2, which governs pricing for Exchange members using the NASDAQ Options Market LLC (“NOM”), the Exchange's facility for executing and routing standardized equity and index options. The Exchange proposes to amend certain Penny Pilot Options
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 Exchange proposes to amend NOM pricing at chapter XV, section 2(1) to increase the Customer
The Exchange currently assesses Customers, Professionals, Firms,
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Likewise, in
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers' . . .”
The Exchange's proposal to amend note “3” of chapter XV, section 2(1) to increase the Customer or Professional Penny Pilot Options Fee for Removing Liquidity in SPY from $0.47 to $0.48 per contract is reasonable because the Customer and Professional Penny Pilot Options Fee for Removing Liquidity continues to be lower for SPY as compared to other Penny Pilot Options. The lower fee of $0.48 in SPY, as compared to $0.50 per contract in other Penny Pilot Options, will continue to incentivize Participants to send Customer and Professional order flow in SPY.
The Exchange's proposal to amend note “3” of chapter XV, section 2(1) to increase the Customer or Professional Penny Pilot Options Fee for Removing Liquidity in SPY options from $0.47 to $0.48 per contract is equitable and not unfairly discriminatory because the Customer and Professional Penny Pilot Options Fee for Removing Liquidity continues to be lower for SPY as compared to other Penny Pilot Options. This lower fee for these market participants is equitable and not unfairly discriminatory because 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. The Exchange believes that offering a lower fee to Professionals is equitable and not unfairly discriminatory because it serves to attract more liquidity to NOM to the benefit of other market participants. By offering Professionals, as well as Customers, lower fees, the Exchange hopes to simply remain competitive with other venues so that it remains a choice for market participants when posting orders and the result may be additional Professional order flow for the Exchange, in addition to increased Customer order flow. Further, the Exchange initially established Professional pricing in order to “. . . bring additional revenue to the Exchange.”
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The proposed fee changes are competitive and do not impose a burden on inter-market competition. In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
The Exchange's proposal to amend note “3” of chapter XV, section 2(1) to increase the Customer or Professional Penny Pilot Options Fee for Removing Liquidity in SPY options from $0.47 to $0.48 per contract does not create an undue burden on intra-market competition, rather the proposal will incentivize market participants to send additional SPY order flow to NOM, because Participants sending Customer and Professional order flow will
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to [sic] the Exchange's Schedule of Fees and Charges (“Fee Schedule”) to eliminate the Listing Fee in connection with Exchange listing of certain Exchange Traded Products, effective August 8,
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Exchange's Schedule of Fees and Charges (“Schedule”) to eliminate the Listing Fee applicable to certain issues of Managed Fund Shares listed pursuant to NYSE Arca Equities Rule 8.600, effective August 8, 2016, as described below.
Currently the Exchange's Schedule of Fees and Charges (“Schedule”) does not impose a “Listing Fee” for the following Exchange-Traded Products (“ETPs”)
Other ETPs—specifically, Trust Issued Receipts,
The Commission has recently approved an Exchange proposed rule change that permits generic listing of Managed Fund Shares pursuant to Rule 19b-4(e) under the Act.
The Exchange believes eliminating the Listing Fee for generically-listed Managed Fund Shares would help correlate the Listing Fee applicable to such issues to the resources required to list such issues on the Exchange. The Exchange believes it is appropriate to continue to charge a Listing Fee for ETPs for which a proposed rule change pursuant to Section 19(b) of the Act is required to be filed because of the additional time and resources required by Exchange staff to prepare and review such filings and to communicate with issuers and the Commission regarding such filings. Application of a Listing Fee for Managed Trust Securities is appropriate because the Exchange generally incurs increased costs in connection with the rule-making process, listing administration process, issuer services, and consultative legal services where a proposed rule change pursuant to Section 19(b) of the Act is required to be filed with the Commission.
Annual Fees set forth in the Schedule applicable to ETPs would remain unchanged.
Notwithstanding the elimination of the Listing Fee applicable to generically-listed Managed Fund Shares, as well as the decrease in the Listing Fee for non-generically-listed Managed Fund Shares, as described above, the Exchange will continue to be able to fund its regulatory obligations.
NYSE Arca believes that the proposal is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes the proposed rule change would promote competition because it will eliminate the Listing Fee for generically-listed issues of Managed Fund Shares and will therefore encourage issuers to develop and list additional such issues on the Exchange.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of Louisiana (FEMA-4277-DR), dated 08/14/2016.
Incident: Severe Storms and Flooding.
Incident Period: 08/11/2016 and continuing.
Effective Date: 08/16/2016.
Physical Loan Application Deadline Date: 10/13/2016.
EIDL Loan Application Deadline Date: 05/15/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
Alan Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Louisiana, dated 08/14/2016 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of Louisiana (FEMA-4277-DR), dated 08/14/2016.
Incident: Severe Storms and Flooding.
Incident Period: 08/11/2016 and continuing.
Effective Date: 08/16/2016.
Physical Loan Application Deadline Date: 10/13/2016.
EIDL Loan Application Deadline Date: 05/15/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Louisiana, dated 08/14/2016 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration
Notice of open Federal Advisory Committee Meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the next meeting of the Advisory Committee on Veterans Business Affairs. The meeting is open to the public.
Wednesday, September 14, 2016, from 9:00 a.m. to 4:00 p.m.
Eisenhower Conference Room B on the concourse level, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the Advisory Committee on Veterans Business Affairs (ACVBA). The ACVBA serves as an independent source of advice and policy recommendation to the Administrator of the U.S. Small Business Administration. The purpose of this meeting is to discuss the formation and growth of small business concerns owned and controlled by veterans and service disabled veterans, to focus on strategic planning, and provide updates on past and current events.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to September 26, 2016.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
•
•
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, by mail to PPT Forms Officer, U.S. Department of State, CA/PPT/S/L/LA 44132 Mercure Cir, P.O. Box 1227, Sterling, VA 20166-1227, by phone at (202) 485-6373, or by email at
•
•
•
•
•
•
•
•
•
•
•
•
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The information collected on the DS-82 is used to facilitate the issuance of passports to U.S. citizens and nationals. The primary purpose of soliciting the information is to establish citizenship, identity, and entitlement to the issuance of the U.S. passport or related service, and to properly administer and enforce the laws pertaining to the issuance thereof.
DS-82 solicits data necessary for Passport Services to issue a United States passport (book and/or card format) pursuant to authorities granted to the Secretary of State by 22 U.S.C. 211a
The issuance of U.S. passports requires the determination of identity, nationality, and entitlement, with reference to the provisions of Title III of the Immigration and Nationality Act (INA) (8 U.S.C. 1401-1504), the 14th Amendment to the Constitution of the United States, other applicable treaties and laws, and implementing regulations at 22 CFR parts 50 and 51. The specific regulations pertaining to the Application for a U.S. Passport by Mail are at 22 CFR 51.20 through 51.21.
Passport Services collects information from U.S. citizens and non-citizen nationals who complete and submit the U.S. Passport Renewal Application. Passport applicants can either download the DS-82 from the internet or obtain one from an Acceptance Facility/Passport Agency. The form must be completed, signed, and submitted along with the applicant's previous U.S. passport.
U.S. citizens overseas may download the DS-82 from the Internet or obtain one from the nearest U.S. embassy or consulate, along with the procedures to be followed when applying overseas.
The Privacy Act statement has been amended to clarify that an applicant's failure to provide his or her Social Security number may result in the denial of an application, consistent with 22 U.S.C. 2714a(f) which authorizes the Department to deny U.S. passport applications when the applicant failed to include his or her Social Security number. These requirements and the underlying legal authorities are further described on page 3 of the instruction titled “Federal Tax Law” which has also been amended to include a reference to 22 U.S.C. 2714a(f).
Additionally, the proposed renewal of form DS-82 includes updated instruction regarding the eyeglass policy change, which prohibits applicants from wearing eyeglasses in passport photographs, unless the applicant presents a signed statement from a doctor demonstrating that the glasses must be worn due to medical reasons. The form also states that passport photos may include hats or head coverings only when they are worn continuously as part of recognized, traditional religious attire, or when the hat or head covering is worn for medical purposes as stated by a doctor in a signed statement.
Based upon a review of the Administrative Record assembled pursuant to Section 219(a)(4)(C) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that the circumstances that were the basis for the designation of the aforementioned organization as a Foreign Terrorist Organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation.
Therefore, I hereby determine that the designation of the aforementioned organization as a Foreign Terrorist Organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained.
This determination shall be published in the
CSX Transportation, Inc. (CSXT) and The Three Rivers Railway Company (TRRC) (collectively, Applicants) have jointly filed a verified notice of exemption under 49 CFR 1180.2(d)(3) for a corporate family transaction. CSXT is a Class I rail carrier that directly controls and operates TRRC.
Under the proposed transaction, TRRC will be merged with and into CSXT with CSXT being the surviving corporation. Applicants state that the purpose of the transaction is to simplify the corporate structure and reduce overhead costs and duplication, by eliminating one corporation while retaining the same assets to serve customers. According to Applicants, CSXT will also obtain certain other savings as a result of this transaction. Applicants state that the proposed merger of TRRC into CSXT does not contain any interchange commitments.
Unless stayed, the exemption will be effective on September 11, 2016 (30 days after the verified notice was filed). Applicants state that CSXT intends to merge TRRC into CSXT on or after that date.
This is a transaction within a corporate family of the type specifically
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. As a condition to the use of this exemption, any employees adversely affected by this transaction will be protected by the conditions set forth in
If the notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the exemption. Petitions for stay must be filed no later than September 2, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36056, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Louis E. Gitomer, Law Offices of Louis E. Gitomer, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice of public meeting.
This notice announces the bi-annual meeting of the Federal Aviation Administration (FAA) Aeronautical Charting Forum (ACF) to discuss informational content and design of aeronautical charts and related products, as well as instrument flight procedures development policy and design criteria.
The ACF is separated into two distinct groups. The Instrument Procedures Group (IPG) will meet October 25, 2016 from 8:30 a.m. to 5:00 p.m. The Charting Group (CG) will meet October 26 and 27, 2016 from 8:30 a.m. to 5:00 p.m.
The meeting will be hosted by Pragmatics, Inc. Company at 1761 Business Center Drive, Reston, VA 20190.
For information relating to the Instrument Procedures Group, contact Thomas E. Schneider, FAA, Flight Procedures Standards Branch, AFS-420, 6500 South MacArthur Blvd., P.O. Box 25082, Oklahoma City, OK 73125; telephone: (405) 954-5852.
For information relating to the Charting Group, contact Valerie S. Watson, FAA, Aeronautical Information Services, Governance & Standards, AJV-553, 1305 East-West Highway, SSMC4, Station 3409, Silver Spring, MD 20910; telephone: (301) 427-5155.
Pursuant to § 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. II), notice is hereby given of a meeting of the FAA Aeronautical Charting Forum to be held from October 25 through October 27, 2016, from 8:30 a.m. to 5:00 p.m. at Pragmatics, Inc. Company, at their offices located at 1761 Business Center Drive, Reston, VA 20190.
The Instrument Procedures Group agenda will include briefings and discussions on recommendations regarding pilot procedures for instrument flight, as well as criteria, design, and developmental policy for instrument approach and departure procedures.
The Charting Group agenda will include briefings and discussions on recommendations regarding aeronautical charting specifications, flight information products, and new aeronautical charting and air traffic control initiatives. Attendance is open to the interested public, but will be limited to the space available.
Please note the following special security requirements for access to the Pragmatics, Inc. Corporation Headquarters. A picture I.D. is required of all U.S. citizens. All foreign national participants are required to have a passport. Additionally, not later than September 30, 2016, foreign national attendees must provide their name, country of citizenship, company/organization representing, and country of the company/organization. Send the information to: Steve VanCamp, Pragmatics, Inc., FAA, Aviation Safety—Flight Standards Service, AFS-420, 6500 South MacArthur Blvd., P.O. Box 25082, Oklahoma City, OK 73125 or via Email (preferred) to:
The public must make arrangements by October 6, 2015, to present oral statements at the meeting. The public may present written statements and/or new agenda items to the committee by providing a copy to the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of Aviation Rulemaking Advisory Committee (ARAC) meeting.
The FAA is issuing this notice to advise the public of a meeting of the ARAC.
The meeting will be held on September 15, 2016, starting at 1:00 p.m. Eastern Daylight Savings Time. Arrange oral presentations by September 08, 2016.
The meeting will take place at the Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, 10th floor, MacCracken Conference Room.
Nikeita Johnson, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, telephone (202) 267-4977; fax (202) 267-5075; email
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), we are giving notice of a meeting of the ARAC taking place on September 15, 2016, at the Federal Aviation
The Agenda includes:
Attendance is open to the interested public but limited to the space available. Please confirm your attendance with the person listed in the
For persons participating by telephone, please contact the person listed in the
The public must arrange by September 08, 2016 to present oral statements at the meeting. The public may present written statements to the Aviation Rulemaking Advisory Committee by providing 25 copies to the Designated Federal Officer, or by bringing the copies to the meeting.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed under the heading
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA announces its determination that the noise exposure maps submitted by the Akron-Canton Airport Authority for Akron-Canton Airport under the provisions of 49 U.S.C. 47501 et. Seq. (formerly the Aviation Safety and Noise Abatement Act, hereinafter referred to as “the Act”) and 14 CFR part 150 (hereinafter referred to as “Part 150”) are in compliance with applicable requirements. The FAA also announces that it is reviewing a proposed noise compatibility program that was submitted for Akron-Canton Airport under Part 150 in conjunction with the noise exposure map, and that this program will be approved or disapproved on or before January 18, 2017.
This notice is effective July 22, 2016, and is applicable July 22, 2016. The public comment period ends October 24, 2016.
Ms. Katherine Delaney, Community Planner, DET ADO 604, Federal Aviation Administration, Detroit Airports District Office, 11677 Wayne Road, Suite 107, Romulus, MI 48174. Telephone number: 734-229-2900. Comments on the proposed noise compatibility program should also be submitted to the above office.
This notice announces that the FAA finds that the noise exposure maps submitted for Akron-Canton Airport are in compliance with applicable requirements of Part 150, effective July 22, 2016. Further, FAA is reviewing a proposed noise compatibility program for the airport which will be approved or disapproved on or before January 18, 2017. This notice also announces the availability of this program for public review and comment.
Under 49 U.S.C., section 47503 (the Aviation Safety and Noise Abatement Act, hereinafter referred to as “the Act”), an airport operator may submit to the FAA noise exposure maps which meet applicable regulations and which depict non-compatible land uses as of the date of submission of such maps, a description of projected aircraft operations, and the ways in which such operations will affect such maps. The Act requires such maps to be developed in consultation with interested and affected parties in the local community, government agencies, and persons using the airport.
An airport operator who has submitted noise exposure maps that are found by FAA to be in compliance with the requirements of Part 150, promulgated pursuant to the Act, may submit a noise compatibility program for FAA approval which sets forth the measures the operator has taken or proposes to take to reduce existing non-compatible uses and prevent the introduction of additional non-compatible uses.
Akron-Canton Airport Authority submitted to the FAA on September 28, 2015 noise exposure maps, descriptions and other documentation that were produced during noise compatibility planning study conducted from 2012 through 2014. It was requested that the FAA review this material as the noise exposure maps, as described in section 47503 of the Act, and that the noise mitigation measures, to be implemented jointly by the airport and surrounding communities, be approved as a noise compatibility program under section 47504 of the Act.
The FAA has completed its review of the noise exposure maps and related descriptions submitted by the Akron-Canton Airport Authority. The specific documentation determined to constitute the noise exposure maps includes: Figure 36, Figure 37, and Chapter 5 of the Part 150 study document. The FAA has determined that these maps for Akron-Canton Airport are in compliance with applicable requirements. FAA's determination on an airport operator's noise exposure maps is limited to a finding that the maps were developed in accordance with the procedures contained in Appendix D of FAR Part 150. Such determination does not constitute approval of the applicant's data, information or plans, or constitute a commitment to approve a noise
If questions arise concerning the precise relationship of specific properties to noise exposure contours depicted on a noise exposure map submitted under section 47503 of the Act, it should be noted that the FAA is not involved in any way in determining the relative locations of specific properties with regard to the depicted noise contours, or in interpreting the noise exposure maps to resolve questions concerning, for example, which properties should be covered by the provisions of section 47506 of the Act. These functions are inseparable from the ultimate land use control and planning responsibilities of local government. These local responsibilities are not changed in any way under Part 150 or through FAA's review of noise exposure maps. Therefore, the responsibility for the detailed overlaying of noise exposure contours onto the map depicting properties on the surface rests exclusively with the airport operator that submitted those maps, or with those public agencies and planning agencies with which consultation is required under section 47503 of the Act. The FAA has relied on the certification by the airport operator, under section 150.21 of FAR Part 150, that the statutorily required consultation has been accomplished. Preliminary review of the submitted noise compatibility program for Akron-Canton Airport indicates that it conforms to the requirements for the submittal of noise compatibility programs, but that further review will be necessary prior to approval or disapproval of the program. The formal review period, limited by law to a maximum of 180 days, will be completed on or before January 18, 2017. A public hearing was held on September 17, 2014 at the Akron-Canton Airport Terminal Building, 2nd Floor.
The FAA's detailed evaluation will be conducted under the provisions of 14 CFR part 150, section 150.33. The primary considerations in the evaluation process are whether the proposed measures may reduce the level of aviation safety, create an undue burden on interstate or foreign commerce, or be reasonably consistent with obtaining the goal of reducing existing non-compatible land uses and preventing the introduction of additional non-compatible land uses. Interested persons are invited to comment on the proposed program with specific reference to these factors. All comments, other than those properly addressed to local land use authorities; will be considered by the FAA to the extent practicable. Copies of the noise exposure maps, the FAA's evaluation of the maps, and the proposed noise compatibility program are available for examination at the following locations:
Questions may be directed to the individual named above under the heading,
Issued in Romulus, MI.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA and other Federal Agencies.
This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, I-55 from I-355 to I-90/94 in Will, DuPage and Cook Counties, Illinois. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before January 23, 2017. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Ms. Catherine A. Batey, Division Administrator, Federal Highway Administration, 3250 Executive Park Drive, Springfield, Illinois 62703, Phone: (217) 492-4640, Email address:
Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the following highway project in the State of Illinois: Convert the existing median of I-55 to provide one additional managed lane in each direction from I-355 in Will County to I-90/94 in Cook County, a total project length of approximately 25 miles. The managed lane is proposed as tolled lane. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Environmental Assessment (EA) for the project approved on April 27, 2016, the Finding of No Significant Impact (FONSI) issued on July 20, 2016; and in other documents in the FHWA administrative record. The EA, FONSI, and other documents in the FHWA administrative record file are available by contacting the FHWA or the Illinois Department of Transportation at the addresses provided above. The EA and FONSI and all other supporting documentation can be viewed and downloaded from the project Web site at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1.
2.
3.
4.
5.
6.
7.
8.
23 U.S.C. 139(l)(1).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that La Rosa Del Monte Express, Inc. (LRDM) has requested an exemption for its specialized “Small Residential Shipments” (SRS) from the consumer protection regulations for the transportation of household goods (HHG) in interstate commerce. LRDM requested that its SRS consisting of fewer than 10 items weighing less than 1,000 pounds total be exempted from the HHG regulations. LRDM claims that the need for the exemption is made clear by the statutory Limited Service Exclusion (LSE) for household goods motor carriers. LRDM believes that an SRS exemption is consistent with the purpose of the LSE.
Comments must be received on or before September 26, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2016-0268 using any of the following methods:
•
•
•
•
Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
For information concerning this notice, please contact Mr. Tom Yager, Chief, FMCSA Driver and Carrier Operations Division; Telephone: (614) 942-6477; Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2016-0268), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. 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 the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
Before operating for hire in interstate commerce, a motor carrier must obtain commercial registration under 49 U.S.C. 13902 and comply with the requirements of § 13902(a)(1). To provide transportation of HHG, a motor carrier must also comply with the requirements of § 13902(a)(2).
However, under 49 U.S.C. 13541(a), the Secretary of Transportation “shall exempt a person, class of persons, or a transaction or service from the application, in whole or in part, of a provision of this part [part B of subtitle IV of title 49, United States Code,
Nonetheless, “The exemption authority under this section may not be used to relieve a person from the application of, and compliance with, any law, rule, regulation, standard, or order pertaining to cargo loss and damages, insurance, [or] safety fitness . . .” [49 U.S.C. 13541(e)(1)].
The Secretary's authority to enforce 49 U.S.C. 13902 and 13541 have been delegated to FMCSA by 49 CFR 1.87(a)(5) and 1.87(a)(3), respectively. This notice seeks to clarify the
A motor carrier engaged in the interstate transportation of household goods must follow the regulations in 49 CFR part 375. The term “household goods motor carrier” is defined in section 375.103 as a motor carrier that, in the ordinary course of business of providing transportation of household goods, offers some or all of the following additional services: binding and nonbinding estimates; inventorying; protective packing and unpacking of items at personal residences; and loading and unloading at personal residences. However, the term HHG motor carrier excludes any motor carrier providing transportation of HHGs in containers or trailers that are entirely loaded and unloaded by an individual (other than an employee or agent of the motor carrier). This is the LSE provision.
LRDM (US DOT # 25982) is a minority-owned motor carrier with its principal place of business located in Bronx, New York. According to LRDM, for almost 50 years this company has been a leader in providing interstate household goods moving and storage services for primarily minority communities from and between New York, Florida, Connecticut, Illinois, Massachusetts, Pennsylvania, Puerto Rico, and the Dominican Republic.
According to LRDM, in the past several years there has been a need in communities served by LRDM for an efficient, low-cost, no-frills shipment service for SRS consisting primarily of fewer than 10 items weighing a total of no more than 1,000 pounds. Such items include bicycles, refrigerators, washer/dryers and other similar goods. In response to this need, LRDM offers an SRS service that it says combines the efficiency and economy of freight with the safety and professional service of a traditional HHG move.
LRDM contends that the HHG regulations hinder its efforts to meet the needs of the communities it serves. The regulations do not exempt SRS under the Limited Service Exclusion
LRDM seeks the ability to offer its customers an option to ship a limited number of small items at a flat rate that its customers can afford, free from extra costs and burdens associated with HHG regulations. LRDM is requesting that its specialized service be exempt from the HHG requirements under 49 CFR part 375. LRDM asserts that its SRS warrant an exemption from the application of part 375 because such an exemption is in the public interest. It claims that the exemption would further support DOT's transportation policy goals by promoting safe, economical, and efficient transportation by allowing a variety of quality and price options to the public.
To LRDM's knowledge no other carrier/mover, ground, freight, or otherwise, offers a similar service. These shipments are unique and in a class of their own; are too large and/or heavy for ground transportation; and too small to be economical or affordable to be shipped as freight or through a portable storage container covered under the LSE.
LRDM explains that its customers cannot turn to traditional ground carriers because the SRS shipments far exceed those services' 150 pound maximum weight for any one parcel. Nor can its customers turn to less-than-truckload (LTL) freight services which are prohibitively expensive due to mileage and other freight charges. LTL carriers also require sophisticated packing with items securely fastened to a pallet or skid.
LRDM advises that customers cannot turn to the portable storage container service options. According to LRDM, those services, although excluded from HHG moving regulations under the LSE, are not made for SRS and are prohibitively expensive. For example, the cost of shipping an average sized refrigerator from New York to Miami would cost between $600-$1,000 by traditional freight service (not including the cost and time to properly pack and secure the refrigerator on a pallet) and over $1,800 by a portable storage container service. However, in comparison, if LRDM was not required to burden its customers with the “excessive costs” and “unreasonable forms” associated with HHG regulations intended for much larger moves, LRDM would be able to offer shipment of the same merchandise for a flat fee in the range of $125-$500.
LRDM contends that the intent of the LSE was to give consumers “access to low-cost transportation services as an alternative to traditional, full-service, moving companies.” The intent of its exemption application is exactly the same; to give consumers access to an efficient and affordable shipping option for SRS.
LRDM states that the HHG regulations were not meant to regulate SRS. LRDM believes the HHG regulations, as they are currently applied to smaller shipments, are unnecessary and unreasonable. Rather than being a means of protecting the public from carrier abuses, HHG regulations burden LRDM's customers with excessive costs and unreasonably lengthy and confusing forms that undermine DOT's transportation policy goals.
LRDM advises that the forms require LRDM to spend time and resources assisting its customers traverse the maze of paperwork required by the HHG regulations no matter how small the shipment. These resources could be used to make SRS shipments more affordable and more efficient.
A copy of LRDM's application for the exemption is available for review in the docket for this notice.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice.
The FMCSA amends its pre-trip safety guidance recommending that the motorcoach industry encourage passengers to use lap/shoulder seat belts. This amended guidance is provided in response to National Transportation Safety Board (NTSB) recommendations and the National Highway Transportation Safety Administration's (NHTSA) Final Rule published on November 25, 2013 [78 FR
Mr. Gregory Nahmens, Commercial Passenger Carrier Safety Division (MC-ECP),
On February 26, 1999, the NTSB issued recommendations H-99-7 and H-99-8 to the Secretary of Transportation concerning safety briefing materials for motorcoach operators, and pre-trip safety information for passengers. The recommendations provided as follows:
H-99-7 Provide guidance on the minimum information to be included in safety briefing materials for motorcoach operators.
H-99-8 Require motorcoach operators to provide passengers with pre-trip safety information.
The recommendations resulted from NTSB's special investigation report, “Selective Motorcoach Issues,” which included two motorcoach crashes from the late 1990s where passengers felt a general sense of panic and did not know what to do on a motorcoach during the emergency. The NTSB concluded that emergency instructions can be crucial to a safe and expedient evacuation in the event of a motorcoach crash or emergency.
In the spring of 2003, FMCSA formed a stakeholder working group to develop guidance in response to the NTSB recommendations. The working group met on September 16, 2003. Because of the operational variances in the industry, making it inappropriate to apply one basic regulatory approach universally, FMCSA decided to allow motorcoach companies the flexibility to conduct pre-trip safety briefings that are tailored to each individual company's overall safety and operational procedures. FMCSA concluded, based upon the diverse operational types of motorcoach carriers, that it would be best to initially encourage the motorcoach industry to take voluntary action to improve pre-trip safety awareness for passengers.
A notice and request for comments was published in the
On September 13, 2007, the FMCSA published a final notice in the
To assist the motorcoach industry with implementation of passenger safety-awareness programs, FMCSA developed materials including two sample pamphlets, a pre-trip informational poster, and an audio pre-trip safety briefing which was translated into six foreign languages and recorded. These informational tools were mailed to all registered motorcoach companies, distributed at industry seminars and conferences, and placed on FMCSA's Web site to encourage free downloading, adoption, and use.
More recently, NHTSA published a Final Rule on November 25, 2013, [78 FR 70416] titled, “Federal Motor Vehicle Safety Standards; Occupant Crash Protection,” which amended Federal Motor Vehicle Safety Standards (FMVSS) numbers 208 and 210 to require lap/shoulder seat belts for each passenger seating position in all new over-the-road buses, and in new buses other than over-the-road buses with a gross vehicle weight rating greater than 26,000 pounds, with certain exclusions. Prior to this, seat belts were only required to be installed for the driver.
On August 4, 2015, in response to a multiple-fatality crash in Orland, California, the previous year involving a motorcoach and subsequent fire, NTSB issued new recommendations to FMCSA concerning safety briefing materials for motorcoach operators, and pre-trip safety information for passengers. The recommendations are provided below.
H-15-14 Require all passenger motor carrier operators to (1) provide passengers with pre-trip safety information that includes, at a minimum, a demonstration of the location of all exits, explains how to operate the exits in an emergency, and emphasizes the importance of wearing seat belts, if available; and (2) also place printed instructions in readily accessible locations for each passenger to help reinforce exit operation and seat belt usage.
H-15-15 Update your Web site guidance to include information on the mandated three-point restraints effective November 2016 for all new over-the-road buses and for other than over-the-road buses with a gross vehicle weight rating greater than 11,793 kilograms (26,000 pounds).
With this notice, FMCSA is adding the use of seat belts to the previously issued pre-trip safety information for passenger carriers. In an effort to assist motorcoach companies with implementing this amended safety-awareness program for passengers, FMCSA has developed sample safety information, which it makes available to motorcoach carriers and passengers through presentations, during industry and public safety events and through the FMCSA public Web site at
FMCSA announces the following revisions to the Basic Plan; they are listed in order of importance.
1.
2.
3.
4.
5.
6.
7.
The following presentation methods are examples of how to present safety information to motorcoach passengers. The list below should not be construed to restrict combinations of the following methods or additional presentation methods.
1.
2.
a. The driver requests the passengers to review informational pamphlets/printed materials located in the seat back pocket.
b. The driver provides an oral presentation (similar to the presentations by airline flight attendants prior to take-off) with or without informational pamphlets/printed materials as visual aids.
c. An automated presentation over the motorcoach audio system.
d. An automated presentation over the motorcoach video system.
Demand-responsive motorcoach operations, such as charters and tour services, should present the safety information to motorcoach passengers after boarding and prior to movement of the motorcoach.
Fixed route motorcoach service operations should present the safety information at all major stops or terminals, after any new passengers have boarded and prior to movement of the motorcoach.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of intent (NOI) to prepare an environmental impact statement (EIS).
FRA announces its intent to prepare an EIS for the Long Bridge Project jointly with the District Department of Transportation (DDOT). The Long Bridge Project (Proposed Action) consists of potential improvements to bridge and related railroad infrastructure located between the Virginia Railway Express (VRE) Crystal City Station in Arlington, Virginia and Control Point (CP) Virginia in Washington, DC. FRA and DDOT will develop the EIS in compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
Persons interested in providing written comments on the scope of the EIS (scoping comments) must do so by September 26, 2016. Please submit written comments via the methods specified below.
A public scoping meeting is scheduled on Wednesday, September 14, 2016, between 3:00 p.m. and 6:00 p.m. in Washington, DC. The meeting will be held at the L'Enfant Plaza Club Room, Promenade Level, 470 L'Enfant Plaza SW., Washington, DC 20024. Oral and written comments will be accepted at the September 14, 2016 meeting. The meeting facilities will be accessible to persons with disabilities. If special translation, signing services, or other special accommodations are needed, please email:
The public and other interested parties are encouraged to submit written scoping comments by mail, the Internet, email, or in person at the scoping meeting. Scoping comments can be mailed to the address identified in the “For Further Information Contact” paragraph below. Internet and email correspondence may be submitted through the Long Bridge Project Web site (
Amanda Murphy, Environmental Protection Specialist, Office of Railroad Policy and Development, Federal Railroad Administration, 1200 New Jersey Avenue SE., (Mail Stop-20), Washington, DC 20590; telephone: (202) 493-0624.
FRA is an operating administration of DOT and is responsible for overseeing the safety of railroad operations, including the safety of any proposed rail ground transportation system. FRA is also authorized to provide, subject to appropriations, funding for intercity passenger and rail capital investments and to provide loans and other financial support for railroad investment. In 2016, FRA awarded DDOT a grant to prepare an EIS for the Proposed Action, and FRA may provide funding or financing for the rehabilitation or replacement of the Long Bridge in the future.
FRA is the lead Federal agency under NEPA; DDOT, as project sponsor, is a joint lead agency. FRA and DDOT will prepare the EIS consistent with NEPA, the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA in 40 CFR parts 1500-1508; FRA's Procedures for Considering Environmental Impacts in 64 FR 28545, dated May 26, 1999; and 23 U.S.C. 139. After release and circulation of a Draft EIS for public comment, FRA will issue a single document consisting of the Final EIS and a Record of Decision under the Fixing America's Surface Transportation Act (Pub. L. 114-94, section 1304(n)(2)) unless it determines that statutory criteria or practicability considerations preclude issuing a combined document.
The EIS will also document compliance with other applicable Federal, state, and local environmental laws and regulations, including: section 106 of the National Historic Preservation Act; the Clean Water Act; section 4(f) of the Department of Transportation Act of 1966; the Endangered Species Act; Executive Order 11988 and USDOT Order 5650.2 on Floodplain Management; Executive Order 11990 on Protection of Wetlands; the Magnuson-Stevens Act related to Essential Fish Habitat; the Coastal Zone Management Act; and Executive Order 12898 on Environmental Justice.
The current Long Bridge, dating from 1904, is owned and maintained by CSX Transportation (CSXT). It is the only freight railroad crossing over the Potomac River between the District of Columbia and the Commonwealth of Virginia. The two-track bridge serves CSXT freight trains, National Railroad Passenger Corporation (Amtrak) passenger rail trains, and VRE commuter rail trains. Norfolk-Southern (NS) has trackage rights on the bridge and connecting CSXT tracks but does not currently exercise those rights.
In 2011, DDOT received a High Speed Intercity Passenger Rail grant from FRA to complete a two-phase feasibility study of the rehabilitation or replacement of the Long Bridge. Long Bridge Study Phase I included a preliminary operations plan; visual inspection of the corridor; initial evaluation of existing and future capacity needs; and preliminary development of conceptual alternatives. Phase II of the Long Bridge Study developed a draft Purpose and Need Statement; developed a service plan based on future demand in the corridor; further refined conceptual alternatives; and defined evaluation criteria to screen and identify alternatives which will be carried forward for analysis. In 2016, DDOT received a Transportation Investment Generating Economic Recovery grant from FRA for the preparation of the Long Bridge EIS (Phase III).
The Long Bridge is located within the Washington Monumental Core. The EIS Study Area extends approximately 3.2 miles from the VRE Crystal City Station in Arlington, Virginia to CP Virginia located near Third Street SW., in Washington, DC. The EIS Study Area includes Federal park land managed by the National Park Service; historic and cultural properties; the Potomac River; offices, hotels, and apartment buildings; transportation facilities (VRE Crystal City Station, VRE L'Enfant Station, Long Bridge, eleven other railroad bridges, and four roadway bridges); and numerous pedestrian and bicycle trails.
The purpose of the Proposed Action is to address reliability and long-term railroad capacity issues for the Long Bridge corridor. The Proposed Action is needed to identify alternatives that would increase capacity to meet projected demand for passenger and freight rail services; improve operational flexibility and resiliency; and provide redundancy for this critical link in the local, regional, and national railroad network.
The need to make improvements to the Long Bridge corridor is noted in various studies. An Amtrak study in 1999 (
Current and projected rail demand supports the need for capacity improvements to the Long Bridge corridor. Intercity passenger and commuter services operate at or close to capacity within the corridor during the morning peak hour, with eight passenger train movements scheduled in 60 minutes. Over the course of a full weekday, Amtrak and VRE currently operate 24 and 32 trains across the Long Bridge, respectively. CSXT freight trains operate approximately 18 through-freight trains each day on the same tracks used by the two passenger train operators.
Future rail demand during peak periods is forecasted to exceed the current capacity for Long Bridge. According to the service plan developed in Phase II of the Long Bridge Project, over the course of the full day, the number of trains crossing the bridge in 2040 is expected to increase to 44 trains for Amtrak, 92 for VRE, eight for the Maryland Area Regional Commuter (MARC); 42 for CSXT, and six for NS. The projected growth represents an average increase of over 100 percent in traffic on the bridge compared to 2015. The existing track infrastructure, which is limited by the two-track design of the Long Bridge, cannot support the increased demand.
The removal of additional rail capacity bottlenecks east and south of the Long Bridge, combined with population and employment growth in the Washington Metropolitan Area, increases the need for greater railroad capacity within the wider corridor. Attempting to serve future intercity passenger and freight rail demand solely on the current Long Bridge would not provide needed resiliency or redundancy within the Virginia to DC rail network. Limited capacity, coupled with shared-use infrastructure within the corridor, limits the flexibility of commuter, intercity passenger, and freight service to operate efficiently. These conditions create a systemic bottleneck that results in operational conflicts and delays, decreasing reliability and on-time performance of train operations. Currently, there are no reasonable detours to route rail traffic around the Long Bridge for maintenance or emergencies without extensive service delays.
This bottleneck limits efficient network connectivity for the rail operators within the Long Bridge corridor, including CSXT, VRE, Amtrak, and potentially MARC, and the overall transportation network. It also affects rail operations well beyond the limits of the Long Bridge corridor given the extensive reach of freight, commuter, and intercity passenger services along the eastern U.S. and beyond.
The EIS will consider a range of reasonable alternatives that FRA and DDOT will develop based on the purpose and need for the Proposed Action, information obtained through the scoping process, and previous reports. The 2015 Long Bridge Study Phase I identified concepts that are included in the initial range of alternatives to be considered in the EIS. FRA and DDOT will evaluate and screen the Phase I concepts and additional concepts during the NEPA process for elimination or further refinement. Alternatives will include the No-Build Alternative and Build Alternatives, including potential rehabilitation and/or replacement of the existing bridge.
The EIS will analyze the potential direct, indirect, and cumulative effects of the alternatives on the social, economic, and environmental resources in the Study Area. Environmental resources include, but are not limited to:
• Transportation;
• Social and economic conditions;
• Property acquisition;
• Parks and recreational resources;
• Visual and aesthetic resources;
• Historic and archaeological resources;
• Air quality;
• Aquatic navigation;
• Greenhouse gas emissions and resilience;
• Noise and vibration;
• Ecology (including wetlands, water and sediment quality, floodplains, and biological resources);
• Threatened and endangered species;
• Contaminated materials; and
• Environmental Justice.
This analysis will include identification of study areas appropriate for each resource; documentation of the affected environment; and identification of measures to avoid and/or mitigate significant adverse impacts.
This Notice initiates the scoping process under NEPA, which helps guide the development of the Draft EIS. The FRA and DDOT invite comments from the public and all interested parties regarding the scope of the EIS to ensure that relevant issues, applicable planning efforts, constraints, and reasonable alternatives are addressed early in the development of the EIS. FRA and DDOT will also directly contact appropriate Federal, state, and local agencies as well as and private organizations that have previously expressed or that are known to have an interest in the Proposed Action.
FRA and DDOT will coordinate with participating agencies during development of the Draft EIS under 23 U.S.C. 139. FRA will invite all agencies and Native American Tribes that may have an interest in the Proposed Action to become participating agencies for the EIS. If an agency or Native American Tribe is not invited and would like to participate, please contact FRA (“For Further Information Contact” section). The lead agencies will develop a Coordination Plan summarizing how the public and other agencies will be engaged in the process. The Coordination Plan will be posted to the Project Web site (
At various milestones during the development of the Long Bridge EIS, FRA and DDOT will provide additional opportunities for public and interested party consultation, such as public meetings, open houses, newsletters, and requests for comments/review of the EIS. Dates, times, and locations for public meetings and other opportunities for public participation will be announced through the Long Bridge Project Web site (
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice withdrawal.
On August 23, 2016, NHTSA inadvertently published, at 81 FR 57646, a notice seeking comments on a new uniform guideline for State highway safety programs, issued pursuant to section 402 of title 23 of the United States Code requires the Secretary of Transportation to promulgate uniform guidelines for State highway safety programs. NHTSA is withdrawing the August 23, 2016 notice.
44 U.S.C. Section 3506(c)(2)(A).
Office of the Secretary, Department of Transportation.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1994, (44 U.S.C. 3501
Comments on this notice must be received by September 26, 2016.
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW., Washington, DC 20503. Comments may also be sent via email to OMB at the following address:
Yvette Rivera, Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590; 202-366-4648;
• 150 pieces of correspondence on one-time accessibility-related incidents
• 120 email messages
• 400 telephone calls
• 172 formal accessibility-related complaints.
Internal Revenue Service (IRS), 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 take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1024, Application for Recognition of Exemption Under Section 501(a).
Written comments should be received on or before October 25, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), 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 take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1024, Application for Recognition of Exemption Under Section 501(a).
Written comments should be received on or before October 25, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Tax Exempt and Government
Entities Division, Treasury.
Notice and request for applicants or nominations.
The Internal Revenue Service (IRS) is requesting applications for membership to serve on the Advisory Committee on Tax Exempt and Government Entities (ACT). Applications will be accepted for the following vacancies that will occur in June 2017: One (1) Federal, State and Local Governments, one (1) Indian Tribal Governments and one (1) Employment tax knowledge and experience in one or more areas of employee plans, exempt organizations, Indian tribal governments, tax exempt bonds or federal, state and local governments. To ensure appropriate balance of membership, final selection of qualified candidates will be determined based on experience, qualifications and other expertise.
Applications or nominations must be received on or before Monday, September 26, 2016.
Send applications and nominations using FAX: (888) 269-7419. If you need help, please call (202) 317-8798.
Requests for additional information should be sent to
The Advisory Committee on Tax Exempt and Government Entities (ACT), governed by the Federal Advisory Committee Act, Public Law 92-463, is an organized public forum for discussion of relevant employee plans, exempt organizations, tax-exempt bonds, and federal, state, local and Indian tribal government issues between officials of the IRS and representatives of the above communities. The ACT enables the IRS to receive regular input with respect to the development and implementation of IRS policy concerning these communities. ACT members present the interested public's observations about current or proposed IRS policies, programs and procedures, as well as suggest improvements. The Secretary of the Treasury appoints ACT members, who serve three-year terms. ACT members will not be paid for their time or services. ACT members will be reimbursed for travel-related expenses to attend working sessions and public meetings, in accordance with 5 U.S.C. 5703.
The Secretary of the Treasury invites those individuals, organizations and groups affiliated with employee plans, exempt organizations, tax-exempt bonds, and federal, state, local and Indian tribal governments to nominate individuals for membership on the ACT. Nominations should describe and document the proposed member's qualifications for ACT membership, including the nominee's past or current affiliations and dealings with the particular community or segment of the community that he or she would represent (such as employee plans). Nominations also should specify the vacancy for which the individual wishes to be considered. The Department of the Treasury seeks a diverse group of members representing a broad spectrum of persons experienced in employee plans, exempt organizations, tax-exempt bonds, and federal, state, local and Indian tribal governments. Nominees must go through a clearance process before selection by the Department of the Treasury. In accordance with Treasury Directive 21-03, the clearance process includes pre-appointment and annual tax checks, and an FBI criminal and subversive name check, fingerprint check and security clearance.
Internal Revenue Service (IRS), 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 take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning the collection of qualitative feedback on agency service delivery.
Written comments should be received on or before October 25, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
Requests for additional information or copies of the collection tools should be directed to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202)622-3634, or through the internet at
Currently, the IRS is seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Notice.
The Department of Veterans Affairs (VA), Office of Rural Health, is seeking nominations of qualified candidates to be considered for appointment to the Veterans Rural Health Advisory Committee (VRHAC). The Committee advises the Secretary on ways to improve and enhance access to VA healthcare services for enrolled Veterans residing in rural areas and the identification of barriers to providing services. The Committee makes recommendations to the Secretary regarding such activities. Nominations of qualified candidates are being sought to fill upcoming vacancies on the Committee.
Nominations for membership on the Committee must be received no later than 5:00 p.m. EST on December 15, 2016.
Nominations should be submitted to the VA Office of Rural Health by email at
VA Office of Rural Health, Department of Veterans Affairs, 810 Vermont Ave. NW., Mail Code 10P1R, Washington, DC 20420, or by telephone at (202) 632-8576. A list of the current membership can be viewed at
The Committee was established by direction of the Secretary of Veterans Affairs, and operates under the provisions of the Federal Advisory Committee Act, as amended, 5 U.S.C. 2. The Committee consists of 12 Members representing federal agencies appointed by the Secretary of VA and 4 appointed Ex Officio members. The Committee is tasked with examining ways to enhance health care services for Veterans in rural areas. The Committee works in collaboration with the VA Office of Rural Health (ORH) to discuss programs and policies that impact the provision of VA health care services to Veterans in rural areas. The Committee hosts a minimum of two Advisory meetings a year and provides recommendations to the VA Secretary.
The Department makes every effort to ensure that the membership of its Federal advisory committees is fairly balanced in terms of points of view represented and the committee's function. Every effort is made to ensure that a broad representation of geographic areas, males and females, racial and ethnic minority groups, and the disabled are given consideration for membership. Appointment to this Committee shall be made without discrimination because of a person's race, color, religion, sex (including gender identity, transgender status, sexual orientation, and pregnancy), national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
The Committee was established in accordance with 5 U.S.C. 2.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that a meeting of the Veterans' Advisory Committee on Rehabilitation (VACOR) will be held on Thursday, September 15, and Friday, September 16, 2016 in Room 4E400 at the Department of Veterans Affairs' Board of Veterans' Appeals Conference Room, 425 I Street NW., Washington, DC 20001. The meeting will begin at 8:00 a.m. (EST) each day and adjourn at 5:00 p.m. (EST) on September 15 and at 1:00 p.m. (EST) on September 16, 2016. The meeting will be partially closed to the public.
The purpose of the Committee is to provide advice to the Secretary on the rehabilitation needs of Veterans with disabilities and on the administration of VA's rehabilitation programs.
On September 15, 2016, the Committee will meet in closed session. The Committee will discuss nominees for the office of Vice-Chair of the Committee for the one-year term from September 2016 through September 2017. During the closed session, the Committee will also meet with the VA Office of General Counsel. These discussions will disclose information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. Closing the meeting is in compliance with 5 U.S.C. 552b(c)(6).
On September 16, 2016, the Committee will meet in open session from 8:00 a.m. (EST) to 1:00 p.m. (EST). During the meeting, Committee members will be provided updated briefings on various VA programs designed to enhance the rehabilitative potential of disabled Veterans. Members will also begin consideration of potential recommendations to be included in the Committee's next annual report.
Although no time will be allocated for receiving oral presentations from the public, members of the public may submit written statements for review by the Committee to Anthony Estelle, Designated Federal Officer, Veterans Benefits Administration (28), 810 Vermont Avenue NW., Washington, DC 20420, or via email at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Advisory Committee on Women Veterans (Committee) will conduct a site visit on September 19-23, 2016, in San Diego, CA. Sessions are open to the public, except when the Committee is conducting tours of VA facilities, participating in off-site events, and participating in workgroup sessions. Tours of VA facilities are closed, to protect Veterans' privacy and personal information, in accordance with 5 U.S.C. 552b(c)(6). The site visit will also include a town hall meeting for women Veterans and those who provide services to women Veterans.
The purpose of the Committee is to advise the Secretary of Veterans Affairs regarding the needs of women Veterans with respect to health care, rehabilitation, compensation, outreach, and other programs and activities administered by VA designed to meet such needs. The Committee makes recommendations to the Secretary regarding such programs and activities.
On Monday September 19, the Committee will convene an open session at the San Diego VA Medical Center, 3350 La Jolla Village Drive, San Diego, CA 92161, in Conference Room 1 (4E), from 8:30 a.m. to 4:00 p.m. The agenda will include overview briefings from the San Diego VA Medical Center leadership on the facilities, programs, demographics, women Veterans programs, the transition program, suicide prevention program, mental health, military sexual trauma, homeless Veteran program, caregiver support, telehealth, One VA, and Veterans Choice.
On Tuesday September 20, the Committee will convene closed sessions, as it tours the San Diego VA Medical Center, and the Mission Valley Clinic, 8810 Rio San Diego Drive, San Diego, CA 92108.
On Wednesday September 21, the Committee will convene a closed session, as it attends the Department of Veterans Affairs' National Veterans Summer Sports Clinic, hosted by the San Diego VA Medical Center. For information on the National Veterans Summer Sports Clinic, please visit
On Thursday September 22, the Committee will convene a closed session, as it tours the San Diego VA Regional Benefit Office, 8810 Rio San Diego Drive, San Diego, CA 92108; the Fort Rosecrans National Cemetery, Cabrillo Memorial Drive, San Diego, CA 92106; and the Miramar National Cemetery, 5795 Nobel Drive, San Diego, CA 92122.
In the morning of September 23, the Committee will convene an open session at the San Diego Marriot La Jolla, 4240 La Jolla Village Drive, La Jolla, CA 92037, with San Diego VA Medical Center leadership, followed by a town hall meeting with the women Veterans and other stakeholders. The town hall meeting will begin at 10 a.m. and end promptly at noon. In the afternoon of September 23, the Committee will reconvene a closed session, to discuss Committee business, participate in workgroup discussions, and other administrative matters.
With the exception of the town hall meeting, there will be no time for public comment during the meeting. Members of the public may submit written statements for the Committee's review to
(1) in subsection 2(a)(iv)(A), by inserting, after the word “disclose,” the following: “to the entity designated by a final rule amending the Federal Acquisition Regulation under subsection 4(a)”;
(2) in subsection 2(a)(iv)(B), by striking “the information submitted by the subcontractor pursuant to subparagraph (A) of this paragraph” and replacing in lieu thereof the following: “the advice provided by the entity designated by a final rule amending the Federal Acquisition Regulation under subsection 4(a), or the information submitted to that entity”;
(3) in subsection 2(a)(v), by striking “to the contractor” and inserting in lieu thereof the following: “to an entity designated by a final rule amending the Federal Acquisition Regulation under subsection 4(a)”; and
(4) in subsection 4(c)(i), by striking “and (ii)”.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Sierra Nevada yellow-legged frog (
This rule is effective September 26, 2016.
This final rule is available on the Internet at
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Jennifer Norris, Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento CA 95825; telephone 916-414-6700; facsimile 916-414-6612. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We listed the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog as endangered species, and the Yosemite toad as a threatened species, on April 29, 2014 (79 FR 24256). On April 25, 2013, we published in the
The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Here we are designating:
• Approximately 437,929 ha (1,082,147 ac) for the Sierra Nevada yellow-legged frog in Plumas, Lassen, Sierra, Nevada, Placer, El Dorado, Amador, Calaveras, Alpine, Mariposa, Mono, Madera, Tuolumne, Fresno, and Inyo Counties, California;
• Approximately 89,637 hectares (221,498 acres) for the northern DPS of the mountain yellow-legged frog in Fresno, Inyo and Tulare Counties, California; and
• Approximately 303,889 hectares (750,926 acres) for the Yosemite toad in Alpine, Tuolumne, Mono, Mariposa, Madera, Fresno, and Inyo Counties, California.
This rule is a final rule designating critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. This rule designates critical habitat necessary for the conservation of these listed species.
Please refer to the proposed listing rule for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad (78 FR 24472, April 25, 2013) for a detailed description of previous Federal actions concerning these species.
We requested written comments from the public on the proposed designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad during three comment periods. The first comment period associated with the publication of the proposed designation (78 FR 24516) opened on April 25, 2013, and closed on June 24, 2013. A second comment period opened on July 19, 2013, and closed on November 18, 2013 (78 FR 43122). We also requested comments on the proposed critical habitat designation and associated draft economic analysis (DEA) during a third comment period that opened on January 10, 2014, and closed on March 11, 2014 (79 FR 1805). We received requests for public hearings, and two were held in Sacramento, California, on January 30, 2014. We also held two public informational meetings, one in Bridgeport, California, on January 8, 2014, and the other in Fresno, California, on January 13, 2014. We also participated in several public forums, one sponsored by Congressman McClintock and two sponsored by Congressman LaMalfa. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and DEA during these comment periods.
During the first comment period, we received six comment letters directly addressing the proposed critical habitat designation. During the second comment period, we received 545 comment letters addressing the proposed critical habitat designation or DEA. During the third comment period, we received 221 comment letters addressing the proposed critical habitat designation or DEA. During the January 30, 2014, public hearings, 21 individuals or organizations made comments on the designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad.
All substantive information provided during the comment periods has either been incorporated directly into this final determination or is addressed below. Comments we received are either directly answered, or are sometimes grouped into general issues specifically relating to the proposed critical habitat designation for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad, and are addressed in the following summary and incorporated into the final rule as appropriate.
We received comments from three Federal agencies regarding the proposed critical habitat designations for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Comments we received are addressed below.
(1)
(2)
(3)
We have re-evaluated all the available occupancy data, and other than a portion of subunit 1A for the Sierra Nevada yellow-legged frog, we have not changed our designation as a result of the occupancy information for any subunits for Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, or Yosemite toad. The limited areas that do have extant populations, unknown to us at the time of drafting, are not currently essential for the overall conservation of the species because of their limited extent. However, through the development of a final conservation strategy and recovery plan, the potential for these areas to contribute to species recovery will be considered.
(4)
(5)
The USMC also requested exclusion of the Marine Corps Mountain Warfare Training under section 4(b)(2) of the Act because of impacts to national security. Critical habitat designation and subsequent consultation under the Act focuses upon potential effects to the primary constituent elements (PCEs). Based on the information contained within the draft INRMP and information from the Humboldt-Toiyabe National Forest (USFS) regarding training conducted in subunit 2H, we do not anticipate significant impact on USMC training activities and thus national security in this area. Therefore, the Secretary is not exercising her discretion to exclude the Marine Corps Mountain Warfare Training under section 4(b)(2) of the Act for purposes of national security within subunit 2H. We look forward to working with the USMC and USFS to coordinate future activities within critical habitat.
(6)
We do concur that frogs are very unlikely to be found in xeric upslope habitats (catchments up to ridgelines where NPS does request exclusions), some of which were included in the designation. The Sierra Nevada yellow-legged frog and northern DPS of the mountain yellow-legged frog, being amphibians, are quite likely sensitive to a wide range of aquatic contaminants, and the PCE of water quality is potentially influenced by upgradient activities. Further, in light of future threats associated with climate change, the PCE of water quantity to provide for the critical wetland areas is relevant.
We understand NPS's contention that NPS-managed catchments do not include many of the threat factors extant within other federally managed lands, and as such, recreational land uses predominant in the National Parks are unlikely to impact natural hydrology. However, the PCEs were written to take into consideration physical or biological features of habitat, regardless of jurisdiction or magnitude of operative
In these instances where PCEs are not affected by the action (
Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” We did not receive comments from the State of California pertaining to the Yosemite toad proposed critical habitat designation. Comments received from the California Department of Fish and Wildlife (CDFW) regarding the proposal to designate critical habitat for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are addressed below.
(7)
We concur with the CDFW that certain reservoirs with higher degrees of development (managed reservoirs that have high water-level fluctuations and are surrounded by developed infrastructure such as significant number of cabins and/or a marina) and high public-use pressure (paved road-accessible reservoirs) have lower restoration potential. We have evaluated such reservoirs for removal from critical habitat in light of our existing criteria. This is discussed in full detail below (see Criteria Used To Identify Critical Habitat, below).
(8)
(9)
(10)
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Where a landowner requests Federal agency funding or is required to obtain Federal agency authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
(11)
For all three species, we made an effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack the physical or biological features. The maps we prepared may not reflect the non-inclusion of such developed lands. Any such lands left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat.
Areas that have been partially developed, or undeveloped areas proximate to developed structures, may and often do have physical or biological features that can sustain the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, or the Yosemite toad during at least part of their life cycle, or may serve as habitat corridors to connect more suitable areas and allow dispersal, migration, and recolonization of historical habitat. These areas with the essential physical or biological features, or that may act as corridors, remain in the final critical habitat designation.
(12)
We considered a section 4(b)(2) exclusion for other relevant impacts (including recreational fishing) at a number of sites within the proposed critical habitat. However, in responding to public, agency, and peer review comments, and upon re-examination, we determined that these areas have very low restoration potential because of high public use, their developed state, and their distance from known frog occurrences. Using our revised criteria for identifying critical habitat, we found that many of these areas do not meet the criteria for inclusion in the designation, and, therefore, we have not included them in this final designation.
(13)
(14)
(15)
Other potential impacts, where data limitations prevent quantification, are described qualitatively in the DEA. For example, in assessing the potential incremental cost of the proposed rule on hydroelectric facilities, section 4.2.2 of the DEA considers the potential for additional time delays that may occur because of the need to complete the section 7 consultation process. Similarly for timber harvest activities on privately owned lands, section 4.2.5 of the DEA considers the potential for the designation of critical habitat to cause unintended changes in the behavior of individual landowners, other Federal agencies, State, or local permitting or regulatory agencies. Specifically, this section of the DEA recognizes potential costs that may arise from changes in the public's perception of the burden placed on privately owned land from the designation of critical habitat.
In accordance with 50 CFR 424.19(b), which states, “Impacts may be qualitatively or quantitatively described,” the Service considers both the qualitative and quantitative effects listed in the economic analysis when developing the critical habitat for these species.
(16)
(17)
As presented in chapter 4 of the DEA, impacts to the energy industry from the designation of critical habitat for the three Sierra amphibians is expected to be limited to additional administrative costs, and is not anticipated to result in any impacts to the supply, distribution, or use of energy. As shown in Exhibit 2-1 of the DEA, incremental costs incurred by third parties during the consultation process are approximately $875 per consultation. Based on the revenues of the energy companies reported in section A.1.2, the designation is unlikely to affect the cost of energy production or distribution.
(18)
In addition, we also considered the possibility that due to the large size of some critical habitat units, species occupancy may be uncertain for a
(19)
As to the availability of additional information on conservation measures from conferencing, due to the timing of the proposed rules to list and designate critical habitat for these three species, information on project modifications from conferencing was unavailable at the time the DEA was developed. Since the publication of the DEA, the Service released a programmatic biological opinion on the forest programs associated with nine National Forests in the Sierra Nevada of California for the amphibians. The biological opinion, released in December 2014, provides more detailed information on general conservation measures as well as program-specific conservation measures for the three Sierra amphibians. The full biological opinion is publicly available at:
(20)
(21)
(22)
(23)
Importantly, the three Sierra amphibians are thought to occupy all the areas proposed for designation. Thus, for activities occurring on private land, such as logging activities requiring a State-approved timber harvest plan, CEQA is likely to be triggered due to the presence of a listed species, regardless of whether critical habitat is present. Furthermore, the Sierra Nevada yellow-legged frog and the mountain yellow-legged frog are listed species under the California Endangered Species Act; thus, the presence of these species would already trigger CEQA absent the designation of critical habitat.
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
Moreover, the geographic overlap between amphibians (whose habitat is largely at higher elevations than most timber harvest activities) and managed forests is relatively minimal across the range of area we are designating as critical habitat. Exhibit 4-15 of the DEA identifies the critical habitat units where timber harvests are likely and, within each unit, the number of acres suitable for timber harvests. Specifically, these acres include: (1) Areas identified by USFS under Land Suitability Classes 1 and 2; (2) areas included in past timber harvest plans from 1997 to 2013; and (3) areas included in past non-industrial timber management plans from 1991 to 2013. Based on these criteria, the economic analysis identifies approximately 5,396 acres as suitable for timber harvest activities in seven critical habitat units.
(35)
Since the publication of the DEA, we released a programmatic biological opinion for forest programs in nine National Forests in the Sierra Nevada of California for the amphibians. The biological opinion provides information on conservation measures, including many derived from best management practices included in the 2004 Sierra Nevada Forest Plan Amendment. One such conservation measure suggests, “the use of prescribed fire or mechanical methods to achieve resource objectives to reduce flooding and erosion perturbations. This may be achieved by managing the frequency, intensity and extent of wildfire.” Thus, we acknowledge the importance of managing wildfires as it relates to species and habitat conservation. Other conservation measures related to maintaining water quality and soil stability are also included.
(36)
(37)
(38)
(39)
(40)
(41)
(42)
(43)
(44)
In the case of the ongoing aquatic biodiversity management planning (ABMP) process being conducted by CDFW, these plans remain incomplete, and the specific criteria applied during the decision process selecting protected native amphibian areas do not necessarily reflect the same ultimate conservation outcome that we are tasked to accomplish (
In the case of Wilderness Areas and NPS lands, these Federal lands remain as multiple-use resource areas, even though they offer a greater relative degree of protection when compared to National Forests without Wilderness status. Nonetheless, designation of critical habitat requires that Federal agencies consult with the Service to ensure their actions do not destroy or adversely modify critical habitat. While NPS in particular has an exemplary record in managing these species, even before listing, the designation of critical habitat and the consultation process will provide additional assurance that activities in these areas will not destroy or adversely modify the habitat of these species.
(45)
The inclusion of upland areas within critical habitat is to protect habitat areas required for normal metapopulation dispersal, habitat use, and recolonization of suitable habitat not currently containing the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, or Yosemite toad, and to protect the primary constituent elements of water quality and quantity (see our response to Comment (6), above). In addition, the Yosemite toad does utilize upland habitats extensively (see
(46)
This critical habitat designation is based on the identification of specific areas within the geographical area occupied by the species at the time of listing that contain the physical or biological features essential for the conservation of the species. We also use a set of criteria to identify the geographic boundaries of the designation. A critical habitat designation does not require definitive data regarding abundances; such data are pertinent to the overall determination of whether a species is considered an endangered or threatened species under the Act. Regardless, we are required to use the best scientific data available to inform our critical
(47)
(48)
(49)
(50)
(51)
(52)
(53)
(54)
(55)
With regard to increasing connectivity between the southern DPS of the mountain yellow-legged frog and the northern DPS of the mountain yellow-legged frog, it is unclear if restoring connectivity between the DPSs will be an appropriate recovery target, because natural interchange is impossible and these metapopulations are discrete and significant, comprising different genetic clades.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occur, and conservation biology principles. We received responses from three of the five peer reviewers about our proposed critical habitat designation.
We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
(56)
(57)
(58)
(59)
(60)
Based on comments we received following publication of the proposed critical habitat designation, we revised PCEs 1 and 2 for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog to better clarify the intent of the PCE language with respect to the presence of introduced fish within critical habitat. It was clear from public and agency input that readers misinterpreted what we meant regarding PCE 1. We intended to say that PCE 1 (aquatic breeding habitat) ideally should not have introduced fishes present, but that introduced fishes may be present in PCE 2. Given that an area only has to have one physical or biological feature present to meet the definition of critical habitat, areas that have fish present are still considered critical habitat if they meet PCE 2. Therefore, we did not intend to imply that areas have to be “free of fish” to be critical habitat. The specific changes include: Clarification regarding the “fishless” component within PCE 1 (aquatic breeding habitat) and a typographical error within PCE 2 (non-breeding aquatic habitat) to clarify that prey base was meant to sustain juvenile and adult frogs intermittently using this habitat (not tadpoles). Other updates since our last proposed rule include adding the known manageable threat of fish persistence and stocking for the Northern DPS of the mountain yellow-legged frog for critical habitat units 4A Frypan Meadows, 4B Granite Basin, 4C Sequoia Kings, 4D Kaweah River, and 5A Blossom Lakes to Table 6. In addition, the known threats that may affect the essential physical or biological features identified for the critical habitat units for the Yosemite toad have been updated since our last proposed rule and the adjustments are included in the Threats column of Table 7. We have also included minor corrections or clarifications following our peer reviewer comments. We provide the full revised PCEs below.
Additionally, based on comments received from the public, State and Federal agencies, and the peer reviewer who developed the habitat model used in part to identify areas with the requisite physical or biological features, we have reevaluated our criteria for determining critical habitat. This reevaluation has resulted in the reduction of the number of sites included in this final critical habitat designation for the Sierra Nevada yellow-legged frog because current habitat conditions were not reflected in our original analysis (see “(4) Additional Criteria Applied to Final Critical Habitat Designation for Sierra Nevada Yellow-legged Frog” under
The known manageable threat of fish persistence and stocking has been identified for the Northern DPS of the mountain yellow-legged frog for critical habitat units 4AFrypan Meadows, 4B Granite Basin, 4C Sequoia Kings, 4D Kaweah River, and 5A Blossom Lakes since our last proposed rule.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. On February 11, 2016, we published a final rule in the
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical or biological features essential for the Sierra Nevada yellow-legged frog, the
We have determined that the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog (hereafter referred to collectively as mountain yellow-legged frogs) require the following physical or biological features:
Mountain yellow-legged frogs are highly aquatic (Stebbins 1951, p. 340; Mullally and Cunningham 1956, p. 191; Bradford
Therefore, based on the information above, we identify high-elevation water bodies and adjacent lands within and proximate to water bodies utilized by extant frog metapopulations (mountain lakes and streams) to be a physical or biological feature needed by mountain yellow-legged frogs to provide space for their individual and population growth and for normal behavior.
Adult mountain yellow-legged frogs are thought to feed preferentially upon terrestrial insects and adult stages of aquatic insects while on the shore and in shallow water (Bradford 1983, p. 1171); however, feeding studies on mountain yellow-legged frogs in the Sierra Nevada are limited. Remains found inside the stomachs of mountain yellow-legged frogs in southern California represented a wide variety of invertebrates, including beetles, ants, bees, wasps, flies, true bugs, and dragonflies (Long 1970, p. 7). Larger frogs have been observed to eat more aquatic true bugs (Order Hemiptera) (Jennings and Hayes 1994, p. 77). Adult mountain yellow-legged frogs have also been found to eat Yosemite toad tadpoles (Mullally 1953, p. 183; Zeiner
Mountain yellow-legged frog tadpoles graze on benthic detritus, algae, and diatoms along rocky bottoms in streams, lakes, and ponds (Bradford 1983, p. 1171; Zeiner
The ecosystems utilized by mountain yellow-legged frogs have inherent community dynamics that sustain the food web. Habitats, therefore, must maintain sufficient water quality to sustain the frogs within the tolerance range of healthy individual frogs, as well as acceptable ranges for maintaining the underlying ecological community. These key physical parameters include pH, temperature, nutrients, and uncontaminated water. The high-elevation habitats that support mountain yellow-legged frogs require sufficient sunlight to warm the water where they congregate, and to allow subadults and adults to sun themselves.
Persistence of frog populations is dependent on a sufficient volume of water feeding into their habitats to provide the aquatic conditions necessary to sustain multiyear tadpoles through metamorphosis. This makes the hydrologic basin (or catchment area) a critical source of water for supplying downgradient habitats. The catchment area sustains water levels in lakes and streams used by mountain yellow-legged frogs via surface and ground water transport, which are crucially important for maintaining frog habitat.
Therefore, based on the information above, we identify sufficient quantity and quality of source waters that support habitat used by mountain yellow-legged frogs (including the balance of constituents to support a sustainable food web with a sufficient prey base), absence of competition from introduced fishes, exposure to solar radiation, and shallow (warmer) areas or shelves within ponds or pools to be a physical or biological feature needed by mountain yellow-legged frogs to provide for their nutritional and physiological requirements.
Mountain yellow-legged frogs require conditions that allow for overwinter survival, including lakes or pools within streams that do not freeze to the bottom, or refugia within or adjacent to such systems (such as underwater crevices) so that overwintering tadpoles and frogs do not freeze or experience anoxic conditions during their winter dormancy period (Bradford 1983, pp. 1173-1179; Matthews and Pope 1999, pp. 622-623; Pope 1999a, pp. 42-43; Vredenburg
Therefore, based on the information above, we identify refuge from lethal overwintering conditions (freezing and anoxia), and physical cover from
Mountain yellow-legged frogs are known to utilize habitats differently depending on season (Matthews and Pope 1999, pp. 620-623; Wengert 2008, p. 18). Reproduction and rearing require water bodies (or adequate refugia) that are sufficiently deep that they do not dry out in summer or freeze through in winter (except infrequently). Therefore, the conditions within the catchment for these habitats must be maintained such that sufficient volume and timing of snowmelt and adequate transport of precipitation to these rearing water bodies sustain the appropriate balance of conditions to maintain mountain yellow-legged frog's life-history needs. Conditions that determine the depth, siltation rates, or persistence of these water bodies (including sufficient perennial water at depths that do not freeze overwinter) are key determinants of habitat functionality (within tolerance ranges of each particular system). Finally, pre-breeding adult frogs need access to these water bodies in order to utilize resources available within nonbreeding habitat.
Therefore, based on the information above, we find the persistence of breeding and rearing habitats and access to and from seasonal habitat areas (whether via aquatic or terrestrial migration) to be a physical or biological feature needed by the mountain yellow-legged frog to allow successful reproduction and development of offspring.
In addition to migration routes (areas that provide back and forth between habitat patches within the metapopulation) without impediments across the landscape between proximal ponds within the ranges of functional metapopulations, mountain yellow-legged frogs require dispersal corridors (areas for recolonization and range expansion) to reestablish populations in extirpated areas within its current range to provide ecological and geographic resiliency (U.S. Forest Service
Establishing or maintaining populations across a broad geographic area spreads out the risk to individual populations across the range of the species, thereby conferring species resilience. Finally, protecting a wide range of habitats across the occupied range of the species simultaneously maintains genetic diversity of the species, which protects the underlying integrity of the major genetic clades (Vredenburg
Therefore, based on the information above, we identify dispersal routes (generally fish free), habitat connectivity, and a diversity of high-quality habitats across multiple watersheds throughout the geographic extent of the species' ranges and sufficiently representative of the major genetic clades to be a physical or biological feature needed by the mountain yellow-legged frog.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are:
(1)
(a) For lakes, be of sufficient depth not to freeze solid (to the bottom) during the winter (no less than 1.7 m (5.6 ft), but generally greater than 2.5 m (8.2 ft), and optimally 5 m (16.4 ft) or deeper (unless some other refuge from freezing is available)).
(b) Maintain a natural flow pattern, including periodic flooding, and have functional community dynamics in order to provide sufficient productivity and a prey base to support the growth and development of rearing tadpoles and metamorphs.
(c) Be free of introduced predators.
(d) Maintain water during the entire tadpole growth phase (a minimum of 2 years). During periods of drought, these breeding sites may not hold water long enough for individuals to complete metamorphosis, but they may still be considered essential breeding habitat if they provide sufficient habitat in most years to foster recruitment within the reproductive lifespan of individual adult frogs.
(e) Contain:
(i) Bank and pool substrates consisting of varying percentages of soil or silt, sand, gravel, cobble, rock, and boulders (for basking and cover);
(ii) Shallower microhabitat with solar exposure to warm lake areas and to foster primary productivity of the food web;
(iii) Open gravel banks and rocks or other structures projecting above or just beneath the surface of the water for adult sunning posts;
(iv) Aquatic refugia, including pools with bank overhangs, downfall logs or branches, or rocks and vegetation to provide cover from predators; and
(v) Sufficient food resources to provide for tadpole growth and development.
(2)
(a) Bank and pool substrates consisting of varying percentages of soil or silt, sand, gravel, cobble, rock, and boulders (for basking and cover);
(b) Open gravel banks and rocks projecting above or just beneath the surface of the water for adult sunning posts;
(c) Aquatic refugia, including pools with bank overhangs, downfall logs or branches, or rocks and vegetation to provide cover from predators;
(d) Sufficient food resources to support juvenile and adult foraging;
(e) Overwintering refugia, where thermal properties of the microhabitat protect hibernating life stages from winter freezing, such as crevices or holes within bedrock, in and near shore; and/or
(f) Streams, stream reaches, or wet meadow habitats that can function as corridors for movement between aquatic habitats used as breeding or foraging sites.
(3)
(a) Upland areas adjacent to or surrounding breeding and nonbreeding aquatic habitat that provide area for feeding and movement by mountain yellow-legged frogs.
(i) For stream habitats, this area extends 25 m (82 ft) from the bank or shoreline.
(ii) In areas that contain riparian habitat and upland vegetation (for example, mixed conifer, ponderosa pine, montane conifer, and montane riparian woodlands), the canopy overstory should be sufficiently thin (generally not to exceed 85 percent) to allow sunlight to reach the aquatic habitat and thereby provide basking areas for the species.
(iii) For areas between proximate (within 300 m (984 ft)) water bodies (typical of some high mountain lake habitats), the upland area extends from the bank or shoreline between such water bodies.
(iv) Within mesic habitats such as lake and meadow systems, the entire area of physically contiguous or proximate habitat is suitable for dispersal and foraging.
(b) Upland areas (catchments) adjacent to and surrounding both breeding and nonbreeding aquatic habitat that provide for the natural hydrologic regime (water quantity) of aquatic habitats. These upland areas should also allow for the maintenance of sufficient water quality to provide for the various life stages of the frog and its prey base.
We have determined that the Yosemite toad requires the following physical or biological features:
The Yosemite toad is commonly associated with wet meadow habitats in the Sierra Nevada of California. It occupies aquatic, riparian, and upland habitat throughout a majority of its range. Suitable habitat for the Yosemite toad is created and maintained by the natural hydrologic and ecological processes that occur within the aquatic breeding habitats and adjacent upland areas. Yosemite toads have been documented breeding in wet meadows and slow-flowing streams (Jennings and Hayes 1994, pp. 50-53), shallow ponds, and shallow areas of lakes (Mullally 1953, pp. 182-183). Upland habitat use varies among the different sexes and life stages of the toad (Morton and Pereyra 2010, p. 391); however, all Yosemite toads utilize areas within 1.5 km (0.9 mi) of breeding sites for foraging and overwintering, with juveniles predominantly overwintering in close proximity to breeding areas (Martin 2008, p. 154; Morton and Pereyra 2010, p. 391; Liang
Yosemite toads must be able to move between aquatic breeding habitats, upland foraging sites, and overwintering areas. Yosemite toads have been documented to move as far as 1.26 km (0.78 mi) between breeding and upland habitats (Liang 2010, p. ii). Based on observational data from three previous studies, Liang
Therefore, based on the information above, we identify both lentic (still) and lotic (flowing) water bodies, including meadows, and adjacent upland habitats with sufficient refugia (for example, logs, rocks) and overwintering habitat that provide space for normal behavior to be a physical or biological feature needed by Yosemite toads for their individual and population growth and for normal behavior.
Little is known about the diet of Yosemite toad tadpoles. However, their diet presumably approximates that of related
The habitats utilized by the Yosemite toad have inherent community dynamics that sustain the food web. Habitats also must maintain sufficient water quality and moisture availability to sustain the toads throughout their life stages, so that key physical parameters within the tolerance range of healthy individual frogs, as well as acceptable ranges for maintaining the underlying ecological community, are maintained. These parameters include, but are not limited to, pH, temperature, precipitation, slope, aspect, vegetation, and lack of anthropogenic contaminants at harmful concentrations. Yosemite toad locations are associated with low slopes, specific vegetation types (wet meadow, alpine-dwarf shrub, montane chaparral, red fir, and subalpine conifer), and certain temperature regimes (Liang and Stohlgren 2011, p. 217).
Therefore, based on the information above, we identify sufficient quantities and quality of source waters, adequate prey resources and the balance of constituents to support the natural food web, low slopes, and specific vegetation communities to be a physical or biological feature needed by Yosemite toads to provide for their nutritional and physiological requirements.
When not actively foraging, Yosemite toads take refuge under surface objects, including logs and rocks (Stebbins 1951, pp. 245-248; Karlstrom 1962, pp. 9-10), and in rodent burrows (Liang 2010, p. 95). Thus, areas of shelter interspersed with other moist environments, such as seeps and springs, are necessary. Yosemite toads also utilize rodent burrows (Jennings and Hayes 1994, pp. 50-53), as well as cover under surface objects and below willows, for overwintering (Kagarise Sherman 1980, pers. obs., as cited in Martin 2008, p. 158).
Therefore, based on the information above, we identify surface objects, rodent burrows, and other cover or overwintering areas to be a physical or biological feature needed by the Yosemite toad to provide cover and shelter.
Yosemite toads are prolific breeders that lay their eggs at snowmelt. Suitable breeding and embryonic rearing habitat generally occurs in very shallow water of subalpine lentic and lotic habitats,
The suitability of breeding habitat may vary from year to year due primarily to the amount of precipitation and local temperatures. Given the variability of habitats available for breeding, the high site-fidelity of breeding toads, an opportunistic breeding strategy, as well as the use of lotic systems, Yosemite toads require a variety of aquatic habitats to successfully maintain populations.
Therefore, based on the information above, we identify both lentic and slow-moving lotic aquatic systems that provide sufficient temperature for hatching and that maintain sufficient water for metamorphosis (a minimum of 5 weeks) to be a physical or biological feature needed by the Yosemite toad to allow for successful reproduction and development of offspring.
In addition to migration routes without impediments between upland areas and breeding locations across the landscape, Yosemite toads require dispersal corridors to utilize a wide range of breeding habitats in order to provide ecological and geographic resiliency in the face of changing environmental circumstances (for example, climate). This provides functional redundancy to safeguard against stochastic events, such as wildfires, but also may be necessary as different regions or microclimates respond to changing climate conditions. Maintaining populations across a broad geographic extent also reduces the risk of a stochastic event that extirpates multiple populations across the range of the species, thereby conferring species resilience. Finally, protecting a wider range of habitats across the occupied range of the species can assist in maintaining the genetic diversity of the species.
Therefore, based on the information above, we identify dispersal routes, habitat connectivity, and a diversity of habitats throughout the geographic extent of the species' range that sufficiently represent the distribution of the species (including inherent genetic diversity) to be a physical or biological feature needed by the Yosemite toad.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Yosemite Toad are:
(1)
(i) Are typically (or become) inundated during snowmelt;
(ii) Hold water for a minimum of 5 weeks, but more typically 7 to 8 weeks; and
(iii) Contain sufficient food for tadpole development.
(b) During periods of drought or less than average rainfall, these breeding sites may not hold surface water long enough for individual Yosemite toads to complete metamorphosis, but they are still considered essential breeding habitat because they provide habitat in most years.
(2)
(i) Sufficient cover (including rodent burrows, logs, rocks, and other surface objects) to provide summer refugia,
(ii) Foraging habitat,
(iii) Adequate prey resources,
(iv) Physical structure for predator avoidance,
(v) Overwintering refugia for juvenile and adult Yosemite toads,
(vi) Dispersal corridors between aquatic breeding habitats,
(vii) Dispersal corridors between breeding habitats and areas of suitable summer and winter refugia and foraging habitat, and/or
(viii) The natural hydrologic regime of aquatic habitats (the catchment).
(b) These upland areas should also maintain sufficient water quality to provide for the various life stages of the Yosemite toad and its prey base.
With this designation of critical habitat, we identify the physical or biological features and their associated PCEs that support the life-history processes essential to the conservation of the species.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection.
The features essential to the conservation of the Sierra Nevada yellow-legged frog and northern DPS of the mountain yellow-legged frog may require special management considerations or protection to reduce the following threats: The persistence of introduced trout populations in essential habitat; the risks related to the spread of pathogens; the effects from water withdrawals and diversions; impacts associated with timber harvest and fuels reduction activities; impacts associated with inappropriate livestock grazing; and intensive use by recreationists, including packstock camping and grazing.
Conservation actions that could ameliorate the threats described above include (but are not limited to) nonnative fish eradication; installation of fish barriers; modifications to fish stocking practices in certain water bodies; physical habitat restoration; and responsible management practices covering potentially incompatible activities, such as timber harvest and fuels management, water supply development and management, inappropriate livestock grazing, packstock grazing, and other recreational uses. These management practices will protect the PCEs for the mountain yellow-legged frog by reducing the stressors currently affecting population viability. Additionally, management of critical habitat lands will help maintain the underlying habitat quality, foster recovery, and sustain populations currently in decline.
The features essential to the conservation of the Yosemite toad may require special management considerations or protection to reduce the following threats: Impacts associated with timber harvest and fuels reduction activity; impacts associated with inappropriate livestock grazing; the spread of pathogens; and intensive use by recreationists, including packstock camping and grazing.
Management activities that could ameliorate the threats described above include (but are not limited to) physical habitat restoration and responsible management practices covering potentially incompatible beneficial uses
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations, we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If, after identifying currently occupied areas, we determine that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations, we then consider whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. We are not designating any areas outside the geographical area occupied by the species because occupied areas are sufficient for their conservation.
We are designating critical habitat units that we have determined based on the best scientific data available are known to be currently occupied and contain the primary constituent elements of the physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and the Yosemite toad (under section 3(5)(A)(i) of the Act). These species exhibit a metapopulation life-history model, and although they tend towards high site-fidelity, individuals within these populations can and do move through suitable habitat to take advantage of changing conditions. Additional areas outside the aquatic habitat within each unit or subunit were incorporated to assist in maintaining the hydrology of the aquatic features and to recognize the importance of dispersal between populations. In most instances, we aggregated areas we knew to be occupied, together with areas needed for hydrologic function and dispersal, into single units or subunits as described at 50 CFR 424.12(d) of our regulations. However, not all areas within each unit are being used by the species at all times, because, by definition, individuals within metapopulations move in space and time.
For the purposes of this final rule (as in our proposed rule), we equate the geographical area occupied at the time of listing with the current range for each of the species (50 CFR 424.12). Therefore, we are designating specific areas within the geographical area occupied at the time of listing (see criteria below) on which are found those physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection pursuant to section 3(5)(A)(i) of the Act. Within the current range of the species, based on the best scientific data available, some watersheds may or may not be actively utilized by extant frog or toad populations, but we consider these areas to be occupied at the scale of the geographic range of the species. We use the term “utilized” to refer to the finer geographic scale at the watershed or survey locality level of resolution when the species actively uses the area.
For this final rule, we completed the following basic steps to delineate critical habitat (specific methods follow below):
(1) We compiled all available data from observations of Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad;
(2) We identified, based on the best scientific data available, populations that are extant at the time of listing (current) versus those that are extirpated;
(3) We identified areas containing the components comprising the physical or biological features that may require special management considerations or protection;
(4) We circumscribed boundaries of potential critical habitat units based on the above information; and
(5) We removed, to the extent practicable, all areas that did not have the specific the physical or biological feature components, and therefore are not considered essential to the conservation of the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, or Yosemite toad.
(6) Following receipt of additional information from public comments along with those from USFS and CDFW, we reevaluated a number of sites in the proposed designation for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog. The re-evaluation was necessary because the MaxEnt 3.3.3e model we used to derive the proposed critical habitat designation was based on historical habitat conditions that did not reflect current habitat conditions and land use of these sites (Knapp 2013). This information has bearing on the restoration potential of such areas. Although the model limitations applied to both frog species, none of the additional criteria used to filter the aquatic habitats within the range of the northern DPS of the mountain yellow-legged frog (see following) suggested or supported change from the proposed designation for the northern DPS of the mountain yellow-legged frog. By comparison, our reevaluation did result in a reduction of sites from the proposed designation for the Sierra Nevada yellow-legged frog. All further discussion on the additional analysis (see “(4) Additional Criteria Applied to Final Critical Habitat Designation for Sierra Nevada Yellow-legged Frog,” below) only affects the final critical habitat designation for the Sierra Nevada yellow-legged frog.
Specific criteria and methodology used to determine critical habitat unit boundaries are discussed by species below.
We are treating these two species as similar in habitat and behavior.
We obtained observational data from the following sources to include in our Geographic Information System (GIS) database for mountain yellow-legged frog: (a) Surveys of the National Parks within the range of the mountain yellow-legged frog, including information collected by R. Knapp's Sierra Lakes Inventory Project, and G. Fellers; (b) CDFW High Mountain Lakes Project survey data; (c) Sierra Nevada Amphibian monitoring program (SNAMPH) survey data from USFS; and (d) unpublished data collected by professional biologists during systematic surveys. Collectively, our survey data spanned August 1993 through September 2010. We cross-checked our database against the California Natural Diversity Data Base (CNDDB) reports, and we opted to utilize the above sources in lieu of the CNDDB data, due to the systematic nature of the surveys and their inherent quality control.
We considered extant all localities where presence of living mountain yellow-legged frog has been confirmed since 1995, unless the last three (or more) consecutive surveys have found no individuals of any life stage. The 1995 cutoff date was selected because it reflects a logical break point given the underlying sample coverage and relatively long lifespan of the frogs and is consistent with the recent status evaluation by CDFW, and is therefore consistent with trend analyses compiled as part of that same effort (CDFW (formerly CDFG) 2011, pp. 17-25). We considered the specific areas within the currently occupied geographic range of the species that include all higher-quality habitat (see “(3) Habitat Unit Delineation,” below) that is contiguous to extant mountain yellow-legged frog populations. To protect remnant populations, areas where surveys confirmed the presence of mountain yellow-legged frog using the criteria above were generally considered necessary to conservation, including: All hydrologically connected waters within a distance of 3 km (1.9 mi), all areas overland within 300 m (984 ft) of survey locations, and the remainder of the watershed upgradient of that location. The 3-km (1.9-mi) boundary was derived from empirical data recording frog movements using radiotelemetry (see derivation below). Watersheds containing the physical or biological features (as indicated by the MaxEnt Model), and with multiple and repeated positive survey records spread throughout the habitat area, were completely included. If two subareas within adjacent watersheds (one utilized, and one not known to be utilized) had contiguous high-quality habitat, the area was included up to approximately 3 km (1.9 mi) of the survey location. These areas are considered essential to the conservation of the species, because they are presumed to be within the dispersal capacity of extant frog metapopulations or their progeny.
Two detailed movement studies using radio telemetry have been completed for mountain yellow-legged frogs from which movement and home range data may be derived. One of the studies, focused on the mountain yellow-legged frog, occurred in a lake complex in Dusy Basin in Kings Canyon National Park (Matthews and Pope 1999, pp. 615-624). The other study included a stream-dwelling population of what was, at the time, identified as the Sierra Nevada yellow-legged frog in Plumas County, California (Wengert 2008, pp. 1-32). While recent information suggests that at least some of the frogs in the Wengert study may have actually been foothill yellow-legged frog (
The farthest reported distance of a mountain yellow-legged frog from water is 400 m (1,300 ft) (Vredenburg
These empirical results may not necessarily be applied across the range of the mountain yellow-legged frog. It is likely that movement is largely a function of the underlying habitat mosaic particular to each location. Available data are limited to the two studies of different species spanning distinct habitat types. Therefore, generalizations across the range may not be inaccurate; however, two points are evident. First, although mountain yellow-legged frogs are known to be highly associated with aquatic habitat and to exhibit high site-fidelity (Stebbins 1951, p. 340; Mullally and Cunningham 1956, p. 191; Bradford
Another factor to consider when estimating home ranges from point samples is encounter probability within the habitat range (whether the point location where the surveyed frog is observed is at the center or edge of a home range). It is more likely that surveys will encounter individuals in their preferred habitat areas, especially when point counts are attributed to main lakes (and during the height of the breeding season or closer to the overwintering season). Nevertheless, the full extent of actual utilized habitat may be removed in time and space from the immediate area defined by point locations identified during one-time surveys. The underlying uncertainty associated with point encounters means that it is difficult, and possibly inaccurate, to utilize bounded home ranges from empirical data when you lack site-specific information regarding habitat use about the surveyed sample unit. Additionally, emigration and recolonization of extirpated sites require movement through habitat across generations, which may venture well beyond estimated single-season home ranges or movement distances. Therefore, the estimates from the very limited field studies are available as guidelines, but we also use the nature and physical layout of underlying habitat features (or site-specific knowledge, where available) to better define critical habitat units.
Finally, results from studies conducted in single localities should be considered estimates. Measured distance movements and estimated home ranges from limited studies should not be the sole determinants in habitat unit delineation. The ability of frogs to move along suitable habitat corridors should also be considered. This is especially significant in light of the need for dispersal and recolonization of unoccupied habitat as the species recovers from declines resulting from fish stocking and the spread of Bd. It is evident from the data that frogs can, over the course of a season (and certainly over a lifespan), move through several kilometers of habitat (if the intervening habitat is suitable).
Therefore, given observed dispersal ability based on available data, we have
To identify specific areas containing the physical or biological features essential for mountain yellow-legged frogs that may require special management considerations or protection, we examined the current and historical locations of mountain yellow-legged frogs in relation to the State of California's CALWATER watershed classification system (version 2.2), using the smallest planning watersheds.
In order to circumscribe the boundaries of potential critical habitat, we adopted the CALWATER boundaries, where appropriate, and delineated boundaries based on currently occupied aquatic habitat, as well as historically occupied habitats within the current range of the species. Watershed boundaries or other topographic features were utilized as the boundary when they provided for the maintenance of the hydrology and water quality of the aquatic system. Additional areas were included in order to provide for the dispersal capacity of the frogs, as discussed above.
To further refine the boundaries, we obtained the MaxEnt 3.3.3e species distribution model covering both the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog (CDFG 2011, pp. A-1—A-5; Knapp, unpublished data). This model utilizes 10 environmental variables that were selected based on known physiological tolerances of the mountain yellow-legged frog and the Sierra Nevada yellow legged frog to temperature and water availability. The variables used as model inputs included elevation, maximum elevation of unit watershed, slope, average annual temperature, average temperature of coldest quarter of the year, average temperature of the warmest month of the year, annual precipitation, precipitation during the driest quarter of the year, distance to water, and lake density. The model additionally allows for interactions among these variables and can fit nonlinear relationships using a diversity of feature classes (CDFG 2011, pp. A-1—A-5).
The MaxEnt model renders a grid output with likelihood of frog occurrence, a practical index of historical habitat quality. This output was compared to 2,847 frog occurrence records to determine the fit of the model. The model derived by Dr. Knapp fit the data well. Area under the curve (AUC) values are a measure of model fit, where values of 0.5 are random and values approaching 1.0 are fully accounted for within the model. The model fit for the MaxEnt 3.3.3e species distribution model covering both the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog had AUC values of 0.916 (standard deviation (s.d.) = 0.002) and 0.964 (s.d. = 0.006), respectively.
Individual critical habitat units were constructed to reflect the balance of frog dispersal ability and habitat use (in other words, based on movement distances), along with projections of habitat quality as expressed by the probability models (MaxEnt grid outputs) and other habitat parameters consistent with the PCEs defined above.
Specifically, we considered areas to be actively utilized if extant occurrences existed within 300 m (984 ft) overland, or within 3 km (1.9 mi) if connected by high-quality dispersal habitat (stream or high lake density habitat). In general, areas up-gradient from occupied water bodies (within the catchment) were circumscribed at the watershed boundary. Aquatic habitat of high quality (defined by higher probability of frog presence) within 3 km (1.9 mi) from extant survey records was included, along with areas necessary to protect the relevant physical or biological features. We circumscribed all habitats with MaxEnt model output of 0.4 and greater within utilized watersheds, but also extended boundaries to include stream courses, ridges, or watershed boundaries where appropriate to protect the relevant physical or biological features. The threshold value of 0.4 was utilized as an index for establishing the historical range by Knapp, as it incorporated most historical and current frog locations (CDFG 2011, p. A-3). Using the available data (CDFW
Where the MaxEnt 3.3.3e species distribution model indicated poor quality of intervening habitat in the mapped landscape within 3 km (1.9 mi) of survey records, we generally cropped these areas at dispersal barriers or watershed boundaries, but may have also followed streams or topographic features. To minimize human error from visual interpolation of habitat units, we aggregated the high-quality habitat grids from the model output in ArcGIS using a neighbor distance within 1,000 m (3,281 ft), and we used this boundary to circumscribe model outputs when selecting this boundary parameter. The 1,000-m (3,281-ft) aggregating criterion most closely agreed with manual visual interpolation methods that minimized land area included during unit delineation.
If areas were contiguous to designated areas within utilized watersheds, we include the higher quality habitat of the adjacent watersheds with model ranking 0.4 or greater. These areas are essential if they are of sufficiently high habitat quality to be important for future dispersal, translocation, and restoration consistent with recovery needs. In general, for these “neighboring” watersheds, circumscribed habitat boundaries followed either the 0.4+ MaxEnt aggregate polygon boundary, stream courses, or topographic features that otherwise constituted natural dispersal barriers. Further, subunit designation does not include catchment areas necessary to protect relevant physical or biological features if the mapped area was greater than 3 km (1.9 mi) from a survey location. This lower protective standard was appropriate because these areas were beyond the outside bound of extant survey records, and our confidence that these areas are, or will be, utilized is lower.
We also used historical records in some instances to include proximate watersheds that may or may not be currently utilized within subareas of high habitat quality as an index of the utility of habitat essential to the conservation of the frogs. This methodology was adopted to compensate for any uncertainties in our underlying scientific and site-specific knowledge of ecological features that
While the MaxEnt 3.3.3e model was an effective indicator of PCEs, and useful in defining suitable habitat based on the physical or biological features required by the Sierra Nevada yellow-legged frog, Dr. Knapp informed us in peer review that the model was based on physical and ecological parameters as a historical model that does not necessarily take into account current habitat conditions. Based on this feedback, and in light of many comments highlighting that such sites are degraded by water development and receive high public use (often being lower elevation reservoirs, which are less optimal than high-elevation, “back country” lakes and streams for frog restoration), we determined it was necessary to apply additional criteria to re-evaluate whether these very low restoration potential areas in fact should be included in the designation of critical habitat for the Sierra Nevada yellow-legged frog.
It was first necessary to find a method to objectively identify which areas have very low restoration potential. We used three factors to evaluate areas to determine which ones are characterized by: (1) High public use and disturbance, (2) water level fluctuations from reservoir management, and (3) a location where they are far removed from extant frog metapopulations. Based on these factors, we determined that such areas would be poor candidates for restoration actions when other, better, opportunities exist in geographic proximity.
We identified all reservoirs that were located close to paved roadways or populated areas and outside the expected, current, utilized range of extant Sierra Nevada yellow-legged frog populations. This included all reservoirs within 1 km (0.62 mi) of a paved roadway (TIGER/L shape files, U.S. Census 2014) or populated area (ESRI Streetmap Premium for ArcGIS 2013) that also have a dam (water control feature within 10 m (33 ft) (based on USGS National Hydrography Dams Dataset 2013)), and were greater than 3 km (1.8 mi) from an extant frog locality.
We also identified all lakes and streams slated for fish stocking by the CDFW (CDFW unpubl. data). We evaluated the list of areas proposed for the Statewide stocking program pending a final record of decision on the Hatchery Operations Environmental Impact Statement/Report (ICF Jones and Stokes, 2010). We looked at all those areas and further screened them to identify only those outside and intersecting a 3-km (1.9-mi) buffer to extant frog localities.
We then identified all areas that were brought up during the public comment periods (including agency comments) because they are subject to high levels of public consumptive uses (such as cabins, resorts, angling, and other recreational activities) or other significant habitat alteration. These are areas where, during our public comment periods, the commenter(s) identified, by name, locations that currently experience recreational use (including angling), have low habitat-restoration value, lack extant frogs, or are distanced from extant frogs.
There were many areas common to each of the three evaluation groups above. We aggregated all sites identified using the process above, and we eliminated the duplicates. We evaluated each area on a case-by-case basis to determine whether it met the criteria for final designation. We analyzed the overall impact that the absence of a specific location would have on the conservation value of the of critical habitat subunit in which it was located. The analysis used the same ecological qualifications, based on the physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frogs and the amount and spatial arrangement of features needed in each subunit to meet the definition of critical habitat.
If a site was intersecting, or within, a 3-km (1.9-mi) buffer denoting proximity to extant frog metapopulations, we applied additional weighting within our analysis using parameters such as: Distance by land to the extant locality, distance by stream to the extant locality, overall habitat quantity and habitat quality (by MaxEnt 3.3.3e model) within that same subunit and in immediate proximity to the site under consideration for reevaluation, and number and spatial arrangement (density and overall dispersion) of other extant frog localities within that same subunit. We also factored in the relative status of the particular genetic clade to which that subunit is associated. Sites that are within 500 m (1,640 ft) overland, or 1 km (0.62 mi) via stream from an extant frog locality remain in this final critical habitat designation. These figures are conservative estimates for single season movement (from empirical data, USFWS unpubl. data), which may be used to approximate functional home range; are consistent with the 1.0-km distance used during the California State Department of Fish and Wildlife status evaluation (CDFW 2011) to define metapopulation connectivity; and are currently the standard being implemented within ongoing consultations (USFWS 2014).
This analysis was conducted in the context of the spatial and ecological features of each critical habitat subunit and the conservation needs of the species. Although these areas do have the PCEs reflecting the physical or biological features comprising critical habitat, they are not being included in this final critical habitat designation because current habitat conditions were not reflected in our original habitat model. These areas were ultimately eliminated based on the criteria we used for determining the boundaries of critical habitat. As a result of comments received during the public comment period and peer review, we are now considering current habitat conditions and the restoration potential of these degraded habitats in light of the recovery needs for Sierra Nevada yellow-legged frog.
A full list of sites we no longer include in this critical habitat designation appears in Table 2, below. The areal extent of each site on the list is based on the high-water line for solely the aquatic portion of the lake, reservoir, or stream stretch. Additionally, unless explicitly indicated (by name) in Table 2, the surrounding lands, waterways, or tributaries of each site on the list remain in the final designation. Areas that are not explicitly indicated by name in Table 2 remain part of the final critical habitat designation. Interested parties with questions as to whether a particular project lies within designated critical habitat for Sierra Nevada yellow-legged frog within the immediate proximity to one of the areas listed in Table 2 should contact the local jurisdictional field office of the Service to resolve uncertainty.
We obtained observational data from the following sources to include in our GIS database for the Yosemite toad: (a) Surveys of the National Parks within the range of the Yosemite toad, including information collected by R. Knapp's Sierra Lakes Inventory Project and G. Fellers; (b) survey data from each of the
We considered extant all localities where Yosemite toad has been detected since 2000. The 2000 date was used for several reasons: (1) Comprehensive surveys for Yosemite toad throughout its range were not conducted prior to 2000, so data prior to 2000 are limited; and (2) given the longevity of the species, toad locations identified since 2000 are likely to contain extant populations.
We considered the occupied geographic range of the species to include all suitable habitats within dispersal distance and geographically contiguous to extant Yosemite toad populations. To maintain genetic integrity and provide for sufficient range and distribution of the species, we identified areas with dense concentrations of Yosemite toad populations interconnected or interspersed among suitable breeding habitats and vegetation types, as well as populations on the edge of the range of the species. We also delineated specific areas to include dispersal and upland migration corridors.
Two movement studies using radiotelemetry have been completed for the Yosemite toad from which migration distances may be derived. One study took place in the Highland Lakes on the Stanislaus National Forest (Martin 2008, pp. 98-113), and the other took place in the Bull Creek watershed on the Sierra National Forest (Liang 2010, p. 96). The maximum observed seasonal movement distances from breeding pools within the Highland Lakes area was 657 m (2,157 ft) (Martin 2008, p. 144), while the maximum at the Bull Creek watershed was 1,261 m (4,137 ft). Additionally, Liang
We used the mean plus 1.96 times the standard error as an expression of the 95 percent confidence interval (Streiner 1996, pp. 498-502; Curran-Everett 2008, pp. 203-208) to estimate species-level movement behavior from such studies. Using this measure, we derived a confidence-bounded estimate for average distance moved in a single season based on the Liang study (2010, pp. 107-109) of 1,015 m (3,330 ft). We focused on the Liang study because it had a much larger sample size and likely captured greater variability within a population. However, given that Liang
Therefore, our criteria for identifying the boundaries of critical habitat units take into account dispersal behavior and distances, but also consider the underlying habitat quality and types, specifically the physical or biological features (and site-specific knowledge, where available), in defining boundaries for essential habitat.
To identify areas containing the physical or biological features essential for the Yosemite toad that may require special management considerations or protection, we examined the current and historical locations of Yosemite toads in relation to the State of California vegetation layer, USFS meadow information dataset, the State of California's CALWATER watershed classification system (version 2.2) using the smallest planning watersheds, and appropriate topographic maps.
In order to circumscribe the boundaries of potential critical habitat, we expanded the bounds of known breeding locations for the Yosemite toad by the 1,250-m (4,101-ft) dispersal distance and delineated boundaries also taking into account vegetation types, meadow complexes, and dispersal barriers. Where appropriate, we utilized the CALWATER boundaries to reflect potential barriers to dispersal (high, steep ridges), and delineated boundaries based on our best estimate of what constitutes currently utilized habitat. Watershed boundaries or other topographic features were marked as the unit boundary when that boundary provided for the maintenance of the hydrology and water quality of the aquatic system.
In some instances (such as no obvious dispersal barrier or uncertainty regarding the suitability of habitat within dispersal distance of a known toad location), to further refine the boundaries, we obtained the MaxEnt 3.3.3e species habitat suitability/distribution model developed and utilized by Liang
As the model incorporated factors that did not directly correlate to the physical or biological features or PCEs (for example, distance to agriculture, distance to fire perimeter, and distance to timber activity) (Liang and Stohlgren 2011, p. 22)), further analysis was required. In areas that were either occupied by the Yosemite toad or within dispersal distance of the toad (but the model indicated a low probability of occurrence), we assessed the utility of the model by further estimating potential sources of model derivation (such as fire or anthropogenic factors). If habitat quality indicated by the MaxEnt model was biased based on factors other than those linked to physical or biological features or PCEs, we discounted the MaxEnt output in those areas and based our designation on the PCEs. In these cases, areas are included in our critical habitat designation that ranked low in the MaxEnt output.
Individual critical habitat units are constructed to reflect toad dispersal ability and habitat use, along with projections of habitat quality, as expressed by the probability models (MaxEnt grid outputs) and other habitat parameters consistent with the PCEs defined above.
We also used historical records as an index of the utility of habitat essential to the conservation of the Yosemite toad to help compensate for any uncertainties in our underlying scientific and site-specific knowledge of ecological features that indicate habitat quality, as we did for the frogs.
When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad (
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
Units are designated based on sufficient elements of physical or biological features being present to support the life processes of the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, or the Yosemite toad. Some units contain all of the identified elements of physical or biological features and support multiple life processes, while some segments contain only some elements of the physical or biological features necessary to support the species' particular use of that habitat. It is important to understand that not all PCEs are required to provide functional habitat. When trying to determine if any specific areas or infrastructure are excluded by narrative, it is best to discuss your particular project with the Fish and Wildlife Office of jurisdiction.
Based on the above described criteria, we are designating 437,929 ha (1,082,147 ac) as critical habitat for the Sierra Nevada yellow-legged frog (Table 1). This area represents approximately 18 percent of the historical range of the species as estimated by Knapp (unpublished data). All subunits designated as critical habitat are considered occupied (at the subunit level) and include lands within Lassen, Plumas, Sierra, Nevada, Placer, El Dorado, Amador, Calaveras, Alpine, Tuolumne, Mono, Mariposa, Madera, Fresno, and Inyo Counties, California.
Following further evaluation (see
We are designating 89,637 ha (221,498 ac) as critical habitat for the northern DPS of the mountain yellow-legged frog (Table 3). This area represents approximately 19 percent of the historical range of the northern DPS of the mountain yellow-legged frog in the Sierra Nevada. All subunits designated as critical habitat are considered occupied (at the subunit level) and include lands within Fresno, Inyoand Tulare Counties, California.
We are designating 303,889 ha (750,926 ac) as critical habitat for the Yosemite toad (Table 4). This area represents approximately 28 percent of the historical range of the Yosemite toad in the Sierra Nevada. All units designated as critical habitat are considered occupied (at the unit level) and include lands within Alpine, Tuolumne, Mono, Mariposa, Madera, Fresno, and Inyo Counties, California.
We are designating three units encompassing 24 subunits as critical habitat for the Sierra Nevada yellow-legged frog. The critical habitat units and subunits that we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Sierra Nevada yellow-legged frog. Units are numbered for the three major genetic clades (Vredenburg
We present brief descriptions of all units and reasons why they meet the definition of critical habitat for the Sierra Nevada yellow-legged frog below. Each unit and subunit contains the physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog, which may require special management considerations or protection (see
Unit 1 represents the northernmost portion of the species' range. It reflects unique ecological features within the range of the species, comprising populations that are stream-based. Unit 1, including all subunits, is an essential component of the entirety of this critical habitat designation due to the unique genetic and geographic distribution this unit encompasses. The frog populations within Clade 1 of the Sierra Nevada yellow-legged frog are at very low numbers and face significant threats from habitat fragmentation. The critical habitat within the unit is necessary to sustain viable populations within Clade 1 of the Sierra Nevada yellow-legged frog, which are at very low abundances. Unit 1 is crucial to the species for range expansion and recovery.
The Morris Lake subunit consists of approximately 1,079 ha (2,665 ac), and is located in Plumas County, California, approximately 4 km (2.5 mi) northwest of Highway 70. Land ownership within this subunit consists entirely of Federal land within the Plumas National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing and contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Morris Lake subunit may require special management considerations or protection due to the presence of introduced fishes, water diversions and operations, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Bean Creek subunit consists of approximately 13,523 ha (33,417 ac). It is located in Plumas County, California, approximately 3 km (1.9 mi) south of Highway 70 near the intersection with Caribou Road, and it is bisected on the south end by the Oroville Highway. Land ownership within this subunit consists of approximately 12,464 ha (30,798 ac) of Federal land and 1,060 ha (2,619 ac) of private land. The Bean Creek subunit is located entirely within the boundaries of the Plumas National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing and contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Bean Creek subunit may require special management considerations or protection due to the presence of introduced fishes, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Deanes Valley subunit consists of approximately 2,020 ha (4,990 ac) and is located in Plumas County, California, approximately 5.7 km (3.6 mi) south of Buck's Lake Road, 6.4 km (4 mi) east of Big Creek Road, 7.5 km (4.7 mi) west of Quincy-LaPorte Road, and 3.5 km (2.2 mi) north of the Middle Fork Feather
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Deanes Valley subunit may require special management considerations or protection due to inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Slate Creek subunit consists of approximately 2,688 ha (6,641 ac), and is located in Plumas and Sierra Counties, California, approximately 0.7 km (0.4 mi) east of the town of LaPorte, and 2.5 km (1.6 mi) southwest of the west branch of Canyon Creek. Land ownership within this subunit consists of approximately 2,259 ha (5,581 ac) of Federal land and 429 ha (1,060 ac) of private land. The Slate Creek subunit is located entirely within the boundaries of the Plumas National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing and contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Slate Creek subunit may require special management considerations or protection due to inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
This unit represents a significant fraction of the Sierra Nevada yellow-legged frog's range, and it reflects unique ecological features within the range by comprising populations that are both stream- and lake-based. Unit 2, including all subunits, is an essential component of the entirety of this critical habitat designation due to the unique genetic and geographic distribution this unit encompasses. The frog populations within Clade 2 of the Sierra Nevada yellow-legged frog distribution are at very low to intermediate abundance and face significant threats from habitat fragmentation resulting from the introduction of fish. The critical habitat within the unit is necessary to sustain viable populations within Clade 2 of the Sierra Nevada yellow-legged frog, which are at very low to intermediate abundances. Unit 2 is crucial to the species for range expansion and recovery.
The Boulder/Lone Rock Creeks subunit consists of approximately 4,500 ha (11,119 ac), and is located in Plumas and Lassen Counties, California, between 8 km (5 mi) and 18 km (11.3 mi) west of Highway 395 near the county line along Wingfield Road. Land ownership within this subunit consists of approximately 3,953 ha (9,767 ac) of Federal land and 547 ha (1,352 ac) of private land. Subunit 2A includes Antelope Lake (which receives two creeks as its northwestern headwaters), and these water bodies provide connectivity for both main areas within the subunit. The Boulder/Lone Rock Creeks subunit is located predominantly within the boundaries of the Plumas National Forest, with some area lying within the Lassen National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Boulder/Lone Rock Creeks subunit may require special management considerations or protection due to the presence of introduced fishes, water diversions and operations, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Gold Lake subunit consists of approximately 6,189 ha (15,294 ac), and is located in Plumas and Sierra Counties, California, approximately 8.7 km (5.4 mi) south of Highway 70, and 4.4 km (2.75 mi) north of Highway 49, along Gold Lake Highway to the east. Land ownership within this subunit consists of approximately 5,488 ha (13,561 ac) of Federal land and 702 ha (1,734 ac) of private land. The Gold Lake subunit is located within the Plumas and Tahoe National Forests. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Gold Lake subunit may require special management considerations or protection due to introduced fishes, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Black Buttes subunit consists of approximately 55,057 ha (136,049 ac), and spans from Sierra County through Nevada County into Placer County, California. It is 8.5 km (5.3 mi) west of Highway 89, and 3.7 km (2.3 mi) north of the North Fork American River, and is bisected on the south by Highway 80. Land ownership within this subunit consists of approximately 32,649 ha (80,678 ac) of Federal land and 22,408 ha (55,371 ac) of private land. The Black Buttes subunit is located entirely within the boundaries of the Tahoe National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Black Buttes subunit may require special management considerations or protection due to the presence of introduced fishes, water diversions and operations, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Five Lakes subunit consists of approximately 3,758 ha (9,286 ac), and is located in the eastern portion of Placer County, California, approximately 2 km (1.25 mi) west of Highway 89 and 12.3 km (7.7 mi) east of Foresthill Road. Land ownership within this subunit consists of
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Five Lakes subunit may require special management considerations or protection due to the presence of introduced fishes, timber management and fuels reduction, and recreational activities.
The Crystal Range subunit consists of approximately 33,406 ha (82,548 ac), and is located primarily in El Dorado and Placer Counties, California, approximately 3.8 km (2.4 mi) west of Highway 89, bounded on the south by Highway 50, and 7 km (4.4 mi) east of Ice House Road. The Crystal Range subunit includes portions of the Desolation Wilderness. Land ownership within this subunit consists of approximately 31,261 ha (77,249 ac) of Federal land and 2,145 ha (5,299 ac) of private land. The Crystal Range subunit includes areas within the Eldorado and Tahoe National Forests and also the Lake Tahoe Basin Management Unit. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Crystal Range subunit may require special management considerations or protection due to the presence of introduced fishes, water diversions and operations, inappropriate grazing activity, and recreational activities.
The East Amador subunit consists of approximately 43,414 ha (107,278 ac), and is located in Amador, Alpine, and El Dorado Counties, California. The East Amador subunit is roughly bounded on the northwest by Highway 88, and on the southeast by Highway 4. Land ownership within this subunit consists of approximately 40,140 ha (99,188 ac) of Federal land, 56 ha (138 ac) of State land, and 3,218 ha (7,952 ac) of private land. The East Amador subunit includes areas within the Eldorado, Stanislaus, and Humboldt-Toiyabe National Forests, and areas within the Emigrant Wilderness. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the East Amador subunit may require special management considerations or protection due to the presence of introduced fishes, water diversions and operations, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The North Stanislaus subunit consists of approximately 10,462 ha (25,851 ac), and is located in Alpine, Tuolumne, and Calaveras Counties, California. It is south of the North Fork Mokelumne River, and is bisected by Highway 4, which traverses the unit from southwest to northeast. Land ownership within this subunit consists of approximately 10,445 ha (25,811 ac) of Federal land and 16 ha (41 ac) of private land. The North Stanislaus subunit is located entirely within the boundaries of the Stanislaus National Forest, the Mokelumne Wilderness and Carson-Iceberg Wilderness. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the North Stanislaus subunit may require special management considerations or protection due to the presence of introduced fishes, water diversions and operations, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Wells Peak subunit consists of approximately 11,711 ha (28,939 ac), and is located in Alpine, Mono, and Tuolumne Counties, California, approximately 6.4 km (4 mi) west of Highway 395, and bounded by Highway 108 on the south. Land ownership within this subunit consists of approximately 11,650 ha (28,788 ac) of Federal land and 61 ha (150 ac) of private land. Federal holdings within the Wells Peak subunit are within the Humboldt-Toiyabe and Stanislaus National Forests, and the Carson-Iceberg and Emigrant Wilderness Areas. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Wells Peak subunit may require special management considerations or protection due to introduced fishes, inappropriate grazing activity, timber management and fuels reduction, and recreational activities.
The Emigrant Yosemite subunit consists of approximately 86,161 ha (212,908 ac), and is located in Tuolumne and Mono Counties, California, approximately 11 km (6.9 mi) south of Highway 108 and 7.4 km (4.6 mi) north of Hetch Hetchy Reservoir. Land ownership within this subunit consists of approximately 86,089 ha (212,730 ac) of Federal land, 50 ha (124 ac) of local jurisdiction lands, and 22 ha (54 ac) of private land. The Emigrant Yosemite subunit is predominantly in Yosemite National Park and the Stanislaus and Humboldt-Toiyabe National Forests, including lands within the Emigrant and Hoover Wilderness Areas. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the
The Spiller Lake subunit consists of approximately 1,094 ha (2,704 ac), and is located in Tuolumne County, California, approximately 1.2 km (0.75 mi) west of Summit Lake. The Spiller Lake subunit consists entirely of Federal land, all located within Yosemite National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Spiller Lake subunit may require special management considerations or protection due to fish persistence.
The Virginia Canyon subunit consists of approximately 891 ha (2,203 ac), and is located in Tuolumne County, California, approximately 4.3 km (2.7 mi) southwest of Spiller Lake, and roughly bounded on the east by Return Creek. The Virginia Canyon subunit consists entirely of Federal land, all located within Yosemite National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Virginia Canyon subunit may require special management considerations or protection due to fish persistence.
The Register Creek subunit consists of approximately 838 ha (2,070 ac), and is located in Tuolumne County, California, approximately 1.2 km (0.75 mi) west of Regulation Creek, with Register Creek intersecting the subunit on the southwest end and running along the eastern portion to the north. The Register Creek subunit consists entirely of Federal land, all located within Yosemite National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Register Creek subunit may require special management considerations or protection due to fish persistence.
The White Mountain subunit consists of approximately 8,416 ha (20,796 ac), and is located in Tuolumne and Mono Counties, California, approximately 12.4 km (7.75 mi) west of Highway 395, and is intersected on the southeast boundary by Tioga Pass Road (Highway 120). Land ownership within this subunit consists of approximately 8,366 ha (20,674 ac) of Federal land and 49 ha (122 ac) of private land. The White Mountain subunit is predominantly located within Yosemite National Park and Inyo National Forest, with area located within the Hoover Wilderness. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the White Mountain subunit may require special management considerations or protection due to fish persistence.
The Unicorn Peak subunit consists of approximately 2,088 ha (5,160 ac), and is located in Tuolumne County, California, and is intersected from east to west on its northern boundary by Tioga Pass Road (Highway 120). The Unicorn Peak subunit consists entirely of Federal land, all within Yosemite National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Unicorn Peak subunit may require special management considerations or protection due to fish persistence.
This unit represents a significant portion of the species' range, and it reflects a core conservation area comprising the most robust remaining populations at higher densities (closer proximity) across the species' range. Unit 3, including all subunits, is an essential component of the entirety of this critical habitat designation due to the unique genetic and distributional area this unit encompasses. The frog populations within Clade 3 of the Sierra Nevada yellow-legged frog distribution face significant threats from habitat fragmentation. The critical habitat within the Unit is necessary to sustain viable populations within Clade 3 of the Sierra Nevada yellow-legged frog, which are at very low abundances. Unit 3 is crucial to the species for range expansion and recovery.
The Yosemite Central subunit consists of approximately 1,408 ha (3,480 ac), and is located in Mariposa County, California, approximately 4 km (2.5 mi) northwest of Tioga Pass Road (Highway 120) in the heart of Yosemite National Park. The Yosemite Central subunit consists entirely of Federal lands within Yosemite National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Yosemite Central subunit may require special management considerations or protection due to fish persistence.
The Cathedral subunit consists of approximately 38,784 ha (95,837 ac), and is located in Mariposa, Madera, Mono, and Tuolumne Counties, California, approximately 15.6 km (9.75 mi) west of Highway 395 and 9.4 km (5.9 mi) south of Highway 120. The
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Cathedral subunit may require special management considerations or protection due to the presence of introduced fishes and inappropriate grazing activity.
The Minarets subunit consists of approximately 3,090 ha (7,636 ac), and is located in Madera County, California, approximately 5.4 km (3.4 mi) southwest of Highway 203. The Minarets subunit consists entirely of Federal land located within the Inyo National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Minarets subunit may require special management considerations or protection due to the presence of introduced fishes and recreational activities.
The Mono Creek subunit consists of approximately 18,481 ha (45,666 ac), and is located in Fresno and Inyo Counties, California, approximately 16 km (10 mi) southwest of Highway 395. The Mono Creek subunit consists entirely of Federal land located within the Sierra and Inyo National Forests, including area within the John Muir Wilderness. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Mono Creek subunit may require special management considerations or protection due to the presence of introduced fishes, inappropriate grazing activity, and recreational activities.
The Evolution/Leconte subunit consists of approximately 87,136 ha (215,318 ac), and is located in Fresno and Inyo Counties, California, approximately 12.5 km (7.8 mi) southwest of Highway 395. Land ownership within this subunit consists of approximately 86,968 ha (214,903 ac) of Federal land, 81 ha (200 ac) of local jurisdictional lands, and 87 ha (215 ac) of private land. The Evolution/Leconte subunit is predominantly within the Sierra and Inyo National Forests, including area within the John Muir Wilderness, and Kings Canyon National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Evolution/Leconte subunit may require special management considerations or protection due to the presence of introduced fishes and inappropriate grazing activity.
The Pothole Lakes subunit consists of approximately 1,736 ha (4,289 ac), and is located in Inyo County, California, approximately 13.1 km (8.2 mi) west of Highway 395. Land ownership within this subunit consists of approximately 1,735 ha (4,286 ac) of Federal land and 1 ha (2 ac) of private land. The Pothole Lakes subunit is almost entirely located within the Inyo National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog in the Pothole Lakes subunit may require special management considerations or protection due to the presence of introduced fishes and recreational activities.
We are designating two units and seven subunits as critical habitat for the northern DPS of the mountain yellow-legged frog. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the northern DPS of the mountain yellow-legged frog. Units are named after the major genetic clades (Vredenburg
We present brief descriptions of all subunits and reasons why they meet the definition of critical habitat for the northern DPS of the mountain yellow-legged frog below. Each unit and subunit designated as critical habitat for the northern DPS of the mountain yellow-legged frog contains aquatic habitat for breeding activities (PCE 1); and/or aquatic habitat to provide for shelter, foraging, predator avoidance, and dispersal during nonbreeding phases within their life history (PCE 2); and/or upland areas for feeding and movement, and catchment areas to provide for water supply and water quality (PCE 3); and is currently occupied by the species. Each unit and subunit contains the physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog, which may require special management (see the
This unit represents a significant portion of the northern DPS of the mountain yellow-legged frog's range and reflects a core conservation area comprising the most robust remaining populations at higher densities (closer proximity) across the species' range. Unit 4, including all subunits, is an essential component to the entirety of this critical habitat designation due to the unique genetic and distributional area this unit encompasses. The frog populations within Clade 4 of the northern DPS of the mountain yellow-legged frog distribution face significant threats from habitat fragmentation. The critical habitat within the unit is necessary to sustain viable populations within Clade 4 northern DPS of the mountain yellow-legged frog, which are at very low abundances. Unit 4 is crucial to the species for range expansion and recovery. In addition, Clade 4 includes the only remaining basins with high-density, lake-based populations that are not infected with Bd, and Bd will likely invade these uninfected populations in the near future unless habitat protections and special management considerations are implemented. It is necessary to broadly protect remnant habitat across the range of Clade 4 to facilitate species persistence and recovery.
The Frypan Meadows subunit consists of approximately 1,585 ha (3,917 ac), and is located in Fresno County, California, approximately 4.3 km (2.7 mi) northwest of Highway 180. The Frypan Meadows subunit consists entirely of Federal land, located predominantly within the boundaries of the Kings Canyon National Park, with some overlap into the Monarch Wilderness within the Sequoia National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog in the Frypan Meadows subunit may require special management considerations or protection due to fish persistence.
The Granite Basin subunit consists of approximately 1,777 ha (4,391 ac), and is located in Fresno County, California, approximately 3.2 km (2 mi) north of Highway 180. The Granite Basin subunit consists entirely of Federal land, located within the boundaries of the Kings Canyon National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog in the Granite Basin subunit may require special management considerations or protection due to fish persistence.
The Sequoia Kings subunit consists of approximately 67,566 ha (166,958 ac), and is located in Fresno, Inyo and Tulare Counties, California, approximately 18 km (11.25 mi) west of Highway 395 and 4.4 km (2.75 mi) southeast of Highway 180. The Sequoia Kings subunit consists entirely of Federal land, all within Sequoia and Kings Canyon National Parks. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog in the Sequoia Kings subunit may require special management considerations or protection due to the presence of introduced fishes and fish persistence.
The Kaweah River subunit consists of approximately 3,663 ha (9,052 ac), and is located in Tulare County, California, approximately 2.8 km (1.75 mi) east of Highway 198. The Kaweah River subunit consists entirely of Federal land, all within Sequoia National Park. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog in the Kaweah River subunit may require special management considerations or protection due to fish persistence.
This unit represents the southern portion of the species' range and reflects unique ecological features within the range of the species because it comprises populations that are stream-based. Unit 5, including all subunits, is an essential component of the entirety of this critical habitat designation due to the unique genetic and distributional area this unit encompasses. The frog populations within Clade 5 of the northern DPS of the mountain yellow-legged frog's distribution are at very low numbers and face significant threats from habitat fragmentation. The critical habitat within the nit is necessary to sustain viable populations within Clade 5 of the northern DPS of the mountain yellow-legged frog, which are at very low abundances. Unit 5 is crucial to the species for range expansion and recovery.
The Blossom Lakes subunit consists of approximately 2,069 ha (5,113 ac), and is located in Tulare County, California, approximately 0.8 km (0.5 mi) northwest of Silver Lake. The Blossom Lakes subunit consists entirely of Federal land, located within Sequoia National Park and Sequoia National Forest. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog in the Blossom Lakes subunit may require special management considerations or protection due to fish persistence.
The Coyote Creek subunit consists of approximately 9,802 ha (24,222 ac), and is located in Tulare County, California, approximately 7.5 km (4.7 mi) south of Moraine Lake. Land ownership within this subunit consists of approximately 9,792 ha (24,197 ac) of Federal land and 10 ha (24 ac) of private land. The Coyote Creek subunit is predominantly within Sequoia National Park and Sequoia and Inyo National Forests, including area within the Golden Trout Wilderness. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog in the Coyote Creek subunit may require special management considerations or protection due to the presence of introduced fishes and recreational activities.
The Mulkey Meadows subunit consists of approximately 3,175 ha (7,846 ac), and is located in Tulare and Inyo Counties, California, approximately 10 km (6.25 mi) west of Highway 395. The Mulkey Meadows subunit consists entirely of Federal land, all within the Inyo National Forest, including area within the Golden Trout Wilderness. This subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat sustaining frogs, and is needed to provide for core surviving populations and their unique genetic heritage.
The physical or biological features essential to the conservation of the northern DPS of the mountain yellow-legged frog in the Mulkey Meadows subunit may require special management considerations or protection due to the presence of introduced fishes, inappropriate grazing activity, and recreational activities.
We are designating 16 units as critical habitat for the Yosemite toad. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Yosemite toad. The 16 units we designate as critical habitat are listed in Table 7, and all 16 units are currently occupied.
We present brief descriptions of all units and reasons why they meet the definition of critical habitat for the Yosemite toad below. Each unit designated as critical habitat for the Yosemite toad contains aquatic habitat for breeding activities (PCE 1) and/or upland habitat for foraging, dispersal, and overwintering activities (PCE 2), and is currently occupied by the species. Each unit contains the physical or biological features essential to the conservation of the Yosemite toad, which may require special management (see the
This unit consists of approximately 14,884 ha (36,778 ac), and is located in Alpine County, California, north and south of Highway 4. Land ownership within this unit consists of approximately 13,896 ha (34,338 ac) of Federal land and 987 ha (2,440 ac) of private land. The Blue Lakes/Mokelumne unit is predominantly within the Eldorado, Humboldt-Toiyabe, and Stanislaus National Forests, including lands within the Mokelumne and Carson-Iceberg Wilderness Areas. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit represents the northernmost portion of the Yosemite toad's range and constitutes an area of high genetic diversity. The Blue Lakes/Mokelumne unit is an essential component of the entirety of this critical habitat designation due to the genetic and distributional area this unit encompasses.
The physical or biological features essential to the conservation of the Yosemite toad in the Blue Lakes/Mokelumne unit may require special management considerations or protection due to inappropriate grazing and recreational activities. This unit also has threats due to disease,
This unit consists of approximately 30,803 ha (76,115 ac), and is located near the border of Alpine, Tuolumne, and Mono Counties, California, predominantly south of Highway 108. Land ownership within this unit consists of approximately 30,789 ha (76,081 ac) of Federal land and 13 ha (33 ac) of private land. The Leavitt Lake/Emigrant unit is predominantly within the Stanislaus and Humboldt-Toiyabe National Forests, including lands within the Emigrant and Hoover Wilderness Areas, and Yosemite National Park. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit is considered essential to the conservation of the species because it contains a high concentration of Yosemite toad breeding locations and represents a variety of habitat types utilized by the species. The Leavitt Lake/Emigrant unit provides continuity of habitat between adjacent units, as well as providing for a variety of habitat types necessary to sustain Yosemite toad populations under a variety of climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Leavitt Lake/Emigrant unit may require special management considerations or protection due to inappropriate grazing and recreational activities. This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 11,797 ha (29,150 ac) of Federal land located entirely within Humboldt-Toiyabe National Forest, including area within the Hoover Wilderness and Yosemite National Park. The Rogers Meadow unit is located along the border of Tuolumne and Mono Counties, California, north of Highway 120. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations, is located in a relatively pristine ecological setting, and represents a variety of habitat types utilized by the species. The Rogers Meadow unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units as well as providing for a variety of habitat types necessary to sustain Yosemite toad populations under various climate regimes. This unit has no manageable threats (note that disease, predation, and climate change are not considered manageable threats). However, the physical or biological features with this unit require special protection because of the unit's value as occupied habitat that provides geographic connectivity to allow for Yosemite toad metapopulation persistence and resilience across the landscape to changing climate.
This unit consists of approximately 2,303 ha (5,690 ac) of Federal land located entirely within the Inyo and Humboldt-Toiyabe National Forests, including area within the Hoover Wilderness and Yosemite National Park. The Hoover Lakes unit is located along the border of Mono and Tuolumne Counties, California, east of Highway 395. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains Yosemite toad populations with a high degree of genetic variability east of the Sierra crest within the central portion of the species' range. This unit contains habitats that are important to the Yosemite toad facing an uncertain climate future. The Hoover Lakes unit is an essential component of the entirety of this critical habitat designation because it provides a continuity of habitat between adjacent units, provides for the maintenance of genetic variation, and provides habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of Yosemite toad in the Hoover Lakes unit may require special management considerations or protection due to recreational activities. This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 56,530 ha (139,688 ac), and is located within Tuolumne, Mono, Mariposa, and Madera Counties, California, both north and south of Highway 120. Land ownership within this unit consists of approximately 56,477 ha (139,557 ac) of Federal land and 53 ha (131 ac) of private land. The Tuolumne Meadows/Cathedral unit is predominantly within the Inyo National Forest, with area within the Hoover Wilderness and Yosemite National Park. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations, represents a variety of habitat types utilized by the species, has high genetic variability, and, due to the long-term occupancy of this unit, is considered an essential locality for Yosemite toad populations. The Tuolumne Meadows/Cathedral unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, as well as providing for a variety of habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Tuolumne Meadows/Cathedral unit may require special management considerations or protection due to recreational activities. This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 6,472 ha (15,992 ac) of Federal land located entirely within Yosemite National Park. The McSwain Meadows unit is located along the border of Tuolumne and Mariposa Counties, California, north and south of Highway 120 in the vicinity of Yosemite Creek. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This contains Yosemite toad populations located at the western edge of the range of the species within the central region of its geographic distribution. This area contains a
The physical or biological features essential to the conservation of Yosemite toad in the McSwain Meadows unit may require special management considerations or protection due to recreational activities. This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 1,701 ha (4,204 ac) of Federal land located entirely within Yosemite National Park. The Porcupine Flat unit is located within Mariposa County, California, north and south of Highway 120 and east of Yosemite Creek. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a concentration of Yosemite toad localities in proximity to the western edge of the species' range within the central region of its geographic distribution and provides a wide variety of habitat types utilized by the species. The Porcupine Flat unit is an essential component of the entirety of this critical habitat designation due to its proximity to Unit 6, which allows Unit 7 to provide continuity of habitat between Units 5 and 6, and its geographic distribution and variation in habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Porcupine Flat unit may require special management considerations or protection due to recreational activities. This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 1,859 ha (4,594 ac) of Federal land located entirely within Yosemite National Park. The Westfall Meadows unit is located within Mariposa County, California, along Glacier Point Road. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. The Westfall Meadows unit contains Yosemite toad populations located at the western edge of the species' range within the central region of its geographic distribution, and south of the Merced River. Given that the Merced River acts as a dispersal barrier in this portion of Yosemite National Park, it is unlikely that there is genetic exchange between Unit 8 and Unit 6; thus Unit 8 represents an important geographic and genetic distribution of the species essential to conservation. This unit contains habitats essential to the conservation of the Yosemite toad, which faces an uncertain climate future. Unit 8 is an essential component of the entirety of this critical habitat designation because it provides a unique geographic distribution and variation in habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Westfall Meadows unit may require special management considerations or protection due to recreational activities.
This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 4,377 ha (10,816 ac) of Federal land located entirely within the Sierra National Forest and Yosemite National Park. The Triple Peak unit is located within Madera County, California, between the Merced River and the South Fork Merced River. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations and represents a variety of habitat types utilized by the species. The Triple Peak unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, specifically east-west connectivity, as well as habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Triple Peak unit may require special management considerations or protection due to recreational activities.
This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 6,212 ha (15,351 ac) of Federal land located entirely within Yosemite National Park. The Chilnualna unit is located within Mariposa and Madera Counties, California, north of the South Fork Merced River. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations and represents a variety of habitat types utilized by the species. The Chilnualna Unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, as well as habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Chilnualna unit may require special management considerations or protection due to recreational activities.
This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 7,706 ha (19,043 ac), and is located within Madera County, California, south of the South Fork Merced River. Land ownership within this unit consists of
The physical or biological features essential to the conservation of Yosemite toad in the Iron Mountain unit may require special management considerations or protection due to inappropriate grazing, timber harvest and fuels reduction, and recreational activities.
This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 39,987 ha (98,809 ac), and is located within Fresno, Inyo, Madera, and Mono Counties, California, southeast of the Middle Fork San Joaquin River. Land ownership within this unit consists of approximately 39,986 ha (98,807 ac) of Federal land and 1 ha (2 ac) of private land. The Silver Divide unit is predominantly within the Inyo and Sierra National Forests, including lands within the John Muir and Ansel Adams Wilderness Areas. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations and represents a variety of habitat types utilized by the species. The Silver Divide unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, as well as habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Silver Divide unit may require special management considerations or protection due to inappropriate grazing and recreational activities. This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 20,666 ha (51,067 ac), and is located within Fresno and Inyo Counties, California, northeast of the South Fork San Joaquin River. Land ownership within this unit consists of approximately 20,658 ha (51,046 ac) of Federal land and 8 ha (21 ac) of private land. The Humphrys Basin/Seven Gables unit is predominantly within the Inyo and Sierra National Forests, including area within the John Muir Wilderness. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations and represents a variety of habitat types utilized by the species. The Humphrys Basin/Seven Gables unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, as well as habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Humphrys Basin/Seven Gables unit may require special management considerations or protection due to recreation activities.
This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 70,978 ha (175,390 ac), and is located in Fresno County, California, between the south fork of the San Joaquin River and the north fork of the Kings River. Land ownership within this unit consists of approximately 70,670 ha (174,629 ac) of Federal land and 308 ha (761 ac) of private land. The Kaiser/Dusy unit is predominantly within the Sierra National Forest. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations, represents a variety of habitat types utilized by the species, and is located at the southwestern extent of the Yosemite toad range. The Kaiser/Dusy unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, as well as habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Kaiser/Dusy unit may require special management considerations or protection due to inappropriate grazing, timber harvest and fuels reduction, and recreational activities.
This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
This unit consists of approximately 14,905 ha (36,830 ac) of Federal land located entirely within Kings Canyon National Park and the Sierra National Forest. The Upper Goddard Canyon unit is located within Fresno and Inyo Counties, California, at the upper reach of the South Fork San Joaquin River. This unit is currently occupied and contains the physical or biological features essential to the conservation of the species. This unit contains a high concentration of Yosemite toad breeding locations, represents a variety of habitat types utilized by the species, and is located at the easternmost extent within the southern portion of the Yosemite toad's range. The Upper Goddard Canyon unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, as well as habitat types necessary to sustain Yosemite toad populations under various climate regimes. This unit has no manageable threats (note that disease, predation, and climate change are not considered manageable threats). However, the area requires special protection because of its value as
This unit consists of approximately 12,711 ha (31,409 ac), and is located in Fresno County, California, south of the North Fork Kings River. Land ownership within this unit consists of approximately 12,613 ha (31,168 ac) of Federal land and 97 ha (241 ac) of private land. The Round Corral Meadow unit is predominantly within the Sierra National Forest. This unit contains a high concentration of Yosemite toad breeding locations, represents a variety of habitat types utilized by the species, and encompasses the southernmost portion of the range of the species. The Round Corral Meadow unit is an essential component of the entirety of this critical habitat designation because it provides continuity of habitat between adjacent units, represents the southernmost portion of the range, and provides habitat types necessary to sustain Yosemite toad populations under various climate regimes.
The physical or biological features essential to the conservation of the Yosemite toad in the Round Corral Meadow unit may require special management considerations or protection due to inappropriate grazing and recreational activities. This unit also has threats due to disease, predation, and climate change. Climate change is not considered a manageable threat. The need for special management considerations or protection due to disease and predation is currently undefined due to uncertainty regarding the extent and magnitude of these particular stressors.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.
We published a final rule setting forth a new definition of destruction or adverse modification on February 11, 2016 (81 FR 7214), which became effective on March 14, 2016. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions not on Federal land that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of these species or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Sierra Nevada yellow-legged frog and northern DPS mountain yellow-legged frog. If
(1) Actions that significantly alter water chemistry or temperature. Such activities could include, but are not limited to, release of chemicals, biological pollutants, or heated effluents into surface water or into connected ground water at a point source or by dispersed release (non-point source). These activities may alter water conditions beyond the tolerances of the Sierra Nevada yellow-legged frog or northern DPS of the mountain yellow-legged frog and result in direct or adverse effects to their critical habitat.
(2) Actions that would significantly increase sediment deposition within the stream channel, lake, or other aquatic feature, or disturb riparian foraging and dispersal habitat. Such activities could include, but are not limited to, excessive sedimentation from livestock overgrazing, road construction, channel alteration, timber harvest, unauthorized off-road vehicle or recreational use, and other watershed and floodplain disturbances. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the Sierra Nevada yellow-legged frog or northern DPS of the mountain yellow-legged frog by increasing the sediment deposition to levels that would adversely affect a frog's ability to complete its life cycle.
(3) Actions that would significantly alter channel or lake morphology, geometry, or water availability. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, development, mining, dredging, destruction of riparian vegetation, water diversion, water withdrawal, and hydropower generation. These activities may lead to changes to the hydrologic function of the channel or lake, and alter the timing, duration, waterflows, and levels that would degrade or eliminate mountain yellow-legged frog habitat. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the Sierra Nevada yellow-legged frog or northern DPS of the mountain yellow-legged frog.
(4) Actions that significantly reduce or limit the availability of breeding or overwintering aquatic habitat for the Sierra Nevada yellow-legged frog or northern DPS of the mountain yellow-legged frog. Such activities could include, but are not limited to, stocking of introduced fishes, water diversion, water withdrawal, and hydropower generation. These actions could lead to the reduction in available breeding and overwintering habitat for the Sierra Nevada yellow-legged frog or northern DPS of the mountain yellow-legged frog through reduction in water depth necessary for the frog to complete its life cycle. Additionally, the stocking of introduced fishes could prevent or preclude recolonization of otherwise available breeding or overwintering habitats, which is necessary for range expansion and recovery of the Sierra Nevada yellow-legged frog and northern DPS of the mountain yellow-legged frog metapopulations.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Yosemite toad. These activities include, but are not limited to:
(1) Actions that significantly alter water chemistry or temperature. Such activities could include, but are not limited to, release of chemicals, biological pollutants, or heated effluents into the surface water or into connected ground water at a point source or by dispersed release (non-point source). These activities could alter water conditions beyond the tolerances of the Yosemite toad and result in direct or cumulative adverse effects to the critical habitat.
(2) Actions that would significantly increase sediment deposition within the wet meadow systems and other aquatic features utilized by Yosemite toad. Such activities could include, but are not limited to, excessive sedimentation from livestock overgrazing, road construction, inappropriate fuels management activities, channel alteration, inappropriate timber harvest activities, unauthorized off-road vehicle or recreational use, and other watershed and floodplain disturbances. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the Yosemite toad by increasing the sediment deposition to levels that would adversely affect a toad's ability to complete its life cycle.
(3) Actions that would significantly alter wet meadow or pond morphology, geometry, or inundation period. Such activities could include, but are not limited to, livestock overgrazing, channelization, impoundment, road and bridge construction, mining, dredging, and inappropriate vegetation management. These activities may lead to changes in the hydrologic function of the wet meadow or pond and alter the timing, duration, waterflows, and levels that would degrade or eliminate Yosemite toad habitat. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the Yosemite toad.
(4) Actions that disturb or eliminate upland foraging or overwintering habitat, as well as dispersal habitat, for the Yosemite toad. Such activities could include, but are not limited to, livestock overgrazing, road construction, recreational development, timber harvest activities, unauthorized off-road vehicle or recreational use, and other watershed and floodplain disturbances. These activities could eliminate or reduce essential cover components in terrestrial habitats of the Yosemite toad and adversely affect a toad's ability to successfully overwinter or oversummer and may fragment habitat.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and draft economic analysis (DEA) of the proposed critical habitat designation and related factors (Industrial Economics, Incorporated 2013). The analysis, dated August 27, 2013, was made available for public review from January 10, 2014, through March 11, 2014 (Industrial Economics, Incorporated 2013). The DEA addressed potential economic impacts of critical habitat designation for the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Additional information relevant to the probable incremental economic impacts of critical habitat designation for the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad is summarized below and available in the Final Economic Analysis (FEA) (Industrial Economics, Incorporated 2015), available at
All areas identified for critical habitat designation are occupied by or proximate to one or more of the listed amphibian species. The Service anticipates that conservation efforts recommended through section 7 consultation as a result of the listing of the species (
The DEA estimated total incremental impacts between $630,000 and $1.5 million. The FEA estimates slightly higher total costs: Between $760,000 and $1.7 million. The key findings are as follows: Low-end total present value impacts anticipated to result from the designation of all areas proposed as critical habitat for the amphibians are approximately $760,000 over 20 years, assuming a 7 percent discount rate ($960,000 assuming a 3 percent discount rate). High-end total present value impacts are approximately $1.7 million over 20 years, assuming a 7 percent discount rate ($2.3 million assuming a 3 percent discount rate). The actual impact for each activity likely falls between the two bounds considered; however information allowing for further refinement of the presented methodology presented is not readily available.
The increase in costs reflects the following updates/changes:
(1) Updated grazing/packstock analysis based on additional information provided by Humboldt-Toiyabe National Forest (HTNF) and public commenters.
(2) Expanded analytic time frame. The DEA estimated incremental impacts over a 17-year time frame. The FEA updated this analysis to use a 20-year analytic timeframe. The only activity that this had a material effect on is hydropower, for which the FEA forecasts annual consultations, thus expanding the time frame by 3 years and resulting in an increase in the number of consultations. This change also impacts annualized impact calculations.
(3) The FEA updated the first year of analysis to 2015, whereas the DEA had assumed 2014 as the first year of the analysis. This change does not affect the total number of consultations forecast, but changes the year in which consultations occur. In other words, we assume that consultations set for the first year of the analysis will still occur in the first year of the analysis (2015).
(4) The FEA updates the dollar year of the analysis from 2014 to 2015, and thus includes updating the GS salary rates from which the administrative costs are derived.
Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad based on economic impacts.
A copy of the IEM, DEA, and FEA may be obtained from the Sacramento Fish and Wildlife Office (2800 Cottage Way, Room W-2605, Sacramento CA, 95825, or see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense in the proposed critical habitat designation where a national security impact might exist. In preparing this final rule, we have determined that no lands within the designation of critical habitat for the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad are owned or exclusively managed by the Department of Defense or Department of Homeland Security. The area that is managed by the Humboldt-Toiyabe National Forest and used by the USMC for high-altitude training purposes via special use permit can be successfully managed through a completed INRMP with ongoing uses; therefore, we anticipate no impact on national security or homeland security. Consequently, the Secretary is not exercising her discretion to exclude any areas from this final designation based on impacts on national security or homeland security.
Under section 4(b)(2) of the Act, we also consider any other relevant impacts resulting from the designation of critical habitat. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this final rule, we have determined that there are currently no permitted HCPs or other approved management plans for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, or the Yosemite toad, and the final designation does not include any tribal lands or tribal trust resources. We anticipate no
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with the Sierra Nevada yellow-legged frog's, northern DPS of the mountain yellow-legged frog's, and Yosemite toad's conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because only a tiny fraction of designated critical habitat is under small government jurisdiction. Further, the designation of critical habitat imposes no obligations on State or local governments. It will not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Incremental impacts may occur due to administrative costs of section 7 consultations for project activities; however, these are not expected to significantly affect small governments as they are expected to be borne by the Federal Government and CDFW. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. Therefore, a Small Government Agency Plan is not required.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad in a takings implications assessment. Based on the best available information, the assessment concludes that this designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad does not pose significant takings implications.
In accordance with E.O. 13132 (Federalism), this final rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in California. We received comments from the California Department of Fish and Wildlife (CDFW), and we have addressed them in the Summary of Comments and Recommendations section of this rule. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the Federal Government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands occupied by the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, or Yosemite toad at the time of listing that contain the physical or biological features essential to conservation of the species, and no tribal lands unoccupied by the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, or Yosemite toad that are essential for the conservation of the species. Therefore, we are not designating critical habitat for the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, or Yosemite toad on tribal lands.
A complete list of all references cited is available on the Internet at
The primary authors of this rulemaking are the staff members of the Sacramento Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(d)
(1) Critical habitat units are depicted for Fresno, Inyo and Tulare Counties, California, on the maps in this entry.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the
(i)
(A) For lakes, be of sufficient depth not to freeze solid (to the bottom) during the winter (no less than 1.7 meters (m) (5.6 feet (ft)), but generally greater than 2.5 m (8.2 ft), and optimally 5 m (16.4 ft) or deeper (unless some other refuge from freezing is available)).
(B) Maintain a natural flow pattern, including periodic flooding, and have functional community dynamics in order to provide sufficient productivity and a prey base to support the growth and development of rearing tadpoles and metamorphs.
(C) Be free of introduced predators.
(D) Maintain water during the entire tadpole growth phase (a minimum of 2 years). During periods of drought, these breeding sites may not hold water long enough for individuals to complete metamorphosis, but they may still be considered essential breeding habitat if they provide sufficient habitat in most years to foster recruitment within the reproductive lifespan of individual adult frogs.
(E) Contain:
(
(
(
(
(
(ii)
(A) Bank and pool substrates consisting of varying percentages of soil or silt, sand, gravel, cobble, rock, and boulders (for basking and cover);
(B) Open gravel banks and rocks projecting above or just beneath the surface of the water for adult sunning posts;
(C) Aquatic refugia, including pools with bank overhangs, downfall logs or branches, or rocks and vegetation to provide cover from predators;
(D) Sufficient food resources to support juvenile and adult foraging;
(E) Overwintering refugia, where thermal properties of the microhabitat protect hibernating life stages from winter freezing, such as crevices or holes within bedrock, in and near shore; and/or
(F) Streams, stream reaches, or wet meadow habitats that can function as corridors for movement between aquatic habitats used as breeding or foraging sites.
(iii)
(A) Upland areas adjacent to or surrounding breeding and nonbreeding aquatic habitat that provide area for feeding and movement by mountain yellow-legged frogs.
(
(
(
(
(B) Upland areas (catchments) adjacent to and surrounding both breeding and nonbreeding aquatic habitat that provide for the natural hydrologic regime (water quantity) of aquatic habitats. These upland areas should also allow for the maintenance of sufficient water quality to provide for the various life stages of the frog and its prey base.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries of designated critical habitat on September 26, 2016.
(4)
(5) Index map for northern DPS of the mountain yellow-legged frog critical habitat follows:
(6) Unit 4 (Subunits 4A, 4B, 4C, 4D), Fresno, Inyo, and Tulare Counties, California. Map follows:
(7) Unit 5 (Subunits 5A, 5B, 5C), Tulare and Inyo Counties, California. Map follows:
(1) Critical habitat units are depicted for Lassen, Plumas, Sierra, Nevada, Placer, El Dorado, Amador, Alpine, Calaveras, Tuolumne, Mono, Mariposa, Madera, Fresno, and Inyo Counties, California, on the maps in this entry.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog consist of:
(i)
(A) For lakes, be of sufficient depth not to freeze solid (to the bottom) during the winter (no less than 1.7 meters (m) (5.6 feet (ft)), but generally greater than 2.5 m (8.2 ft), and optimally 5 m (16.4 ft) or deeper (unless some other refuge from freezing is available)).
(B) Maintain a natural flow pattern, including periodic flooding, and have functional community dynamics in order to provide sufficient productivity and a prey base to support the growth and development of rearing tadpoles and metamorphs.
(C) Be free of introduced predators.
(D) Maintain water during the entire tadpole growth phase (a minimum of 2 years). During periods of drought, these breeding sites may not hold water long enough for individuals to complete metamorphosis, but they may still be
(E) Contain:
(
(
(
(
(
(ii)
(A) Bank and pool substrates consisting of varying percentages of soil or silt, sand, gravel, cobble, rock, and boulders (for basking and cover);
(B) Open gravel banks and rocks projecting above or just beneath the surface of the water for adult sunning posts;
(C) Aquatic refugia, including pools with bank overhangs, downfall logs or branches, or rocks and vegetation to provide cover from predators;
(D) Sufficient food resources to support juvenile and adult foraging;
(E) Overwintering refugia, where thermal properties of the microhabitat protect hibernating life stages from winter freezing, such as crevices or holes within bedrock, in and near shore; and/or
(F) Streams, stream reaches, or wet meadow habitats that can function as corridors for movement between aquatic habitats used as breeding or foraging sites.
(iii)
(A) Upland areas adjacent to or surrounding breeding and nonbreeding aquatic habitat that provide area for feeding and movement by mountain yellow-legged frogs.
(
(
(
(
(B) Upland areas (catchments) adjacent to and surrounding both breeding and nonbreeding aquatic habitat that provide for the natural hydrologic regime (water quantity) of aquatic habitats. These upland areas should also allow for the maintenance of sufficient water quality to provide for the various life stages of the frog and its prey base.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries of designated critical habitat on September 26, 2016.
(4)
(5) Index map for Sierra Nevada yellow-legged frog critical habitat follows:
(6) Unit 1 (Subunits 1A, 1B, 1C, 1D), Plumas, and Sierra Counties, California. Map follows:
(7) Unit 2 (Subunits 2A, 2B, 2C, 2D), Lassen, Plumas, Sierra, Nevada, and Placer Counties, California. Map follows:
(8) Unit 2 (Subunits 2E, 2F, 2G, 2H), Placer, El Dorado, Amador, Alpine, Calaveras, Tuolumne, and Mono Counties, California. Map follows:
(9) Unit 2 (Subunits 2I, 2J, 2K, 2L, 2M, 2N), Tuolumne and Mono Counties, California. Map follows:
(10) Unit 3 (Subunits 3A, 3B, 3C), Tuolumne, Mariposa, Mono, and Madera Counties, California. Map follows:
(11) Unit 3 (Subunits 3D, 3E, 3F), Mono, Fresno, and Inyo Counties, California. Map follows:
(1) Critical habitat units are depicted for Alpine, Tuolumne, Mono, Mariposa, Madera, Fresno, and Inyo Counties, California, on the maps in this entry.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Yosemite toad consist of two components:
(i)
(A) This habitat consists of bodies of fresh water, including wet meadows, slow-moving streams, shallow ponds, spring systems, and shallow areas of lakes, that:
(
(
(
(B) During periods of drought or less than average rainfall, these breeding sites may not hold surface water long enough for individual Yosemite toads to complete metamorphosis, but they are still considered essential breeding habitat because they provide habitat in most years.
(ii)
(A) This habitat consists of areas adjacent to or surrounding breeding habitat up to a distance of 1.25 kilometers (0.78 miles) in most cases (that is, depending on surrounding landscape and dispersal barriers), including seeps, springheads, talus and boulders, and areas that provide:
(
(
(
(
(
(
(
(
(B) These upland areas should also maintain sufficient water quality to provide for the various life stages of the Yosemite toad and its prey base.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries of designated critical habitat on September 26, 2016.
(4)
(5) Index map for Yosemite toad critical habitat follows:
(6) Unit 1: Blue Lakes/Mokelumne, Alpine County, California. Map follows:
(7) Unit 2: Leavitt Lake/Emigrant, Alpine, Mono, and Tuolumne Counties, California. Map follows:
(8) Unit 3: Rogers Meadow, Mono and Tuolumne Counties, California. Map follows:
(9) Unit 4: Hoover Lakes, Mono and Tuolumne Counties, California. Map follows:
(10) Unit 5: Tuolumne Meadows/Cathedral, Madera, Mariposa, Mono, and Tuolumne Counties, California. Map follows:
(11) Unit 6: McSwain Meadows, Mariposa and Tuolumne Counties, California. Map follows:
(12) Unit 7: Porcupine Flat, Mariposa County, California. Map follows:
(13) Unit 8: Westfall Meadows, Mariposa County, California. Map follows:
(14) Unit 9: Triple Peak, Madera County, California. Map follows:
(15) Unit 10: Chilnualna, Madera and Mariposa Counties, California. Map follows:
(16) Unit 11: Iron Mountain, Madera County, California. Map follows:
(17) Unit 12: Silver Divide, Fresno, Inyo, Madera, and Mono Counties, California. Map follows:
(18) Unit 13: Humphrys Basin/Seven Gables, Fresno and Inyo Counties, California. Map follows:
(19) Unit 14: Kaiser/Dusy, Fresno County, California. Map follows:
(20) Unit 15: Upper Goddard Canyon, Fresno and Inyo Counties, California. Map follows:
(21) Unit 16: Round Corral Meadow, Fresno County, California. Map follows:
| 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 |