Page Range | 66179-66486 | |
FR Document |
Page and Subject | |
---|---|
81 FR 66274 - Information Collection Being Reviewed by the Federal Communications Commission | |
81 FR 66322 - Culturally Significant Objects Imported for Exhibition Determinations: “Kemang Wa Lehulere: In All My Wildest Dreams” Exhibition | |
81 FR 66275 - Sunshine Act Meetings | |
81 FR 66257 - Reorganization and Expansion of Foreign-Trade Zone 82 Under Alternative Site Framework; Mobile, Alabama | |
81 FR 66259 - Aluminum Extrusions From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Scope Ruling and Notice of Amended Final Scope Ruling Pursuant to Court Decision | |
81 FR 66257 - Foreign-Trade Zone (FTZ) 21-Dorchester County, South Carolina; Notification of Proposed Production Activity; Volvo Car US Operations, Inc. (Motor Vehicles and Related Parts); Ridgeville, South Carolina | |
81 FR 66272 - Notice of New Streamlined Approval Process for Non-Regulatory Methods in SW-846 | |
81 FR 66271 - Adequacy Status of the Cleveland-Akron-Lorain and Columbus, Ohio Areas and the Ohio and Indiana Portions of the Cincinnati Indiana-Ohio-Kentucky Area Submitted 8-Hour Ozone Redesignation Requests and Maintenance Plans for Transportation Conformity Purposes | |
81 FR 66299 - Agency Information Collection Activities: Comment Request | |
81 FR 66322 - Notice of Receipt of Borrego Crossing Pipeline, LLC's Application for a Presidential Permit To Construct, Connect, Operate, and Maintain Pipeline Facilities on the Border of the United States and Mexico | |
81 FR 66320 - Notice of Receipt of Application for an Amended Presidential Permit for the Presidio-Ojinaga International Bridge on the U.S.-Mexico Border at Presidio, Texas and Ojinaga, Chihuahua, Mexico | |
81 FR 66321 - Delegation by the Secretary of State to the Assistant Secretary for South and Central Asian Affairs U.S. Participation in “Astana Expo 2017” | |
81 FR 66184 - Passports; Correction | |
81 FR 66274 - Notice of Termination, 10009 First Heritage Bank, N.A., Newport Beach, California | |
81 FR 66275 - Notice of Termination; 10261 Turnberry Bank, Aventura, Florida | |
81 FR 66285 - Meeting of the 2018 Physical Activity Guidelines Advisory Committee | |
81 FR 66191 - Medication Assisted Treatment for Opioid Use Disorders Reporting Requirements | |
81 FR 66322 - CSX Transportation, Inc.-Abandonment Exemption-in Logan County, W. Va. | |
81 FR 66253 - Submission for OMB Review; Comment Request | |
81 FR 66285 - Proposed Information Collection Activity; Comment Request Proposed Projects: | |
81 FR 66266 - Application To Export Electric Energy; Morgan Stanley Capital Group Inc. | |
81 FR 66326 - Designation of 12 Individuals, 25 Entities, and 1 Blocked Property Pursuant to Executive Order 13581, “Blocking Property of Transnational Criminal Organizations” | |
81 FR 66199 - Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation | |
81 FR 66227 - Freedom of Information Act Regulations | |
81 FR 66324 - Commercial Activities on Interstate Rest Areas | |
81 FR 66255 - Notice of Public Meeting of the Wisconsin Advisory Committee for a Meeting To Discuss Findings and Recommendations Resulting From the Committee's Study of Hate Crime in the State | |
81 FR 66275 - Proposed Agency Information Collection Activities; Comment Request | |
81 FR 66265 - Agency Information Collection Activities; Comment Request; Measures and Methods for the National Reporting System for Adult Education | |
81 FR 66325 - Nashville and Eastern Railroad Corporation's Positive Train Control Development Plan, Revision 2.5, Dated June 22, 2016 | |
81 FR 66264 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Space Vehicle Launch Operations | |
81 FR 66288 - Notice of a Federal Advisory Committee Meeting Manufactured Housing Consensus Committee | |
81 FR 66274 - Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for Yuhuang Chemical Company, Inc. Methanol Plant in Louisiana | |
81 FR 66253 - Notice of Proposed New Fee Sites; Federal Lands Recreation Enhancement Act (Title VIII, Pub. L. 108-447) | |
81 FR 66243 - Lease and Interchange of Vehicles; Motor Carriers of Passengers | |
81 FR 66277 - Statement of Organization, Functions, and Delegations of Authority | |
81 FR 66323 - Projects Approved for Consumptive Uses of Water | |
81 FR 66240 - Determination of Nonattainment and Reclassification of the Houston-Galveston-Brazoria 2008 8-Hour Ozone Nonattainment Area; Texas | |
81 FR 66300 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978 | |
81 FR 66314 - U.S.-EU Communities of Research on Environmental, Health, and Safety Issues Related to Nanomaterials; Notice of Public Meetings | |
81 FR 66295 - Certain Portable Electronic Devices and Components Thereof; Commission Determination Not To Review the 100-Day Initial Determination Finding the Asserted Claims of U.S. Patent No. 6,928,433 Invalid Under 35 U.S.C. 101; Termination of Investigation | |
81 FR 66299 - NASA International Space Station Advisory Committee; Meeting | |
81 FR 66328 - Revision to a Previously Approved Information Collection (Veterans Benefits Administration (VBA) Voice of the Veteran Customer Satisfaction Continuous Measurement Survey) Activity: Comment Request | |
81 FR 66330 - Proposed Information Collection (State Cemetery Data Sheet and Cemetery Grant Document) | |
81 FR 66260 - Announcement of Requirements and Registration for National Institute of Standards and Technology Prize Competition-Federal Impact Assessment Challenge | |
81 FR 66266 - Vote Solar and Montana Environmental Information Center; Notice of Petition for Enforcement | |
81 FR 66268 - Mountain Valley Pipeline LLC, Equitrans LP; Notice of Availability of the Draft Environmental Impact Statement for the Proposed Mountain Valley Project and Equitrans Expansion Project | |
81 FR 66271 - Williamson, Belvin, Jr.; Notice of Filing | |
81 FR 66268 - Hastings, Michael W.; Notice of Filing | |
81 FR 66271 - Burke, John J., Jr.; Notice of Filing | |
81 FR 66267 - Columbia Gas Transmission, LLC; Notice of Application | |
81 FR 66275 - Notice of Designated Reserve Ratio for 2017 | |
81 FR 66289 - Receipt of Applications for Endangered Species Permits | |
81 FR 66244 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Atlantic Coastal Migratory Pelagic Fishery; Atlantic Dolphin and Wahoo Fishery; and South Atlantic Snapper-Grouper Fishery; Control Date | |
81 FR 66318 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Advance Notice of and No Objection to the Options Clearing Corporation's Proposal To Enter Into a New Credit Facility Agreement | |
81 FR 66315 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services | |
81 FR 66290 - Submission of Information Collections Under the Paperwork Reduction Act | |
81 FR 66254 - Notice of Request for Extension of a Currently Approved Information Collection | |
81 FR 66255 - Notice of Intent To Give Fourth Funding Priority to Loan Application Packages Received via an Intermediary Under the Certified Loan Application Packaging Process Within the Section 502 Direct Single Family Housing Program | |
81 FR 66245 - Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Amendment 16 | |
81 FR 66197 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; 2016-2018 Atlantic Bluefish Specifications; Correction | |
81 FR 66282 - Statement of Organization, Functions, and Delegations of Authority | |
81 FR 66284 - Statement of Organization, Functions, and Delegations of Authority | |
81 FR 66256 - Proposed Revised Information Collection; Comment Request; Limited Access Death Master File Subscriber Certification Form | |
81 FR 66294 - Steel Concrete Reinforcing Bar (Rebar) From Japan, Taiwan, and Turkey; Institution of Antidumping and Countervailing Duty Investigations and Scheduling of Preliminary Phase Investigations | |
81 FR 66277 - Depository Library Council to the Director; Meeting | |
81 FR 66181 - Schedules of Controlled Substances: Placement of Three Synthetic Phenethylamines Into Schedule I | |
81 FR 66224 - Schedules of Controlled Substances: Temporary Placement of Furanyl Fentanyl Into Schedule I | |
81 FR 66287 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 66286 - Agency Information Collection Activities; Proposed Collection; Public Comment Request | |
81 FR 66296 - Section 1201 Study: Request for Additional Comments | |
81 FR 66189 - Extension of Deadline for Action on the August 2016 Section 126 Petition From Delaware | |
81 FR 66180 - Modification of Colored Federal Airway B-1; Alaska | |
81 FR 66179 - Amendment of Class E Airspace; Tekamah, NE | |
81 FR 66221 - Proposed Amendment of Class E Airspace for the Following Ohio Towns; Findlay, OH; Ashland, OH; Celina, OH; Circleville, OH; Columbus, OH; Defiance, OH; Hamilton, OH; Lima, OH; and London, OH | |
81 FR 66301 - Establishment of Atomic Safety and Licensing Board; Tennessee Valley Authority | |
81 FR 66301 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations | |
81 FR 66293 - Notice of October 6, 2016, Meeting of the Chesapeake and Ohio Canal National Historical Park Commission | |
81 FR 66461 - Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Petitions | |
81 FR 66199 - Small Business Timber Set-Aside Program | |
81 FR 66331 - Promulgation of Air Quality Implementation Plans; State of Arkansas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan | |
81 FR 66185 - Sexual Assault Prevention and Response (SAPR) Program | |
81 FR 66423 - Sexual Assault Prevention and Response (SAPR) Program Procedures |
Forest Service
Rural Housing Service
Foreign-Trade Zones Board
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Substance Abuse and Mental Health Services Administration
Fish and Wildlife Service
National Indian Gaming Commission
National Park Service
Drug Enforcement Administration
Copyright Office, Library of Congress
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace extending upward from 700 feet above the surface at Tekamah Municipal Airport, Tekamah, NE. Controlled airspace is necessary to accommodate standard instrument approach procedures (SIAP) at Tekamah Municipal Airport for the safety and management of Instrument Flight Rules (IFR) operations at airport.
Effective 0901 UTC, January 5, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class E airspace at Tekamah Municipal Airport, Tekamah, NE.
On June 28, 2016, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Tekamah Municipal Airport, Tekamah, NE, with a segment extending from the 6.5-mile radius to 9.7 miles southeast of the airport. Airspace reconfiguration is necessary to accommodate the SIAPs at Tekamah Municipal Airport for compliance with FAA Joint Order 7400.2K, Procedures for Handling Airspace Matters. Controlled airspace is necessary for the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Tekamah Municipal Airport, NE.
(Lat 41°45′49″ N., long. 96°10′41″ W.)
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Tekamah Municipal Airport, and within 4 miles each side of the 154° bearing from the airport extending from the 6.5-mile radius of the airport to 9.7 miles southeast of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action renames Blue Federal airway B-1 in Alaska to B-12. This is necessary due to an automation issue that conflicts with an identically named airway in Taiwan. No air traffic services with be affected by this action.
Effective date 0901 UTC, January 5, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.11A and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the air traffic service route structure in the northwest United States to maintain the efficient flow of air traffic.
Recently, Anchorage Air Route Traffic Control Center (ARTCC) automation was rejecting certain flight plans. The FAA discovered that the rejected flight plans contained the airway in Taiwan, B-1. This number is also used to identify a route in southern Alaska. When Anchorage ARTCC automation tried to parse the route, it would attempt to reconcile the filed Taiwanese airway, B-1, with the fixes stored in the Anchorage database. The fixes would not match and the flight plan would fail the logic check and be rejected, resulting in labor-intensive manual coordination.
Colored Federal airways are published in paragraph 6009 of FAA Order 7400.11 dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Colored Federal airway listed in this document will be subsequently amended in the Order.
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is amending Title 14 of the Code of Federal Regulations (14 CFR) part 71 by removing Colored Federal airway B-1 and adding the identical Colored Federal airway B-12, effectively renaming it. This action does not affect any air traffic services. Therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act, and its agency implementing regulations in FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” regarding categorical exclusions for procedural actions at paragraph 5-6.5k, which categorically excludes from full environmental impact review actions that include, “Publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks.” Since this procedural action consists only of a name change from Blue Federal airway B-1 in Alaska to B-12 to de-conflict with an identically named airway in Taiwan, this name change action is not expected to cause any potentially significant environmental impacts. In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Woody Island, AK, NDB to Iliamna, AK, NDB.
Drug Enforcement Administration, Department of Justice.
Final rule.
With the issuance of this final rule, the Administrator of the Drug Enforcement Administration places three synthetic phenethylamines: 2-(4-iodo-2,5-dimethoxyphenyl)-
Effective: October 27, 2016.
Michael J. Lewis, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
The Drug Enforcement Administration (DEA) implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purposes of this action. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II.
The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring an adequate supply is available for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.
Under the CSA, each controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c), and the current list of all scheduled substances is published at 21 CFR part 1308.
Pursuant to 21 U.S.C. 811(a)(1), the Attorney General may, by rule, “add to such a schedule or transfer between such schedules any drug or other substance if he * * * finds that such drug or other substance has a potential for abuse, and * * * makes 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 * * *.” The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA, 28 CFR 0.100, who in turn has redelegated that authority to the Deputy Administrator of the DEA. 28 CFR part 0, appendix to subpart R.
The CSA provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the
On October 10, 2013, the DEA published a notice of intent to temporarily place 2-(4-iodo-2,5-dimethoxyphenyl)-
On August 12, 2015, the HHS provided the DEA with three scientific and medical evaluation documents prepared by the FDA entitled “Basis for the Recommendation to Place 2-(4-iodo-2,5-dimethoxyphenyl)-
After a review of the available data, including the scientific and medical evaluations and the scheduling recommendations from the HHS, the DEA published an NPRM entitled “Schedules of Controlled Substances: Placement of Three Synthetic Phenethylamines into Schedule I,” proposing to control 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe in schedule I of the CSA. 80 FR 70649, November 13, 2015. The proposed rule provided an opportunity for interested persons to file a request for hearing in accordance with DEA regulations on or before December 14, 2015. No requests for such a hearing were received by the DEA. The NPRM also provided an opportunity for interested persons to submit written comments on the proposal on or before December 14, 2015.
The DEA received no comments on the proposed rule to schedule 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe.
After consideration of the scientific and medical evaluations and accompanying recommendations of the HHS, and the DEA's consideration of its own eight-factor analyses, the DEA finds that these facts and all other relevant data constitute substantial evidence of potential for abuse of 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe. As such, the DEA is permanently scheduling 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe as controlled substances under the CSA.
The CSA establishes five schedules of controlled substances known as schedules I, II, III, IV, and V. The CSA also outlines the findings required to place a drug or other substance in any particular schedule. 21 U.S.C. 812(b). After consideration of the analysis and recommendation of the Assistant Secretary for HHS and review of all other available data, the Administrator of the DEA, pursuant to 21 U.S.C. 811(a) and 21 U.S.C. 812(b)(1), finds that:
(1) 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe have a high potential for abuse that is comparable to other schedule I substances such as 2C-I, 2C-C, 2C-B, LSD and DOM;
(2) 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe have no currently accepted medical use in treatment in the United States; and
(3) There is a lack of accepted safety for use of 25I-NBOMe, 25C-NBOMe, or 25B-NBOMe under medical supervision.
Based on these findings, the Administrator of the DEA concludes that 2-(4-iodo-2,5-dimethoxyphenyl)-
25I-NBOMe, 25C-NBOMe, or 25B-NBOMe are currently scheduled on a temporary basis in schedule I
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
In accordance with 21 U.S.C. 811(a), this scheduling action is subject to formal rulemaking procedures done “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 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 the distribution of power and responsibilities among the various levels of government.
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.
The Administrator, in accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-602, has reviewed this rule and by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities. On November 15, 2013, the DEA published a final order to temporarily place these three synthetic phenethylamines into schedule I of the CSA pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). 78 FR 68716. On November 13, 2015, the DEA published a final order extending the temporary placement of these substances in schedule I of the CSA for up to one year pursuant to 21 U.S.C. 811(h)(2). 80 FR 70658. The DEA estimates that all entities handling or planning to handle 25I-NBOMe, 25C-NBOMe, or 25B-NBOMe are currently registered to handle these substances. There are currently 18 registrations authorized to handle 25I-NBOMe, 25C-NBOMe, or 25B-NBOMe, as well as a number of registered analytical labs that are authorized to handle schedule I controlled substances generally. These 18 registrations represent 13 entities, of which 6 are small entities Therefore, the DEA estimates six small entities are affected by this rule.
A review of the 18 registrations indicates that all entities that currently handle 25I-NBOMe, 25C-NBOMe, or 25B-NBOMe handle other schedule I controlled substances, and have established and implemented (or currently maintain) the systems and processes required to handle 25I-NBOMe, 25C-NBOMe, or 25B-NBOMe.
On the basis of information contained in the “Regulatory Flexibility Act” section above, the DEA has determined and certifies pursuant to the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501
This action does not impose a new collection of information 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 final rule to both Houses of Congress and to the Comptroller General.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, 21 CFR part 1308 is amended to read as follows:
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
The additions read as follows:
(d) * * *
(55) 2-(4-iodo-2,5-dimethoxyphenyl)-
(56) 2-(4-chloro-2,5-dimethoxyphenyl)-
(57) 2-(4-bromo-2,5-dimethoxyphenyl)-
Department of State.
Final rule; correction; correcting amendments.
The Department of State published a final rule in the
This rule is effective on September 27, 2016.
Stephanie Traub, Office of Legal Affairs, Passport Services, (202) 485-6500. Hearing- or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1-800-877-8339.
The Department of State published a final rule on September 2, 2016 (81 FR 60608). This document corrects the final rule by changing “42 U.S.C. 16935a” to “22 U.S.C. 212b(c)(1)”, wherever it occurs; and by adding a paragraph to the
In the FR Doc 2016-21087, appearing on page 60608, in the
1. Remove “42 U.S.C. 16935a” and add in its place “22 U.S.C. 212b(c)(1)” in the following places:
a. On page 60608, in the second column, first paragraph, of the
b. On page 60608, in the third column, first full paragraph.
2. Add the following paragraph on page 60608, third column, after the first full paragraph and prior to “Regulatory Findings”:
Pursuant to 22 U.S.C. 212b(f), § 51.60(a)(4) and (g) shall not be applied until the Secretary of State, the Secretary of Homeland Security, and the Attorney General certify to Congress that the process they developed and reported to Congress has been successfully implemented. Updates regarding the implementation of these sections as well as § 51.60(a)(3) will be posted on
Passports.
Accordingly, for the reasons set forth in the preamble, 22 CFR part 51 is corrected by making the following correcting amendments:
8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 212b, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2714a, 2721, & 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 103-317, 108 Stat. 1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 1966-1970 Comp., p. 570; Pub. L. 114-119, 130 Stat. 15; Sec. 1 of Pub. L. 109-210, 120 Stat. 319; Sec. 2 of Pub. L. 109-167, 119 Stat.
Department of Defense.
Interim final rule; amendment.
This rule amends as a final rule published on April 5, 2013 to implement Department of Defense's SAPR Program. The Department seeks to establish a culture free of sexual assault through prevention, education and training, response capability, victim support, reporting procedures, and accountability to enhance the safety and well-being of all persons covered by this regulation.
This rule is effective September 27, 2016. Comments must be received by November 28, 2016.
You may submit comments, identified by docket number and/or RIN number and title, by any of the following methods:
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Diana Rangoussis, Senior Policy Advisor, Sexual Assault Prevention and Response Office (SAPRO), 571-372-2648.
This rule will be reported in future status updates as part of DoD's retrospective plan under Executive Order 13563 completed in August 2011. DoD's full plan can be accessed at:
The Department of Defense is publishing this rule as interim to maintain and enhance the current SAPR program which elucidates the prevention, response, and oversight of sexual assaults involving members of the U.S. Armed Forces and Reserve Component, to include the National Guard.
Until this interim final rule is published:
This rule amends a final rule published in the
• CMG Chair inquiries into incidents of retaliation involving the victim, witnesses, bystanders (who intervened), SARC, SAPR VA, or responders;
• Specialized training for all supervisors (officer, enlisted, civilian) that explain requirement to protect victim from retaliation, reprisal, ostracism, and maltreatment;
• What constitutes retaliation, reprisal, ostracism, and maltreatment;
• List of resources available for victims to report instances of retaliation, reprisal, ostracism, or maltreatment.
• Further policy mandates as stated in the Response System Panel's (RSP) recommendation #61 and subsection 1716 of National Defense Authorization Act Fiscal Year 2014 include the establishment of the requirement that service member victims of sexual assault be informed of the availability of legal assistance and the right to consult with a Special Victim's Counsel (SVC) and Victims' Legal Counsel (VLC). The RSP was a Congressionally mandated independent review body established to review the progress of sexual assault initiatives within the Department of Defense.
Additional changes from the April 2013 rule include:
• Requirement to prescribe training and certification protocol for sexual assault medical forensic examiners in accordance with section 1725 of NDAA FY14.
• Requirement to notify sexual assault victims to answer “no” to Question 21 on Standard Form 86, if consultation with health care professional meets outlined criteria per section 1747 of NDAA FY14.
• Establishment of a confidential process by which a sexual assault victim may challenge the terms or the characterization of their discharge on the grounds that the terms or characterization were adversely affected by being a sexual assault victim per section 547 of NDAA FY15.
• Requiring the installation SARC and the installation Family Advocacy Program (FAP) staff to coordinate when a sexual assault occurs as a result of domestic abuse or domestic violence or involves child abuse.
• Providing SAPR policy guidance and procedures for the National Guard through direction of the Chief, National Guard Board (NGB).
• Establishing the Expedited Transfer (E.T.) program for service member victims of sexual assault.
The SAPR program authorities are based on the following:
• 10 U.S.C. 136 and DoD Directive 5124.02 (available at
• 10 U.S.C. 113 which states:
• Public Law 112-81, National Defense Authorization Act for Fiscal Year 2012 which:
• Public Law 113-66, National Defense Authorization Act for Fiscal Year 2014 which requires:
• Public Law 114-92, National Defense Authorization Act for Fiscal Year 2016 which:
The Fiscal Year 2015 Operation and Maintenance funding for DoD SAPRO was $24.3 million. There is an additional Congressional allocation of $25.0 million designated for the Special Victims' Counsel program and the Special Victims' Investigation and Prosecution capability reprogrammed to the Military Services and the National Guard Bureau. Additionally, each of the Military Services establishes its own SAPR budget for the programmatic costs arising from the implementation of the training, prevention, reporting, response, and oversight requirements established by this rule.
The benefits of these amendments are the following:
• Preempts state and local laws requiring disclosure of personally identifiable information of the service member (or adult military dependent) victim or alleged perpetrator to state or local law enforcement agencies, unless such reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of an individual, as determined by an authorized Department of Defense official.
• Protects victims of sexual assault from coercion, retaliation, and reprisal in accordance with DoD Directive 7050.06, “Military Whistleblower Protection” (available at
• Requires notification to victims of their right to speak to an SVC before providing a statement to a Military Criminal Investigative Office (MCIO) or trial counsel interview.
• Insures victims are aware of their rights related to speaking with defense counsel by requiring counsel to request the interview through the SVC, or other counsel for the victim as the victim choses.
• Expands access to SVC to DoD Civilians thus affording them the same legal counseling given to service members.
• Eliminates the five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes.
• Requires all forms related to the reporting and forensic examination to be retained for 50 years to insure victims access to historical documentation.
• Includes consultation and assisting victims with complaints against the government, FOIA requests, and correspondence or communications with Congress as discussed in DoD Directive 7050.06
• Requires evidence to be retained for 5 years, or until the completion of related proceedings to allow victims the opportunity to proceed forward in the investigative process at their own pace.
• Elevates oversight to senior leadership by an 8-day incident reporting requirement in response to Unrestricted Report of sexual assault when victim is a military member.
• Tracks a commanding officer's compliance in conducting organizational climate assessments for purposes of preventing and responding to sexual assaults with all assessments to be completed within 120 days of taking command and annually thereafter.
• Requires review of information on sex-related offenses in personnel service records of members of the Armed Forces (for members who were not “convicted” but received disciplinary action for sexual assault-related act). This will assist in insuring the proper assignment of individuals in those “positions of special trust and responsibilities” within the military.
• Authorizes members of the Reserve Component to be represented by a Special Victims' Counsel, even when the member is not authorized to receive legal assistance, if the member is the victim of an alleged sex-related offense with a nexus to the member's military service.
It has been determined that this rule is not an economically significant regulatory action.
The rule does not:
1. Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities.
2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency.
3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof.
However, it has been determined that 32 CFR part 103 does raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.
It has been determined that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified 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. This rule provides SAPR Program guidance only.
It has been determined that this rule does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. OMB has approved these requirements under OMB Control Number 0704-0482 “Defense Sexual Assault Incident Database. The System of Records Notice for DHRA 06, Defense Sexual Assault Incident Database is available at
It has been certified that this rule does have federalism implications, as set forth in Executive Order 13132. This rule does have substantial direct effects on:
1. The States;
2. The relationship between the National Government and the States; or
3. The distribution of power and responsibilities among the various levels of Government.
Crime, Health, Military personnel, Reporting and recordkeeping requirements.
Accordingly, 32 CFR part 103 is amended to read as follows:
10 U.S.C. 113; secs. 541 and 542, Pub. L. 112-81, 125 Stat. 1298; secs. 1705, 1713, 1723, and 1743, Pub. L. 113-66, 127 Stat. 672; and sec. 536, Pub. L. 114-92, 129 Stat. 817.
The revisions and additions read as follows:
(a) * * *
(14) “Department of Defense 2014-2016 Sexual Assault Prevention Strategy,” April 30, 2014.
(18) Public Law 113-66, “The National Defense Authorization Act for Fiscal Year 2014,” December 2013;
(19) Public Law 110-417, “The Duncan Hunter National Defense Authorization Act for Fiscal Year 2009,” October 14, 2008;
(20) DoD Instruction 5545.02, “DoD Policy for Congressional Authorization and Appropriations Reporting Requirement,” December 19, 2008;
(21) Title 32, United States Code;
(22) Public Law 112-81, “National Defense Authorization Act for Fiscal Year 2012,” December 31, 2011; and
(23) Public Law 114-92, “National Defense Authorization Act for Fiscal Year 2016”, November 25, 2015.
The revision and addition read as follows:
(c) Military dependents 18 years of age and older who are eligible for treatment in the military healthcare system, at installations in the continental United States and outside of the continental United States (OCONUS), and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner.
(f) Does not apply to victims of sexual assault perpetrated by a spouse or intimate partner, or military dependents under the age of 18 who are sexually assaulted. The Family Advocacy Program (FAP), as described in DoDI 6400.06, provides the full range of services to victims of domestic abuse or domestic violence, and to military dependents under the age of 18 who are sexually assaulted.
The revisions and additions read as follows:
(1) Licensed physicians practicing in the military healthcare system (MHS) with clinical privileges in obstetrics and gynecology, emergency medicine, family practice, internal medicine, pediatrics, urology, general medical officer, undersea medical officer, flight surgeon, psychiatrists, or those having clinical privileges to perform pelvic examinations or treat mental health conditions.
(2) Licensed advanced practice registered nurses practicing in the MHS with clinical privileges in adult health, family health, midwifery, women's health, mental health, or those having clinical privileges to perform pelvic examinations.
(3) Licensed physician assistants practicing in the MHS with clinical privileges in adult, family, women's health, or those having clinical privileges to perform pelvic examinations.
(4) Licensed registered nurses practicing in the MHS who meet the requirements for performing a SAFE as determined by the local privileging authority. This additional capability shall be noted as a competency, not as a credential or privilege.
(5) A psychologist, social worker or psychotherapist licensed and privileged to provide mental health care or other counseling services in a DoD or DoD-sponsored facility.
The revisions and additions read as follows:
(k) * * *
(2) * * *
(v) * * * Improper disclosure of confidential communications protected under Restricted Reporting, improper release of healthcare information, and other violations of this policy or other laws and regulations are prohibited and may result in discipline pursuant to the UCMJ, or other adverse personnel or administrative actions.
(n) Victims must be informed of the availability of legal assistance and the right to consult with a Special Victims' Counsel (SVC)/Victims' Legal Counsel (VLC) in accordance with section 1716 of the National Defense Authorization Act for Fiscal Year 2014 (Pub. L. 113-66).
The revisions and additions read as follows:
(a) * * *
(6) Oversee the DoD Sexual Assault Prevention and Response Office (SAPRO). Serving as the DoD single point of authority, accountability, and oversight for the SAPR program, SAPRO provides recommendations to the USD(P&R) on the issue of DoD sexual assault policy matters on prevention, response, and oversight. The SAPRO Director will be appointed from among general or flag officers of the Military Services or DoD employees in a comparable Senior Executive Service position in accordance with Public Law 112-81 . The SAPRO Director is responsible for:
(vi) Overseeing development of strategic program guidance and joint planning objectives for resources in support of the SAPR Program, and making recommendations on modifications to policy, law, and regulations needed to ensure the continuing availability of such resources (Pub. L. 113-66).
(f) * * *
(5) Align Service prevention strategies with the DoD Sexual Assault Prevention Strategy.
(12) Submit required data to DSAID. Require confirmation that a multi-disciplinary case management group (CMG) tracks each open Unrestricted Report, is chaired by the installation commander (or the deputy installation commander), and that CMG meetings are held monthly for reviewing all Unrestricted Reports of sexual assaults in accordance with DoD Instruction 6495.02.
(17) Require the installation SARC and the installation FAP staff to coordinate together when a sexual assault occurs as a result of domestic abuse or domestic violence or involves child abuse to ensure the victim is directed to FAP.
(g) On behalf and with the approval of the Secretaries of the Army and Air Force, and in coordination with DoD SAPRO and the State Adjutants General, the Chief, NGB establishes and implements SAPR policy and procedures for National Guard members on duty pursuant to Title 32, U.S.C.
(i) * * *
(12) Establish guidance for when an Expedited Transfer has been requested in accordance with DoD Instruction 6495.02.
Environmental Protection Agency (EPA).
Final rule.
In this action, the Environmental Protection Agency (EPA) is determining that 60 days is insufficient time to complete the technical and other analyses and public notice-and-comment process required for our review of a petition submitted by the state of Delaware pursuant to section 126 of the Clean Air Act (CAA). The petition requests that the EPA make a finding that Harrison Power Station, located near Haywood, Harrison County, West Virginia, emits air pollution that significantly contributes to nonattainment and interferes with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in the state of Delaware. Under section 307(d)(10) of CAA, the EPA is authorized to grant a time extension for responding to a petition if the EPA determines that the extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the section 307(d) notice-and-comment rulemaking requirements. By this action, the EPA is making that determination. The EPA is therefore extending the deadline for acting on the petition to no later than April 7, 2017.
This final rule is effective on September 27, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0509. All documents in the docket are listed on the
Ms. Gobeail McKinley, Office of Air Quality Planning and Standards (C504-04), U.S. EPA, Research Triangle Park, North Carolina 27709, telephone number (919) 541-5246, email:
This is a procedural action to extend the deadline for the EPA to respond to a petition from the state of Delaware filed pursuant to CAA section 126(b). The EPA received the petition on August 8, 2016. The petition requests that the EPA make a finding under section 126(b) of the CAA that the Harrison Power Station, located near Haywood, Harrison County, West Virginia, is operating in a manner that emits air pollutants in violation of the provisions of section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2008 and 2015 ozone NAAQS.
Section 126(b) of the CAA authorizes states to petition the EPA to find that a major source or group of stationary sources in upwind states emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i)
Pursuant to CAA section 126(b), the EPA must make the finding requested in the petition, or must deny the petition within 60 days of its receipt. Under CAA section 126(c), any existing sources for which the EPA makes the requested finding must cease operations within 3 months of the finding, except that the source may continue to operate if it complies with emission limitations and compliance schedules (containing increments of progress) that the EPA may provide to bring about compliance with the applicable requirements as expeditiously as practical but no later than 3 years from the date of the finding.
CAA section 126(b) further provides that the EPA must hold a public hearing on the petition. The EPA's action under section 126 is also subject to the procedural requirements of CAA section 307(d).
In addition, CAA section 307(d)(10) provides for a time extension, under certain circumstances, for a rulemaking subject to CAA section 307(d). Specifically, CAA section 307(d)(10) provides:
Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the subsection.
CAA section 307(d)(10) may be applied to section 126 rulemakings because the 60-day time limit under CAA section 126(b) necessarily limits the period for promulgation of a final rule after proposal to less than 6 months.
In accordance with CAA section 307(d)(10), the EPA is determining that the 60-day period afforded by CAA section 126(b) for responding to the petition from the state of Delaware is not adequate to allow the public and the agency the opportunity to carry out the purposes of CAA section 307(d). Specifically, the 60-day period is insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether the Harrison Power Plant identified in the CAA section 126 petition contributes significantly to nonattainment or interferes with maintenance of the 2008 ozone NAAQS or the 2015 ozone NAAQS in Delaware. Moreover, the 60-day period is insufficient for the EPA to review and develop response to any public comments on a proposed finding, or testimony supplied at a public hearing, and to develop and promulgate a final finding in response to the petition. The EPA is in the process of determining an appropriate schedule for action on the CAA section 126 petition. This schedule must afford the EPA adequate time to prepare a proposal that clearly elucidates the issues to facilitate public comment, and must provide adequate time for the public to comment and for the EPA to review and develop responses to those comments prior to issuing the final rule. As a result of this extension, the deadline for the EPA to act on the petition is April 7, 2017.
This document is a final agency action, but may not be subject to the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The EPA believes that, because of the limited time provided to make a determination, the deadline for action on the CAA section 126 petition should be extended. Congress may not have intended such a determination to be subject to notice-and-comment rulemaking. However, to the extent that this determination otherwise would require notice and opportunity for public comment, there is good cause within the meaning of 5 U.S.C. 553(b)(3)(B) not to apply those requirements here. Providing for notice and comment would be impracticable because of the limited time provided for making this determination, and would be contrary to the public interest because it would divert agency resources from the substantive review of the CAA section 126 petition.
This action is effective on September 27, 2016. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days after the date of publication in the
This action is exempt from review by the Office of Management and Budget because it simply extends the date for the EPA to take action on a petition.
This action does not impose an information collection burden under the PRA. This good cause final action simply extends the date for the EPA to take action on a petition and does not impose any new obligations or enforceable duties on any state, local or tribal governments or the private sector. It does not contain any recordkeeping or reporting requirements.
This action is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements because the agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).
This action does not contain any unfunded mandate of $100 million or more 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 good cause final action simply extends the date for the EPA to take action on a petition. Thus, Executive Order 13175 does not apply to this rule.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This good cause final action simply extends the date for the EPA to take action on a petition and does not have any impact on human health or the environment.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice-and-comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Section II.B of this document, including the basis for that finding.
The statutory authority for this action is provided by sections 110, 126 and 307 of the CAA as amended (42 U.S.C. 7410, 7426 and 7607).
Under section 307(b)(1) of the CAA, judicial review of this final rule is available only by the filing of a petition for review in the U.S. Court of Appeals for the appropriate circuit by November 28, 2016. Under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.
Environmental protection, Administrative practices and procedures, Air pollution control, Electric utilities, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone.
Substance Abuse and Mental Health Services Administration (SAMHSA), HHS.
Final rule.
This final rule outlines annual reporting requirements for practitioners who are authorized to treat up to 275 patients with covered medications in an office-based setting. This final rule will require practitioners to provide information on their annual caseload of patients by month, the number of patients provided behavioral health services and referred to behavioral health services, and the features of the practitioner's diversion control plan. These reporting requirements will help the Department of Health and Human Services (HHS) ensure compliance with the requirements of the final rule, “Medication Assisted Treatment for Opioid Use Disorders,” published in the
Jinhee Lee, Pharm.D., Public Health Advisor, Center for Substance Abuse Treatment, 240-276-2700
This
On July 8, 2016, HHS issued a final rule entitled “Medication Assisted Treatment for Opioid Use Disorders” in the
On March 30, 2016, HHS issued a Notice of Proposed Rulemaking, “Medication Assisted Treatment for Opioid Use Disorders.” On July 8, 2016, HHS issued a final rule which finalized the regulation with the exception of sections relating to the requirement to provide reports to SAMHSA (§ 8.630(b)) and the reporting requirements (§ 8.635). Also on July 8, 2016, HHS published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the
The comment period for the SNPRM ended on August 8, 2016. HHS received 37 comments electronically and nine additional comments from a public listening session which was held on August 2, 2016. Additionally, HHS received 27 comments about the reporting requirements during the comment period for the Medication Assisted Treatment Notice for Proposed Rulemaking (NPRM) issued in March 2016. Comments primarily came from individuals who currently prescribe covered medications and national organizations representing practitioners and public health agencies. HHS also received several comments during conversations with the Department of Defense and the Department of Veterans Affairs and incorporated this feedback into this final rule.
This final rule adopts the same basic structure and framework as the supplemental proposed rule. Subpart F, Section 8.635 describes what the reporting requirements are for practitioners whose Request for Patient Limit Increase application is approved.
HHS has made some changes to the proposed reporting requirements based on the comments we received with respect to the SNPRM. HHS has also updated Section 8.630 by adding the requirement proposed in the NPRM that practitioners need to provide reports to SAMHSA as specified in Section 8.635 to maintain their approval to treat up to 275 patients.
HHS has responded to the comments received in response to the March 2016 NPRM and this SNPRM, and provided an explanation of each of the changes made to the proposed rule in the preamble.
HHS received numerous comments providing support for the proposed reporting requirements. Commenters stated that the requirements would be particularly valuable in minimizing diversion and improving access to and quality of care. However, other commenters expressed concerns that the reporting requirements were too burdensome and would limit the number of practitioners who apply for the increased patient limit, particularly for individual practitioners or small group practices. Others expressed that the reporting requirements should be consistent for all practitioners prescribing buprenorphine for MAT. Some commenters also stated that there was no evidence that the reporting requirements would improve the quality of patient care or minimize misuse or diversion. Other commenters noted that other areas of medicine do not have reporting requirements.
HHS has modified the reporting requirements in response to the comments. Given the importance of ensuring practitioners comply with the Medication Assisted Treatment for Opioid Disorders requirements while minimizing their reporting burden, we believe that the updated reporting requirements as outlined in § 8.635 and further specified in report form instructions to be issued after finalization of this rule, strike the appropriate balance. Additional detail regarding these reporting requirements will be provided in the practitioner reporting form which will be available for public comment shortly after finalization of this rule.
HHS also received a variety of comments related to the issue of MAT that did not specifically relate to the SNPRM but generally fell into five main categories. The categories and comments are described below.
HHS received several comments regarding the final rule, “Medication Assisted Treatment for Opioid Use Disorders,” published in the
HHS received several comments pertaining to access to buprenorphine. One comment expressed concerns about the impact of workforce shortages on access, and another commenter stated that clinical pharmacists should be allowed to prescribe buprenorphine, which would increase access. An additional commenter recommended that HHS work with stakeholders to explore mechanisms to address systemic barriers.
An additional commenter recommended that HHS collect the following baseline data points: Total number of patients admitted that year, total number of patients carried over from the previous year, and total number of patients discharged.
For the reasons set forth in the proposed rule and considering the comments received, HHS replaced this reporting requirement with one that asks the practitioner to report annual caseload of patients by month.
Commenters provided several suggestions for alternative reporting requirements about psychosocial and case management services. One commenter suggested that practitioners be required to report the percentage of patients who had one hour of counseling in the past month. Another commenter recommended that the reporting requirement be divided into two separate measures: “(1) The number referred to psychosocial or case management services, and (2) the number who actually received psychosocial or case management services.” An additional commenter recommended that the proposed reporting requirement be replaced with the following two questions: “(1) The percentage of patients receiving psychosocial counseling and/or other appropriate support services; and (2) The percentage of patients receiving case management services.” Another commenter recommended that the proposed reporting requirement be replaced with: “(1) The number of patients who were provided psychosocial or case management services at the same location as the practitioner, and how frequently those patients utilized the services; and (2) the number of patients the practitioner referred for psychosocial or case management services at a different location.” An additional commenter recommended that practitioners be required to report on the number of patients who were provided counseling services at the same location as the practitioner and how frequently those patients utilized the counseling services. One commenter also recommended that practitioners be required to provide information on the frequency, location, and type of psychosocial services provided. Another commenter recommended that practitioners be required to report whether the referral was to a more intensive or less intensive level of care.
For the reasons set forth in the proposed rule and considering the comments received, HHS replaced the second reporting requirement with one that requires the practitioner to report on the number of patients provided behavioral health services and referred to behavioral health services.
Another commenter stated that practitioners receive alerts from local pharmacies and the State if a patient receiving buprenorphine attempts to fill another opioid prescription by any practitioner, and asked whether this information could be used as a response for this reporting requirement. The commenter noted that they do not routinely run PDMP data on patients receiving buprenorphine, but do query PDMP data for every controlled substance refilled by phone.
HHS also received several comments focused more broadly on diversion control. One commenter recommended that SAMHSA provide guidelines for practitioners to develop diversion control plans. Another commenter suggested that HHS require practitioners with a waiver under DATA 2000 to participate in PDMPs. Several commenters also recommended that HHS ask about the number of patients who received urine drug screens, the results of drug screens, and the number of patients who received call-backs for pill counts. Several commenters noted that not every practitioner has access to a PDMP and encouraged HHS to use language that would apply in those situations. Finally, one commenter recommended that HHS ask about PDMP use and drug-use monitoring screening tests using a six-point Likert scale.
For the reasons set forth in the proposed rule and considering the comments received, HHS modified the third reporting requirement to require the practitioner to report on the features of his or her diversion control plan.
Other commenters recommended alternative questions to ask for this proposed reporting requirement, including: The percentage of patients who are prescribed an average dose of 16 mg or less; the percentage of patients who left treatment because the practitioner terminated treatment due to non-compliance; patient mortality rates; the number of patients who left treatment because of the financial cost of treatment; and the number of patients who left treatment to receive treatment in an either higher or lower intensity setting or were deemed successful.
Another commenter stated that the data collected in this reporting requirement should not include those lost to follow-up or relapse. Finally, an additional commenter stated that some patients at the commenter's facility graduate from treatment and only use counselors as needed. The commenter stressed that these patients should not be counted as patients not receiving treatment.
Other commenters recommended HHS collect data on: The amount of buprenorphine that patients receive; the number of times they receive buprenorphine; the number of active patients for whom third party reimbursement was provided; patient mortality rates; frequency of patient visits; and the percentage of
The SNPRM called for new collections of information under the Paperwork Reduction Act of 1995. The final rule calls for much of the same collections of information as the SNPRM. As defined in implementing regulations, “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. In this section, HHS first identifies and describes the types of information waivered practitioners must collect and report and then HHS provides an estimate of the total annual burden. The estimate covers the employees' time for reviewing and posting the collections required.
Annual burden estimates for these requirements are summarized in the following table:
HHS has examined the impact of this final rule under Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act of 1980 (Pub. L. 96-354, September 19, 1980), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995), and Executive Order 13132 on Federalism (August 4, 1999). HHS has determined that this final rule is not a significant regulatory action as defined by Executive Order 12866, and will not have a significant economic impact on a substantial number of small entities. Although the reporting requirements
Under this final rule practitioners approved to treat up to 275 patients will have to submit information about their practice annually to SAMHSA for purposes of monitoring regulatory compliance. The goal of the reporting requirement is to ensure that practitioners are providing buprenorphine treatment in compliance with the final rule Medication Assisted Treatment for Opioid Use Disorders (81 FR 44711). It is anticipated that the data for the reporting requirement can be pulled directly from an electronic or paper health record, and that practitioners will not have to update their record-keeping practices after receiving approval to treat up to 275 patients. We estimate that compiling and submitting the report would require approximately 1 hour of physician time and 2 hours of administrative time. According to the U.S. Bureau of Labor Statistics, the average medical and health services manager's hourly pay in 2014 was $49.84, and the average hourly wage for a physician was $93.74. After adjusting upward by 100 percent to account for overhead and benefits, these wages correspond to a cost of $99.68 and $187.48 per hour, respectively. The cost of this reporting requirement per practitioner approved for the 275-patient limit is estimated to be the cost of 1 hour of a practitioner's time plus 2 hours of an administrator's time.
As noted above, using the mid-point estimate, we estimate that 1,150 practitioners will request approval for the 275-patient limit in year 1 and 200 practitioners will request a 275-patient waiver in subsequent years. We assume that all of these requests will be approved. The costs associated with this reporting requirement are reported below. In addition, it is estimated that SAMHSA will incur a cost of $100 per practitioner approved for the 275-patient limit to process the practitioner data reporting requirement. These costs are reported below as well.
We assume DEA will not incur additional costs in association with this final rule as DEA will incorporate site visits for practitioners with the 275-patient limit into their regular site visit schedule.
Health professions, Methadone, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HHS amends 42 CFR part 8 as follows:
21 U.S.C. 823; 42 U.S.C. 257a, 290bb-2a, 290aa(d), 290dd-2, 300x-23, 300x-27(a), 300y-11.
(b) All practitioners whose Request for Patient Limit Increase has been approved under § 8.625 must provide reports to SAMHSA as specified in § 8.635.
(a)
(b)
(c)
(1) The annual caseload of patients by month.
(2) Numbers of patients provided behavioral health services and referred to behavioral health services.
(3) Features of the practitioner's diversion control plan.
(d)
(e)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correction.
This action corrects the recreational harvest limit value published in the 2016-2018 Atlantic bluefish specifications final rule, which is effective August 1, 2016, through December 31, 2018. This action is necessary and intended to ensure the correct 2016-2018 bluefish recreational harvest limit values are provided to the public.
This correction is effective September 27, 2016.
Information on the August 4, 2016, final rule (81 FR 51370), which includes an Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications, are available via the Internet at
Reid Lichwell, Fishery Management Specialist, (978) 281-9112.
The August 4, 2016, final rule (81 FR 51370) set catch limit specifications (
The Assistant Administrator (AA) for Fisheries, NOAA, finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and would be contrary to the public interest. This correcting amendment implements regulations as recommended by the Council and as described in the preambles to the harvest specification and management measures proposed rule (81 FR 18559, March 31, 2016) and final rule (81 FR 51370, August 4, 2016). The derivation process was correctly described in the proposed and final rules; however, the recreational harvest limit (RHL) was inadvertently published incorrectly at page 51371 of the final rule in “Table 1, Final 2016-1018 Bluefish Specifications.” There would be no value in soliciting further comment on the corrected value in this rule, as the public has already had opportunity to review and comment on the process used to derive the RHL. It would be contrary to the public interest to delay implementation of the correction in this rule, because it will cause public confusion. For the reasons above, the AA also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness and makes this rule effective immediately upon publication.
The August 4, 2016, final rule outlined the calculations for the final specifications in a table, but one line of the table was inadvertently incorrectly updated when the most up to date recreational landings data for 2015 became available during the final processing stage of the rule. The table titled “Final 2016-2018 Bluefish Specifications”, as published on page 51371 of the final rule incorrectly indicated in the last row that the recreational harvest limit (RHL) was 13,158,843 lb (1,500 mt) for 2016; 14,143,295 lb (6,414 mt) for 2017; and 15,116,768 lb (6,857 mt) for 2018. The corrected RHL for all three years is 11,581,548 lb (5,253 mt).
On page 51371 of the August 4, 2016, final rule (81 FR 51370), table 1 is corrected to read as follows:
16 U.S.C. 1801
Office of General Counsel, U.S. Department of Energy.
Extension of public comment period.
On August 3, 2016, the Department of Energy (DOE) issued in the
The comment period for the document published in the proposed rule section on August 3, 2016 (81 FR 51140) is extended. DOE will accept comments on the proposed information collection received no later than November 7, 2016.
Interested persons may submit comments on the proposed information collection identified by docket number DOE-HQ-2014-0021 and/or regulatory information number (RIN) 1990-AA39. Comments may be submitted using any of the following methods:
1.
2.
3.
Sophia Angelini, Attorney-Adviser, Office of General Counsel for Civilian Nuclear Programs, GC-72, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; Telephone (202) 586-0319.
On December 17, 2014, DOE published a notice of proposed rulemaking (NOPR) in the
U.S. Small Business Administration.
Proposed rule.
The U.S. Small Business Administration (SBA or Agency) seeks comments on a proposed amendment to its regulations governing the small business timber set-aside program (hereafter referred to as the “timber program”) so that appraisals on small business set-aside sales be made to the nearest small business mill. Timber sale appraisals are performed for small business qualifying set-aside and non-set-aside sales. When the U.S. Department of Agriculture's (USDA) Forest Service (FS) offers timber for sale, it appraises its potential market value and sets the minimum bid that it will accept based on that appraisal. Currently, appraisals in small business set-aside timber sales take into account the haul costs to the nearest mill regardless of that mill's size. Since set-aside timber sales require the use of small business mills, SBA proposes that the appraisal on set-aside timber sales
Comments must be received on or before November 28, 2016.
You may submit comments, identified by RIN: 3245-AG69, by any of the following methods:
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SBA will post all comments on
Brenda J. Fernandez, Procurement Analyst, U.S. Small Business Administration, Office of Policy, Planning and Liaison, 409 Third Street SW., 8th Floor, Washington, DC 20416; (202) 205-7337;
In cooperation with SBA, the FS manages the timber program. The timber program was designed for small businesses whose product needs are timber. Throughout the country, the FS offers timber sales that are composed of multi-products for which the purchaser pays different rates for each product. Multi-product sales may be composed of sawlogs, pulp logs, biomass, or other products not generally processed into sawlogs. Timber sales that have substantial sawlog volume are targeted for the set-aside program. Small independent loggers, often called gypos, are identified as small non-manufacturers, and are eligible to purchase the set-aside timber sale and have to adhere to the contract rules of where the timber can be milled. The volume purchased by these non-manufacturers is credited, under the set-aside program, to the small business market share.
Section 15(a) of the Small Business Act authorizes small businesses to receive any contract which would “assur[e] that a fair proportion of the total purchases and contracts for property and services for the Government in each industry category are placed with small-business concerns” and which would “assur[e] that a fair proportion of the total sales of Government property be made to small-business concerns.” 15 U.S.C. 644(a). Contracts for the sale of government owned timber are, therefore, required to be set aside for small businesses in order to assure that small businesses receive a fair proportion of such sales. While the Small Business Act does not define “fair proportion,” SBA interpreted “fair proportion” in adopting the market share system used today and detailed below. The D.C. District Court upheld this interpretation in 1974 in
Congress further decreed in section 2 of the Small Business Act that the “economic well-being [and] security of this Nation . . . cannot be realized unless the actual and potential capacity of small business is encouraged and developed.” 15 U.S.C. 631. To that end, Congress directed all ends of the Government to “maintain and strengthen the overall economy of the Nation” by assuring that small businesses receive a fair proportion of total government contracts and total government sales. Through sections 2 and 15 of the Small Business Act, SBA is entrusted with keeping Federal government agencies accountable on their collective obligation to deliver a fair proportion of contracts and sales to small businesses. SBA's regulations, however, currently do not address how SBA calculates “fair proportion” in the context of government-owned timber sales. SBA's regulations also do not address how goods-for-services stewardship timber sales should be treated in the context of the small business fair proportion or market share calculation.
SBA proposes to amend its regulations to include instructions on how hauling costs are to be estimated in developing the appraised price for small business set-aside sales under the timber program. SBA's current regulations provide that on a set-aside sale the small business may not resell more than 30% of the advertised sawtimber volume to a large business concern in all FS regions outside of Alaska. As such, at least 70% of the advertised sawtimber volume must be processed at a small mill. This provision is known as the “30/70 rule.” When the FS offers a timber program sale as a set-aside, it appraises its potential market value and sets the minimum bid that it will accept based on that appraisal. One factor in the appraisal is the haul cost that the purchaser (small or large) will have to absorb to bring the timber to a manufacturing facility. Currently, appraisals are made to the nearest mill regardless of that mill's size. Because of the locations and sparse number of remaining small sawmills, the current appraisal points used for calculating hauling costs may have prevented small mills from bidding on set-aside sales, since fuel and non-fuel costs for transporting the timber from the forest to the processing location may negate the bidder's profit margin of the purchase when the 30/70 rule is also applied.
In order to provide small businesses an ability to meet the requirements of the law as required under set-aside provisions, and to encourage small business competition, SBA is proposing that small business set-aside timber sales be appraised to the nearest small business mill to accurately reflect the haul costs to eligible bidders. As an alternative, SBA is also requesting comments on whether the requirement to appraise the set-aside timber sales to the nearest small mill should have some reasonable distance or haul cost limitation, such as 60 miles (from the sale area to the nearest mill), because it may not be economically feasible to haul timber over large distances. In addition, SBA is also requesting comments on whether all 100% of the hauling costs should be appraised to the nearest small business mill, or, when the nearest mill is a large business, whether 70% of the hauling costs should be appraised to the nearest small mill and remaining 30% appraised to the nearest large mill in accordance
The proposed regulatory amendment would affect the FS timber program only. As noted below, FS and the Department of Interior's (DOI) Bureau of Land Management (BLM) are the primary timber “sales agencies.” However, BLM's small business set-aside sales, which are limited to eight markets in Oregon (FS Region 6), are made in accordance with the terms of a separate Memorandum of Understanding (MOU) between SBA and BLM. Rather than setting forth considerations for small business market share computation methods, SBA's MOU with BLM affords SBA the opportunity to review BLM's annual timber sale plans prior to publication and to request set-aside sales under the authority of the Small Business Act. When BLM agrees to set-aside certain timber sales for small businesses, BLM consults with SBA concerning financial and other performance qualifications to be included in the conditions of sale. Accordingly, the proposed amendment to the timber program would have no impact on BLM's timber sale program since BLM's current policy is to appraise the hauling costs on its set-aside sales to the closest mill that qualifies as a small business under SBA's regulations. While SBA is also considering an amendment stewardship contracting to include the stewardship sawtimber volume in the small business market share calculation, this possible policy change would not impact BLM's use of stewardship sales since BLM already credits/counts the stewardship sawtimber volume in administering its set-aside program.
SBA invites comments on all aspects of this proposed rule, the timber program, and other policy changes currently under consideration. In particular, SBA requests comments on the proposed change to appraising the haul costs to the small business set-aside sales and the alternative weighted approach to appraising the haul costs using the 30/70 rule. SBA is also interested in comments on whether there should be a reasonableness test for distance from the sale area to the nearest qualifying small business mill and how this test should be applied. In addition, SBA invites comments on impacts of the potential inclusion of the stewardship sawtimber volume in the small business “fair proportion” calculation that SBA is currently considering but not proposing in this rule.
The federal government regularly sells timber and non-timber products from the federal forests managed by the USDA's FS, the DOI's BLM, the DOI's Fish and Wildlife Service, the U.S. Department of Defense, the U.S. Department of Energy, and the Tennessee Valley Authority. Collectively, these agencies are referred to as the “sales agencies” with FS and BLM being the primary sales agencies.
This proposed rule intends to amend SBA's regulations governing the timber program. As mandated by the Small Business Act, SBA and the sales agencies jointly set-aside timber program sales for exclusive bidding by small business concerns when market conditions demonstrate that small businesses are not receiving their fair share of timber volume under full-and-open competition or unrestricted sales. When the small business share of the timber market falls below a certain level, a small business set-aside sale is triggered.
In order to determine the small business market share that triggers a set-aside sale, FS calculates the current small business market share based on small business purchases of sawtimber volume sold under the timber program over a five-year period. This percentage, based upon historical purchases of sawtimber in the market area, sets the framework for what constitutes small businesses' fair proportion of the total sales volume. If at any time, the small business market share falls below this percentage, subsequent timber program sales would be set-aside for preferential bidding by small businesses. Set-aside sales in the timber program will continue until such time that the small business market share rises above the triggering percentage.
Currently, only the advertised sawtimber volume sold under the timber program is used to calculate the small business market share, which establishes whether or not a timber sale should be set-aside for preferential bidding by small business. Sawtimber volume sold under stewardship contracting is not presently considered in this calculation. SBA is considering a change to the calculation of the small business market share using the volume of sawtimber sold under both the timber program and stewardship contracting. By counting all sawtimber volume, regardless of which way it's sold, the triggers for set-aside procedures under the timber program could more accurately reflect the small business market for FS timber. However, SBA recognizes that including sawtimber volume sold through stewardship contracting in the small business market share calculation could, under some circumstances, result in there not being a set-aside sale where there otherwise would have been a set-aside had stewardship sawtimber not been included in the calculation and vice versa. SBA requests comment on the possible impacts to small businesses should SBA propose to include the stewardship sawtimber volume in the calculation of small business fair proportion. The Agency further requests comment on the need for transparency in the timber market as well as additional data in order to help SBA further analyze the impacts of including stewardship sawtimber volume in determining the small business fair proportion of the market used in triggering set-aside sales under the timber program.
It is also important to note that under this potential policy change, although the volume of sawtimber sold through the timber program and stewardship contracting would be used in the calculation of the size of the small business market share that triggers a set-aside sale, set-aside sales would only continue to occur under the timber program. Since set-aside sales are not provided for under stewardship contracting, such a policy change would not affect the FS's implementation of the stewardship process.
The following is an illustration of how including stewardship sawtimber may result in a more accurate depiction of the market that small businesses are operating in:
Example A. The target market share for small business is 47%. A timber program sale is conducted through full-and-open procedures. A small business wins the award which contains 1,000 CCF (one hundred cubic feet) of sawtimber. Since small business has attained 80% of the sawtimber market share (large business is allotted 20% of the offered timber program sale volume per FS regulations), unless that share drops below 37% (trigger occurs when small business market share is 10 percentage points or more below the established baseline market share) through subsequent timber sales, there will be no trigger for set-aside sales and future timber program sales will continue under full-and-open competition.
Example B. In the same market area, there have also been four (4) stewardship sawtimber sales. These are always conducted as full-and-open competition sales, because set-asides for small business are not provided for in implementing stewardship contracting projects. These four (4) awards have all gone to large businesses, each for 1,000 CCF. The next timber program sawtimber sale is for another 1,000 CCF, but because stewardship sawtimber volume is not counted, the attained
Example C. Even if two (2) of the stewardship sawtimber sales in example B had been previously won by small businesses the trigger for a set-aside of the next timber program sawtimber sale would not have occurred as small business would have been shown to have purchased a total market share of 60% (3,000 out of 5,000 CCF) which is better than the minimum established 47% share for that market area.
The FS received authority to implement pilot stewardship contracting projects in section 347 of the FY1999 Omnibus Appropriations Act (Pub. L. 105-277, sec. 347). Similarly, BLM was authorized to use stewardship contracting in 2003 (Pub. L. 108-7, 16 U.S.C. 2104). The purpose of stewardship contracting was to help achieve land management goals in National Forests and in the public lands managed by BLM, in addition to helping meet the needs of local and rural communities. Initially, stewardship contracting was scheduled to expire in 2003 and then again in 2013. The Agricultural Act of 2014 established stewardship contracting as a permanent authority (Pub. L. 113-79, sec. 8205).
Stewardship contracting is a goods-for-services arrangement that requires timber companies who cut trees on federal (FS and BLM) lands to perform other service work in exchange for the timber volume. Stewardship contracts fall into two general categories, Integrated Resource Timber Contract (IRTC) formats, which were developed for exclusive use in implementing stewardship contracting projects when the value of goods exceeds the value of services and Integrated Resource Service Contract (IRSC) formats, which were developed for exclusive use in implementing stewardship contracting projects when the value of services exceeds the value of the goods.
The entire wood products industry in the U.S. has undergone dramatic changes in the past three decades. The sale of timber from the National Forest System (NFS) has decreased from an annual timber volume of approximately 10 billion board feet in 1990 to approximately 2.9 billion board feet in 2015. While the reasons for this decline are not relevant to this proposed rule, the significance of this decline shows that all mills, both small and large, and the communities that they support have struggled to cope with the diminished supply of timber to sustain their operations. Coupled with other economic factors, such as the recession of 2008-2009 which saw a reduction in finished product markets, particularly the new single family home construction market, the decline in the timber industry has resulted in the closure of a significant number of small and large mills. The segment of the U.S. timber industry that derives its timber from the NFS does not operate in a vacuum but in the overall market for timber. In the United States, in the late 1990s, over 90% of the timber harvest volume came from private lands and only about 5% came from USFS sales. During the recession, the drop in new residential construction from 1.7 million units annually to 450,000 and a decline in home remodeling as residential mortgages tightened and home sales dropped combined to impact wood manufacturing. From 2005 to 2009, over 1,000 sawmills closed, comprising nearly 19% of all domestic mills in the forest sector. Many other mills operated at limited capacity. All mills, both large and small, have been forced to adapt and retool in response to these changes, including mills of all sizes that do not rely on timber supplied from NFS lands. Competition from overseas markets for private timber also complicates the ability for U.S. markets to compete. Thus, the importance of timber supply from FS lands may have increased, however the impacts to businesses may be attributed to a combination of supply, demand and global market changes. The closure of small mills of all sizes has had and continues to have an adverse effect on employment and the overall economy in rural timber communities where the timber industry is the leading provider of employment and income. Small mills depend on the SBA Timber Set-Aside Program to purchase their fair share of timber offered for sale by the FS.
SBA conducted annual field visits in different regions of the country and from interviews with small businesses in the logging, sawmill and other wood manufacturing industries has learned they have suffered immensely due to a diminished supply of timber. Based on the data from the U.S. Census Bureau's County (CBP) Business Patterns Reports available at
The data also confirms that the number of large business firms (
While total employment fell across both small and large firms in those industries, the proportion of employees that is employed by small businesses increased from 1997 to 2012. For example, as a percentage of total industry's employment, employment by small logging firms increased from 94% to 95%. Likewise, employment by small sawmills increased from 67% of total industry's employment in 1997 to 72% of total industry employment in 2012. This increase in the proportion of workers employed by small businesses has coincided with the significant decrease in the number of small businesses. This indicates that, even if they have decreased in number, small businesses are increasingly responsible for supporting employment in those industries.
As demonstrated in Tables 1, 2, and 3 below, stewardship timber volume (
In Fiscal Year 2013, stewardship timber sales accounted for 31% of all timber volume (timber plus non-timber) sold by the FS, up from only 5% a decade earlier. It should be noted that stewardship sawtimber volume is different from the total stewardship timber volume, and that all tables/references are based using the timber volume data only.
According to historical sales data, the average number of bidders is 1.02 for stewardship timber sales and 1.97 for timber program sales; a statistically significant difference. This suggests that stewardship timber contracting may have fewer competitors. On average, stewardship timber sales are substantially larger than timber program sales, especially those awarded to small businesses. According to the analyses of both timber program and stewardship sales data provided by FS, as shown below in Table 4, compared to timber program volume, small businesses acquired a larger percentage of stewardship timber volume in Region 2 (100%), Region 4 (100%), Region 8 (94%), and Region 9 (87%) where stewardship timber volumes are quite minimal relative to total volumes sold. However, small businesses received a lower percentage of stewardship timber sales in Region 1 (70%), Region 5 (49%), and Region 6 (56%) where stewardship timber sales are generally fairly large relative to total sales. While small businesses received a larger percentage of stewardship timber volume in five regions individually, in aggregate (
Still, SBA faces data challenges in analyzing the impact on small businesses from a potential policy change to include the stewardship sawtimber in the calculation of small business fair proportion or market share used to establish a set-aside sale within the timber program. The FS conducted an analysis with FY 2002-2010 data for Regions 2 through 5, 8 and 9 and with FY 2002-2015 data for Regions 1 and 6. To bridge these gaps in the data, SBA evaluated the percentages of timber program and stewardship sales awarded to small businesses using the data from the SBA's Timber Sales System (TSS) for FY 2004-2014. These results, as shown below in Table 5, also showed fairly similar patterns as in the FS analysis in Table 4, with small businesses generally acquiring a relatively larger percentage of stewardship timber in most regions where stewardship contracting is limited and a smaller percentage in regions where stewardship timber sales are substantial relative to total sales, such as Regions 1, 5 and 6.
As shown below in Table 6, the data further indicates that, during FY 2004—2014, more than two-thirds of businesses (68% of all businesses and 67% of small businesses) that receive stewardship timber contracts also acquired timber through the timber program. Likewise, 87% of stewardship timber volumes sold to all firms and 83% of stewardship timber volumes sold to small firms was acquired by businesses that purchase timber through both stewardship and timber program sales (see Table 7 below). Except for Region 4 with respect to the number of firms and Region 3 with respect to timber volume (in both cases the percentages are less than 50%), the results are more or less similar across regions. The majority of stewardship timber purchasers successfully compete in both markets.
The FS sells logs in accordance with the National Forest Management Act, which describes the process for buying, paying for, harvesting, and removing wood from NFS lands. Pursuant to the Small Business Act (15 U.S.C. 644(a)), SBA established the timber program in 1958. At that time, the timber program was a mechanism for the USDA to set aside timber sales. In 1971, SBA and USDA signed a Memorandum of Understanding (MOU) which established the guidelines for determining “fair proportion,” created a five-year re-computation period for determining the base average shares of timber purchases, and established a “trigger” mechanism for initiating set-aside timber sales. Currently, FS has 9 Regions comprised of 140 market areas, of which 139 are active as shown in Table 11. See
Currently, FS does not consider the sawtimber volume from IRTC and IRSC stewardship contracting in calculating the small business market share. The omission of the stewardship sawtimber volume in the calculation may affect small business market shares in either direction relative to the current policy. For example, FS' Mt. Hood market area (located in Region 6) has an established small business market share of 80% (as calculated during the 2010 re-computation of small business market shares). Because 20% of FS' timber program sales must be competed as full and open in order to ensure that large businesses also have the opportunity to compete, 80% is the maximum allowable small business share and indicates a robust small business timber purchase market. Over the period from November 2010 through March 2015, twenty-six (26) timber sales were offered in the Mt. Hood market area. Of those 26 sales, sixteen (16) were stewardship timber contracts which included timber volume. Twelve (12) of these were awarded to small businesses under full and open conditions. Ten (10) of the 26 sales were timber program sales. Eight (8) were awarded as full-and-open sales, and two (2) were small business set-aside sales.
This data suggests that small businesses have been successfully obtaining timber volume in this market area, but because stewardship sawtimber volume is not included in determining what the correct small business market share calculation should be, the small business fair market share has dropped from 80% to 72%. This is one example of how not counting stewardship sawtimber volume in the calculation can influence what the small business established fair share should be. Based on the limited data available, as it appears, it is also possible that including the stewardship sawtimber volume in the calculation of fair proportion could have the reverse effect in some regions, increasing the five-year fair market share relevant to the current policy.
In response to requests from timber industry stakeholders, SBA published an Advance Notice of Proposed Rulemaking (ANPRM) in the
The ANPRM presumed that the U.S. timber industry has undergone dramatic changes in the past decades. As stated in the ANPRM, the supply of timber from the FS timber program decreased significantly over the past three decades impacting both large and small businesses.
Comments to the ANPRM provided more insights into the state of the timber industry. For example, according to comments from a trade group representing small timber products companies, Timber Products Manufacturers Association (TPMA), since stewardship contracting was first piloted, small sawmills' share of Federal timber has declined by 71%. For example, in 1993, 146 small sawmills shared access to the FS timber in the Western regions; in 2014, that number had decreased to 43 firms. According to comments, remaining small business sawmills have made changes in their processes and the way they do business to remain competitive and stay in business.
TPMA also commented that, as the number of small businesses declines, large firms are increasingly able to raise costs through anti-competitive means. That is, as the number of potential buyers for timber gets smaller, dominant firms are enabled to set the price. TPMA pointed to a study published by the SBA's Office of Advocacy. Innovation & Information Consultants, Inc., 2008,
In response to the ANPRM, other-than-small industry participants submitted data showing that, as the FS reduced its timber harvest by over 90%, the majority of sawmills in the western United States that existed in 1971 have now closed. According to a regional trade association representing large business operations, the Public Timber Purchasers Group (PTPG), between 1990 and 2010, 207 mills closed in Oregon (a decrease of 66%) causing a loss of 21,000 jobs. PTPG asserted that these economic forces have caused small sawmills to merge or be purchased. As a result, according to PTPG, there is only one operating small business sawmill capable of purchasing federal timber in some FS areas—and in some other areas, there are no longer small business purchasers at all. Additionally, a union representing manufacturing
Commenters also provided localized observations and data. In Bonner County, Idaho, according to the Bonner County Board of Commissioners, 800 logging and sawmill jobs have been lost and only one small sawmill remains. According to a commenter from Coos Bay, Oregon, one of the largest mill sites has been converted to a casino. An executive from a small lumber products company in Clarkston, Washington, spoke at a May 7, 2015 regulatory fairness hearing in Spokane about closing the company's Clarkston mill in 2009 because of the recession. However, partly because of small business set-aside timber sales from the Umatilla National Forest, the company has been able to reopen the Clarkston mill and support 80 jobs. It now operates two sawmills and employs 240 workers. Conversely, two small business sawmills in Montana initiated layoffs of between one-third and one-half of their workers.
In response to SBA's invitation for comments on the current Program, 221 commenters expressed general support for the current Program. Commenters generally asserted that small mills depend on the Program to purchase their fair share of timber offered for sale by the FS. By contrast, large business mills appear to make greater use of private land as a reserve for harvesting timber.
TPMA commented that in addition to supporting small firms and their surrounding communities, small business set-asides do not significantly reduce federal revenues. The group's comment pointed to a government analysis showing that set-aside sales take in only two percent less than open sales. A study published in 2013 found that set-asides reduce FS revenue by 5%, and the effect of reducing competition by excluding large businesses is partially offset by increased small business participation. Athey, Susan, Dominic Coey, and Jonathan Levin. 2013. “Set-Asides and Subsidies in Auctions.” American Economic Journal: Microeconomics, 5(1): 1-27, available at
SBA also received comments from a variety of local legislators who described how the timber set-aside program operates in their areas. According to the comments, in Klamath County, Oregon, the only operating sawmill is an other-than-small business, so instituting set-asides would impact the county's budget. By contrast, a legislator from Marion County, Oregon, commented that smaller mills that rely on set-asides support much of the county's employment. Fifteen years ago, the milling industry supported 63.5% of the employment in the North Santiam Canyon communities; because of the downturn in the industry, the industry now supports 41% of employment.
The Commissioners of Powell County, Montana, noted that the trend toward increasing stewardship contracts in three national forests—Beaverhead-Deerlodge, Helena and Lolo National Forests—has reduced the potential amount of funding to the county because stewardship contracting does not feature revenue sharing as timber program sales do. From 2001 to 2013, the percentage of stewardship contracting on the Beaverhead-Deerlodge and Lolo National Forests accounted for over 23% of the sawlog volume sold during that period.
A commenter from Salem, Oregon, responded that the local community has suffered a devastating impact because of the reduction in revenues from timber sales. According to the commenter, declining timber revenues has meant fewer jobs, less revenue for county services, and less revenue to support families.
Several private business commenters remarked that failure to include the volume of timber associated with stewardship contracting lowers the market share for small business set-aside sales. A lumber company in Lyons, Oregon, that employs 430 people commented that 38% of its federal timber was bought on a small business set-aside basis. The commenter expressed concern that half of the sales volume available to it is being distributed through stewardship contracting, which limits the volume available through timber program open and set-aside timber sales. A 93-year-old lumber company in southwest Oregon stated that 100% of its federal timber under contract was purchased through small business set-asides. The commenters worried that, without the small business set-aside program in place, large businesses would starve small businesses out of public timber.
Another small business lumber company in north central Idaho remarked that the small business set-aside program is non-existent in Nez Perce-Clearwater National Forest because in excess of 80% of the forest's timber volume is sold through stewardship contracts. The commenter stated that, because the stewardship program is not subject to set-asides, its business could not avoid bidding against large businesses.
From Montana, a family-owned sawmill and forest management company commented that 15 million board feet of logs from the Flathead National Forest has been made available through stewardship contracting, rather than through the timber sales program. The commenter observed that this volume would be enough to run its mill for nearly six months.
A substantial number of commenters asserted that agency action is required to avoid irreparable harm to the competitive timber market in the United States, leading to the closure of many small timber manufacturers. Many commenters from small business mills are the primary employers in their rural communities, and they believe that the lack of action will result in thousands of jobs lost and the destruction of many of these communities. The small business industry group commented specifically that failing to include stewardship contracts in the small business timber set-aside program has decimated small timber manufacturers.
Several commenters also noted that large multinational companies have begun to aggressively pursue both timber program full-and-open and stewardship sales in an attempt to drive small businesses from the playing field. For example, a third-generation small
A small business lumber company from Deer Lodge, Montana, operating in an area where the FS owns over 60% of timber lands, commented that it is dependent on the small business timber set-aside program. The commenter stated that it initially supported stewardship contracting, but did not expect that it would be a major part of FS's timber offerings. As the percentage of stewardship offerings has become a third of the overall timber program volume, the commenter predicted that it would only be able to continue operations if it has an opportunity to bid on a fair share of federal timber sales without interference from large businesses. The Mayor and City Council of Deer Lodge, Montana, also support the set-aside program, stating that the sawmill industry made up the cultural and economic basis for the community.
A small sawmill in Kamiah, Idaho, commented that it had been shut down during the 2008 recession, but started up again with 65 employees after it was auctioned off. The commenter responded that it has found predatory bidding in non-set-aside sales and, as a result, has not been able to purchase public logs in two years. The commenter stated that it is surviving only on private landowner logs, and it believes that its sawmill will fail and 65 jobs will be lost if the set-aside program is not amended. The Mayor of Kamiah commented that the city has one of the highest unemployment rates in Idaho. The Mayor wrote that losing the local sawmill industry would devastate the area economically.
A substantial number of commenters from across the western United States commented that their communities and families relied on the local sawmills. One commenter from Colville, Washington, responded that he has been on unemployment twice in the past three years because of timber shortages. An individual commenter from St. Regis, Montana, added that small family-owned forest product companies need the SBA set-aside program to ensure stable access to government timber. Similarly, an individual from Lyons, Oregon, commented that the set-aside program supported a stable environment for small-town families. A commenter from Weippe, Idaho, remarked that the sawmill that was founded there in 1947 has relied on set-aside sales to compete with large sawmills.
A union group commented that it opposes any government action and believes that agencies should craft a solution that does not disproportionately punish organized labor.
Several commenters pointed to Congressional efforts to force agency action. Congress has urged the Administration to address this issue through multiple bills and correspondence. In 2014, Congress included the following report language in the Joint Explanatory Statement accompanying Public Law 113-235, the Consolidated and Further Continuing Appropriations Act, 2015 (160 Cong. Rec. H9768, Daily ed. Dec. 11, 2014):
The Forest Service is strongly encouraged to expeditiously prepare and publish draft rulemaking to establish a small business set‐aside program for timber contracts undertaken using stewardship contracting authority that is consistent with previous commitments made by the Service and the Department of Agriculture on this matter.
Similar language on the need for either SBA or the FS to address the issue through regulation is included in the FY2016 appropriations bills or in Congressional correspondence to the agencies.
Over 300 commenters urged SBA to include stewardship sawtimber volume in the small business market share calculation, while 15 commenters opposed it. Based on SBA's analysis of both the available data and comments received in response to the ANPRM, SBA is considering including the stewardship sawtimber volume in the calculation of small business market shares. SBA's ANPRM requested comments on how the inclusion of stewardship sawtimber might impact future market share calculations, stumpage prices, land management activities, retained receipts, and sale values. SBA also requested comments on whether an increase in the utilization of stewardship contracts in a market area might result in a lower representation of small businesses successfully bidding for timber sales in that market area and whether this should lead to lowering the market share for small business set-aside sales in that market area when the FS and SBA compute small business participation. Commenters provided a wide range of views on these topics.
Of the 842 commenters, 327 suggested that stewardship sawtimber sales should be included in the calculation of set-aside trigger points. Further, 14 commenters urged SBA and FS to include the stewardship sawtimber volume in the upcoming (now recent) five-year re-computation of small business shares to ensure accurate representation of small business participation. TPMA, the small business trade group, commented that increasing use of stewardship contracting, in particular IRTCs, creates a “loophole” in the small business market share calculation. According to TPMA, as IRTC contracting becomes more prevalent, the calculated small business market shares become distorted because they are only computed based on a handful of sales. This is because one-third of the market volume is being transacted through stewardship contracts and is currently excluded from the small business market share calculation. TPMA asserted that the omission of stewardship contracts understates the volume of timber being transacted and thus results in the inflation of the calculation of the small business market share. TPMA pointed to the Payette market area, where there were only two standard timber sales contracts. TPMA asserted that excluding stewardship volumes from the calculation prevents small businesses from achieving a representative re-computation that is consistent with the Small Business Act.
Fifteen commenters stated that stewardship timber volume should not be included in the calculation. The PTPG commented that the goal of the stewardship program is to accomplish forest health, watershed improvement and similar projects with the sold timber offsetting some or all of the costs. Because the selection of stewardship contractors is a subjective process that uses a “best-value” process, PTPG asserted that stewardship contracting should be excluded because re-computations of market shares for set-aside sales should be based upon objective timber sale data. Also, PTPG commented that, if stewardship sales were included in the set-aside timber sale program, the number of potential contractors would be significantly limited for any stewardship sale designated as a set-aside.
Thirty-nine commenters expressed that failure to include the stewardship sawtimber volume in the small business market share calculation will adversely affect the small businesses which rely on the federal timber supply. These commenters suggested that the trend towards stewardship contracting negates the positive impacts of the small business timber set-aside program. In particular, a small business sawmill in Deer Lodge, Montana, and the largest private employer in Deer Lodge, commented that stewardship contracting has been increasing in use, both in terms of number of sales and sawlog volume. Although the business has promoted stewardship contracting as a positive method of resolving resource conflicts on National Forest Land, it supports including the stewardship sawtimber volume in the SBA set-aside calculations.
Similarly, a trade group in Idaho representing logging and wood hauling contracting businesses supported including stewardship contracting sawtimber in the calculation of shares of timber program sales acquired by small businesses. The trade group observed that, in some Idaho forests, the stewardship timber volume has exceeded over 80% of total timber sales in four of the last five years.
The comments from a small business trade group emphasized that adding the stewardship sawtimber would add transparency and diligence to the recordkeeping process. These commenters observed that, even within the timber program, the volume in transactions with small businesses is inaccurate because the calculations are based on volumes advertised and awarded, and does not include volumes added through contract modifications.
SBA's ANPRM requested comments as to how the stewardship sawtimber volume should be accounted for in calculating the small business market share. Six commenters suggested that FS simply use existing timber program sale rules and norms to count sawtimber volume from stewardship projects. TPMA asserted that adding stewardship sawtimber volumes to the calculation would not be difficult. According to TPMA, FS develops an appraisal for each stewardship opportunity to decide the value of the timber available to be exchanged for services. These volumes and values could be tracked and used to adjust proportions used in the Program. Additionally, TPMA commented that FS provides upon the requests of the Timber Data Company with Reports of Timber Sales (FS 2400-17) which contain timber volume data for all timber sale contracts.
Three commenters asserted that, depending on the market area, inclusion of the stewardship timber volume may increase small business participation in both stewardship contracting and the timber program. Five commenters felt that increased competition from the inclusion of stewardship sales would increase stumpage rates. The same number of commenters stated that inclusion of the stewardship sawtimber volume would reduce the number of bidders and decrease stumpage rates.
Six commenters felt that any financial impact on sales value is less important than the socioeconomic benefits. These commenters also suggested that while timber prices may increase with the inclusion of stewardship sawtimber volume in the small business market share calculation, it would have no impact to the treasury. Conversely, four commenters stated that inclusion of the stewardship sawtimber volume would reduce treasury revenue and the value of public timber.
Seven commenters felt that the impact on small market shares of including the stewardship sawtimber volume in the calculation would vary by market area. One commenter expressed that inclusion of the stewardship sawtimber volume would have a beneficial impact on future market shares.
Eleven commenters suggested that if stumpage rates were decreased, restoration activities, retained receipts and local employment would be negatively impacted. A small, second-generation, family-owned lumber manufacturing business in Eugene, Oregon, supported including stewardship sawtimber volume to prevent circumvention of the set-aside program.
Nineteen commenters went so far as to state SBA and FS have a legal obligation to include the stewardship contracting sawtimber volume in the small business market share calculation to ensure small businesses purchase a fair proportion of sawtimber volume. Under section 15(a) of the Small Business Act, SBA bears the responsibility of ensuring that small businesses receive a fair proportion of “total sales” of Government property. SBA believes that sawtimber transacted through stewardship contracting should be properly included as an element of “total sales” under the Small Business Act, because much of stewardship contracting is done through IRTC contracts where FS receives cash from the transaction.
While several commenters believed that the small business market share is overstated, overall small business base market share may actually be understated because small business' high share of the stewardship contracting sawtimber volume is not included in the base market share calculation. As noted above, stewardship sales account for approximately one-third of total timber sold by the FS. In the majority of FS regions, small businesses purchase the majority of the stewardship contracting timber volume. However, large businesses capture the majority of the stewardship contracting timber volume in some market areas. For example, according to comments, large businesses captured 75% of the stewardship volume in the St. Joe Market Area, presenting a challenge to two small sawmills in the area.
SBA's is considering a potential policy change to include stewardship contracting sawtimber volume in the calculation of small business market shares. SBA's analysis shows that failure to include stewardship contracting sawtimber volume may either favorably, unfavorably, or negligibly skew the base small business market shares used to determine when FS must set aside timber program sales in some market areas. Inclusion of stewardship contracting sawtimber volume in the small business market share calculation could also more accurately capture small business participation and ensure transparency of the Program, another justification under consideration.
SBA welcomes additional comments on the possibility of including the stewardship sawtimber volume in the calculation of base small business market shares. Specifically, SBA requests additional comments and data related to the calculation methodology and analysis set forth in this rule. SBA requests comments as to whether those regions or market areas where small businesses purchase a large percentage of sawtimber through stewardship contracting should receive different treatment in the computation of small business market shares and, if so, what that alternative treatment should be. Likewise, SBA requests comments as to whether those market areas where the stewardship contracting represents a large percentage of overall sawtimber volume should receive different treatment. Additionally, SBA seeks comments as to whether the inclusion of the stewardship sawtimber volume should be subject to any caps or other special considerations. SBA also seeks comment on its authority under section 15(a) of the Small Business Act to treat all stewardship sawtimber sales as an element of “total sales” and whether there are alternative treatments—
SBA's ANPRM requested comments on several issues related to the appraisal methodology FS uses to appraise set-aside timber sales under the timber program: How to best reflect the actual haul costs to eligible small business timber set-aside purchasers; whether there should be special considerations in those market areas that do not have mills that would qualify as “small” under the SBA's criteria; how to account for the “30/70 rule” in the appraisal process; and whether trust funds would be impacted by changing the appraisal point in set-aside sales.
Regarding the appropriate appraisal point, 28 commenters stated that appraisal of haul costs should be made to the nearest small mill in set-aside sales while 12 commenters expressed that the appraisal should be made to the nearest mill regardless of size. Those in support of changing the appraisal point in set-aside sales to the nearest small mill believed that such an approach would more accurately reflect the realities faced by small businesses. Several commenters observed that, for its set-aside sales, the BLM appraises haul costs to the nearest small business facility capable of handling the timber volume in BLM's eight markets in Oregon. A small business commenter responded that the current process of appraising set-aside timber sales to a large business defeats the purpose of the set-aside program. The small business trade group commented that the appraisal of a set-aside sale should include a haul-cost adjustment to account for the actual cost of hauling. The same commenter pointed to the FS Timber Sale Preparation Handbook, Chapter 40, section 45.11 (FSH 2409.18), available to the public at
Ten commenters felt that a change in the appraisal process would require haul cost subsidies and lead to reduced revenue and reinvestment opportunities. The PTPG, for example, commented that changing the appraisal point would cause the FS to divert stewardship funds to subsidize long hauls to distant mills. Some set-aside sales could result in negative appraised value, according to the PTPG comments. Another commenter responded that a change to the appraisal point would divert federal timber away from union workers and would reduce federal timber receipt-sharing for rural communities.
Four commenters stated that a change in the appraisal point will not impact trust fund collections, while three commenters believed that trust fund deposits would be reduced. The large business trade group in particular commented that, if the appraisals resulted in below-cost timber sales, rural communities would be harmed by the reduction in federal timber payments. The same commenter responded that a change in the appraisal point would cause inefficiency by allowing distant mills to purchase set-aside logs.
Thirteen commenters felt that FS and SBA should take greater steps to enforce the 30/70 rule in set-aside sales. Fifteen commenters felt that appraisal should be made to the nearest small mill only if it is located within a reasonable distance from the sale. These commenters believed that FS should suspend the set-aside or waive the 30/70 rule if no small mills are located within a reasonable distance of the sale. Seven commenters expressed that the 30/70 rule should either be eliminated altogether or waived for non-manufacturers when no small mill is present. Eleven commenters felt that inclusion of the 30/70 rule in appraisal point calculations would unnecessarily complicate the process, increase risks, and reduce stumpage rates and revenue.
Although commenters to the ANPRM proposed various alternatives as to how haul costs should be appraised in small business set-aside sales, none of the commenters provided any data that would adequately support one alternative over the other. As such, SBA requests additional comments regarding the other alternatives identified in comments to the ANPRM. Specifically, SBA requests comments as to whether haul cost adjustments should be made for non-manufacturers. Further, as noted above, several commenters recommended appraisal to the nearest small mill only if it is a “reasonable distance” from the sale. SBA requests comments as to what constitutes a reasonable distance. SBA also requests examples of market areas where the recommended reasonable distance would make a significant difference in the appraisal price. Understanding that any sale price accepted by the government must be “fair and reasonable,” SBA requests comments as to why an increased appraisal cost to the nearest small mill would still support such a finding.
SBA is also aware that certain market areas do not have small mills located within their geographic boundaries. Accordingly, SBA requests additional comments regarding potential geographic exceptions for market areas with no small mills.
Finally, with respect to appraising haul costs with respect to the 30/70 rule, SBA requests comments as to whether SBA should consider, when the nearest mill is a large business, appraising 70% of the haul costs to the nearest small mill and 30% of the haul costs to the nearest large mill. SBA specifically requests comments as to whether such an approach is or is not favorable, given that it may accurately reflect the true costs to haul the timber, but may unnecessarily complicate the process.
SBA notes that a number of commenters interpreted SBA's ANPRM to propose a change of the appraisal point in all timber program sales. This is not SBA's intent. As noted above, SBA is proposing that the appraisal be made to the nearest small mill only in the case of set-aside sales.
SBA notes that a number of commenters interpreted SBA's ANPRM as a proposal to subject stewardship contracting to the procedures of the small business timber set-aside program. For example, a large business trade group stated that, if stewardship sales were included in the set-aside timber sale program, the number of potential contractors would be significantly limited for any stewardship sale designated as set-aside. The same commenter remarked that stewardship set-aside sales would complicate the application of the 30/70 rule. The commenter also noted that if a stewardship sale is designated by the
It is not the intent of this proposed rule, however, to apply the set-aside rules to stewardship contracting. The intent of this rule is only to define, under authority of section 15(a) of the Small Business Act, what procedures SBA should use to calculate the proportion of “total sales” of timber flowing to small businesses. SBA is considering whether to include the stewardship sawtimber volume purchased by small businesses in the calculation of small business base market shares used in triggering timber program sale set-asides, but SBA is seeking comments and data before moving forward with such a policy change.
Approximately 45 commenters urged SBA and FS to conduct a comprehensive review of small business timber sale set-aside program procedures before implementing any changes. These commenters observed that SBA and FS rules for the set-aside timber sale program have not been updated to reflect the changing industry infrastructure or federal timber supply. Other commenters disagreed, urging SBA to make these changes prior to the October 1, 2015 re-computation. These commenters also emphasized that they have been seeking these changes for many years and saw further reviews or studies merely as another delaying tactic.
An additional five commenters felt that the re-computation period should be shortened to ensure continued accurate representation of market shares. Three commenters suggested that the structural re-computation method should be eliminated altogether. One commenter suggested carrying forward market area deficits into the next five-year period. SBA believes these issues are more appropriately addressed through negotiations between SBA and FS.
As discussed in detail above, SBA is considering including the volume of sawtimber sold through stewardship contracting in developing the 5-year re-computation of small business market shares which are used to determine when timber program sales must be set aside for small businesses in the FS regions. SBA recognizes that in some regions, small businesses are successfully competing for full-and-open sales under the stewardship contracts. This possible policy would not likely alter that fact. SBA also recognizes that in some regions, small business may be successfully winning under timber program sales without set-asides. Again, this policy would not be intended to alter that fact. In some regions, counting the stewardship sawtimber volume may result in triggering a set-aside opportunity that might not otherwise occur without this new policy in place. In others, counting the stewardship sawtimber volume may result in removing a set-aside opportunity where one previously existed. In still other regions, including the stewardship sawtimber may have no impact relative to the status quo. Regardless, this policy under consideration would establish a transparent process across all FS regions.
The Office of Management and Budget (OMB) has determined that this proposed rule is a significant regulatory action for purposes of Executive Order 12866. Accordingly, the SBA's Regulatory Impact Analysis can be found below. This is not a major rule, however, under the Congressional Review Act, 5 U.S.C. 80,
The proposed rule furthers statutory intent that small business concerns receive a fair proportion of the total sales of Government property.
Because of the locations and sparse number of the remaining sawmills, current appraisal points used for assessing hauling costs may have prevented many small sawmills from bidding on set-aside timber sales, since fuel costs for transporting the timber from the forest to the processing location may negate the profit margin of the purchase. As such, the proposal to appraise set-aside haul costs to the nearest small business mill is necessary to accurately reflect the costs to eligible bidders.
As noted above, SBA is also considering a potential policy change, but not proposing in this rule, to include the stewardship sawtimber volume (from both the IRTC and IRSC contracts) for the calculation of the small business fair proportion market share of timber program sales. To assess the trends on timber program l and stewardship timber sales and impacts to small businesses from such a policy change, SBA conducted multiple analyses with the limited data available. The results showed that timber program set-aside sales have declined since stewardship contracting began and that each FS region has steadily increased the availability of stewardship contracting during the period from 2004 through 2014. In addition, in several FS regions, especially those where timber sold through stewardship contracting is large relative to total timber sold, and in aggregate (
SBA's proposal to appraise small business set-aside timber sales to the nearest small business mill would enable small businesses to comply with existing laws affecting set-aside timber sales while promoting an atmosphere more conducive for them to participate in the overall FS timber market. Using the appraisal data received from FS, SBA estimated total sales to be about 2,900 for FY 2009-2014, of which 86% were sales to small businesses. Using the same data, excluding special salvage timber set-aside sales, SBA identified 156 small business set-aside sales (or 5.3% of all sales and 6.2% of all small business sales) that were appraised to a large business mill. A regional breakdown of these data is provided below in Table 9, below. Based on the data obtained from SBA's Timber Sales System (TSS), SBA estimated total average receipts FS received for FY 2002-2014 for all Regions to estimate the cost (
The FS conducted an econometric study to assess the impacts of SBA's proposal to appraise hauling costs of all set-aside timber sales to the nearest small mill and potential policy change to include the stewardship sawtimber volume in the small business fair proportion or market share calculation. Specifically, FS estimated a stumpage equation for each FS region outside of Region 10 (Alaska) with a bid premium (
As can be seen from the results in Table 8, the estimated equations explained about 35% of total variation in bid premiums for Regions 1, 3, and 5, followed by 16% for Region 6 and less than 10% for remaining affected FS regions. Thus, the results suggest that several other relevant factors may have been needed to explain the variation in bid premiums.
To assess the impact of changing the appraisal point for the small business set-aside sales to the nearest small business mill, SBA analyzed the appraisal data provided by FS and timber sales data from TSS. Specifically, SBA received eight different tables from FS with appraisal data for Regions 1 through 9 (the data did not include Region 10). Each table included the appraisal point for each sale during fiscal years 2009-2015, by region. SBA merged the eight tables into one, and then cleaned and reformatted several variables. For example, the numerical value for distance to the nearest small mill was cleaned by taking out the character values (
As shown in Table 9 (below), the results from the FS appraisal data indicate that the SBA's proposal to appraise the small business set-aside sales to the nearest small business mill would impact 5.3% of all sales and 6.2%of all small business sales. On an annual basis, the proposed change would benefit approximately 65-70 small businesses that participate in set-aside timber sales.
Using the FS appraisal data, SBA was also able to estimate distance to the nearest small mill from the nearest large mill for each set aside sale that was appraised to a large mill and some key summary statistics for the same. These results are provided in Table 10, below. The median distance to the nearest small mill is about 62 miles and the mean distance about 66 miles. This analysis does not reflect the more appropriate analysis of the distance from the sale to the nearest mill and small mill, for which data were not readily available.
With respect to the impacts of the proposed change on bid/stumpage price and on FS receipts from timber sales, FS econometric/stumpage equations included two variables related to hauling costs, namely distance to the nearest mill (for Regions 1 through 8) and total hauling costs ( for Region 9) (see Table 8). While FS, based on its conceptual analysis of relationships among reserve price, bid price, bid premium and hauling costs, expected these variables to have a negative impact on bid premium, the results were rather mixed. Specifically, the estimated coefficients associated with distance to the nearest mill were negative for Regions 1, 4, 5, 6, and 8, and positive for Regions 2 and 3. The estimated coefficient for hauling costs was also positive for Region 9. Among the regions with a negative coefficient for distance to the nearest mill, the coefficient was significant only for Regions 5 and 6.
Amid these results, FS concluded that, conceptually, both FS receipts and money flowing into the trust funds from timber receipts will decrease under the SBA's proposal to appraise the set-aside timber sales to the nearest small mill, but without information on the number of set-aside sales that would be affected and additional hauling costs incurred in each affected sale, it is not possible to
Accordingly, SBA estimates cost or receipt loss to FS due to the proposed change to use the nearest small business mill to appraise the set aside sales as follows:
Receipt loss = regression coefficient for distance to the nearest mill (Table 8) × median distance to the nearest small mill (in miles) (Table 10) × number of set-asides appraised to a large mill (Table 9) × average volume of set-aside sale (CCF) from TSS.
The average volume of set-aside sales was based on the FY 2009-2014 data from TSS. Accordingly, receipt loss for Region 6 is estimated to be about $1.07 million (−0.057 × 65 × 41 × 6,979 = −1,066,439), which is about 0.9 percent of total FS timber receipts for Region 6, estimated at about $124 million (
FS expressed concerns that by limiting the receipt impact assessment to only Regions 5 and 6, SBA's regulatory impact analysis of the proposed change is incomplete. FS argued that the two regions examined are not representative of all regions and the results cannot be generalized across the country. As shown in Table 8 (above), the FS econometric results do not support a similar analysis for all affected FS regions. For example, the estimated coefficients for distance to the nearest mill (Regions 2 and 3) and hauling costs (Region 9) were positive, although not significant. Additionally, there were no set-aside sales in Region 3 that were appraised to a large mill. Thus, the proposed change would have no impact in Region 3. Using a positive coefficient for Region 2 would yield a counter-intuitive result of positive receipt impact to FS from the SBA's proposal to appraise the hauling costs for set-aside sales to the nearest small mill, which would make no sense. The same is also true for Region 9. Additionally, SBA has no data to convert the mileage to hauling costs to estimate the impact in Region 9. Similarly, the relationships between bid premiums and the mileage to the nearest mill were not significant for Regions 1, 4 and 8, although they had expected negative signs. The impact estimates based on these results would not mean much on a statistical sense. Given the lack of alternative data to assess the FS receipt impacts from the SBA's proposal for regions for which estimated relationships between bid premium and the distance or hauling costs and were either not significant or had opposite signs, SBA's regulatory impact analysis is limited to Regions 5 and 6 only.
While SBA agrees with FS that every region is different, but because Regions 5 and 6 together account for nearly half (47%) of all set-aside sales and two-thirds (67%) of timber volume appraised to a large mill in all FS regions (excluding unaffected Region 3), the results based on these two regions provide fairly robust indications on the magnitude of impacts the proposed change might have across other regions, as well as the overall FS market.
With respect to benefits to small businesses from the proposed change, as shown in Table 9 (above), based on the historical data, about 65-70 firms (68 to be exact) would benefit from the SBA's proposal to appraise all set-aside timber sales to the nearest small mill. This figure is likely to be higher because some previous set-aside sales that received no bids from small businesses and were subsequently re-offered as full and open sales may become economically attractive for small businesses to bid when they are appraised to the nearest small mill. The SBA's proposal would benefit small businesses by lowering costs in hauling the set-aside timber purchases to the nearest mill
SBA believes that these positive impacts to small businesses justify some losses to FS receipts (0.9% in Region 6 and 2.4% in Region 5) under the proposed change. SBA notes that it did not evaluate the impacts reductions in receipts may have on the Forest Service's forest management and restoration goals or on payments made to counties for schools, roads, community wildfire protection planning or other purposes as authorized.
The main purpose of the SBA's proposal to appraise the set-aside sale to the nearest small business mill is to more accurately reflect the hauling cost to eligible small business bidders. Based on the historical data, up to 65-70 small business bidders will benefit from this proposed change. As discussed above, SBA expects more small businesses to participate in the timber set-aside program under the proposed change as some small firms that do not bid for set-aside sales appraised to a large business mill currently may decide to participate. SBA believes that the number of set-aside sales that receive no bid from small businesses and become full and open sales will decrease, thereby increasing the number of sales to small businesses. These all will help small businesses keep their business economically viable and to support or create jobs in their communities. Small business employees receive and spend wages within the communities and taxes they pay to local and state governments. These effects, although difficult to quantify, will further offset the impacts of decreases in flows of money to trust funds due to declines in FS timber receipts.
Overall, the proposed change to appraise the small business set-aside timber sales to the nearest small mill is consistent with SBA's statutory mandate to assist small businesses.
A possible regulatory action to include the stewardship sawtimber volume in the calculation of small business fair market share could provide transparency to the process of determining whether or not small businesses are receiving the statutorily mandated fair proportion of timber sale contracts offered by FS. It could provide a market share that would more accurately reflect the small business participation in the government owned timber market and provide the public with more accurate information on functioning of the market. However, at this time, based on the currently available data, SBA's analysis indicates
In addition, in considering the possibility of including the stewardship sawtimber volume in the calculation of small business fair proportion used for determining small business set-aside sales within the timber program market, SBA also re-computed the latest five-year small business market share used to trigger a small business set aside sale by including the stewardship sawtimber volume. (Every five years base small business market shares are re-computed by including the timber sales data for the previous five years and remain valid until the next re-computation.) The re-computation results are shown in Table 11. As can be seen from the table, the inclusion of the stewardship sawtimber in calculation would result in an increase to the recomputed small market share in eight (12) market areas, a decrease in eleven (14) market areas, and no change in the remaining 113 market areas. The increase in the small business share would range from 1% to 39% and decrease from −1% to −22%. If the recent trend continues, it is possible that with the inclusion of the stewardship sawtimber volume the future small business market shares could be lower or higher in those or more market areas.
Region 10 (Alaska) has an agreement with SBA that small businesses will have a market share of at least 50%. The current market share was determined, via the 5-year re-computation process in agreement with SBA, to be 50% of the planned sale volume for the Region. Over the previous five-year period 100% of both timber and stewardship sales went to small businesses in Region 10. As shown in Table 11, with the inclusion of the stewardship timber volume, an 80% market share would be achievable in Region 10. The Region would have to consult with interested parties, provide notice, and revise the existing agreement with SBA to allow for inclusion of 80% of the Region's planned sale volume in the market (see FSH 2409.18, 91.21.). All re-computed shares reflect the limitations on share movement for the five-year period, except Regions 8 & 9 which do not have limitations on share movement. All shares are limited in movement to no lower than one-half the original base share. Eighty percent is the maximum small business share utilized on any market area, meaning that at least 20% of timber sales have to go to large businesses.
The FS econometric results showed a significant positive relationship between stewardship sales and bid premiums in Regions 5 and 6, a significant negative relationship in Region 3, and those relationships were not significant in other regions. Based on these results, FS argued that in Regions 5 and 6 where bid premiums are significantly higher for stewardship sales than for timber program sales, stewardship contracting will have a positive impact on retained receipts, land management activities and receipts to the treasury. Similarly, in Region 3 where the results showed a significant negative relationship between stewardship sales and bid premiums, FS believed that stewardship contracting will have a negative impact on retained receipts, land management activities and receipts to the treasury. Since SBA is not currently considering to subject stewardship contracts to set-aside sales for small business nor to reduce stewardship contracting as a result of any change in the small business market share by including the stewardship sawtimber in the calculation, SBA expects very little or no impact on FS receipts because of this possible change under consideration. The current analysis indicates including the stewardship sawtimber volume could either benefit small businesses by triggering additional set-aside sales within the timber program when the overall small business market share falls below the certain level or could lead to fewer small business set-aside sales than under the current policy of calculating fair proportion based only on the timber program volume. Due to the lack of data, it is difficult to estimate the number of additional or reduced set-aside sales that would be triggered or disappear, or the number of small businesses that would benefit or be harmed from this possible policy change.
In its response to the ANPRM questions and impacts of the SBA's proposed changes, FS noted that although historical shares of timber awarded to small businesses under the timber sales program and total sales including stewardship sales are similar, this could change if stewardship sales increase significantly as a proportion of total timber sales. Independent of small business impacts, the inclusion of the stewardship sawtimber, which accounts for one-third of the total timber sales, could provide a more accurate representation of what proportion of FS timber is acquired by small businesses. This could not only provide more transparency of the FS timber program, but also more accurate assessment of if small businesses are getting a statutorily mandated fair proportion of Government timber sales.
Besides the proposal to change the appraisal of the hauling costs on set-aside timber sales, SBA is also requesting comment on various alternatives to this proposal, as discussed in this proposed rule. SBA invites comments on these alternatives as well as suggestions for other alternatives to this proposed change.
Regarding appraising haul costs for set-aside sales, SBA considered imposing haul cost adjustments for non-manufacturers. Because both manufacturers and non-manufacturers must agree to manufacture at least 70% of the sawtimber purchased through a set-aside sale at a small mill, SBA does not believe additional adjustments for non-manufacturers are warranted.
SBA also considered waiving the30/70 rule if no small mills are located within a reasonable distance of a set-aside sale. Such an alternative would allow small businesses to participate in the set-aside timber sales without requiring them to look for and use small mills. Although this approach would not increase hauling costs (and hence decrease receipts to the FS), since small businesses would not have to seek out and use small mills located further away, it could lead to inconsistent results. What might not be considered a “reasonable distance” for one sale might be so considered for another.
Instead of appraising 100% of the hauling to the nearest small business mill, SBA also considered appraising, when the nearest mill is a large business, 70% of the haul costs to the nearest small mill and 30% of the haul costs to the nearest large mill. The FS also suggested this as an alternative to SBA's proposal to avoid overstating the haul costs when the purchaser sells 30% of the sawtimber to the nearest largest mill. This alternative may accurately reflect the true costs to haul the timber if every winning bidder always sells 30% of sawtimber to the nearest large mill and 70% to the nearest small mill. However, SBA's reviews of all set-aside sales as well as those appraised to the nearest large mill do not support this. Majority of small manufacturers that purchase timber under the FS set-aside sales either use 100% of the purchase themselves or sell 100% to another small mill. More importantly, even a large proportion of non-manufacturer purchasers (
SBA also considered appraising to the nearest small mill only when that mill is located no more than 60 miles from the large mill which would be used as the appraisal point under the current rules. Data suggests that 62 miles is the median distance between a small mill and the large mill NFS used to appraise the historical set-aside sales (see Table 10, above). Historical sales data suggests that appraising to the nearest small mill only when that mill is located no more than 60 miles from the current appraisal point would affect 2.7% of set-aside sales and benefit approximately 35 small businesses annually (see Table 12). The estimated revenue losses to NFS will be reduced to about $0.53 million (or 0.4% of total) in Region 6 and $0.15 million (0.4% of total) in Region 5 if the appraisal is done to the nearest mill that is within 60 miles.
SBA did not propose this approach in the proposed regulatory text as the required step of determining whether a small mill is located within 60 miles of the nearest large mill could unnecessarily complicate the process. This approach would impact fewer set-aside sales, but it would also benefit fewer small businesses. Overall, the proposed change to appraise the hauling costs for the set-aside timber sales to the nearest small mill is consistent with SBA's statutory mandate to assist small businesses.
With respect to a potential policy amendment to include the stewardship sawtimber volume in the small business market share calculation, SBA considered including stewardship sawtimber only in those market areas where small businesses are particularly likely to be underrepresented if the stewardship sawtimber volume is excluded. Specifically, SBA is considering including the stewardship sawtimber volume only in market areas where small businesses purchase a large percentage of stewardship timber volume or where the stewardship timber volume represents a high percentage of Overall timber volume. However, the purpose of such a possible regulatory amendment is to more transparently and accurately reflect small business participation for purposes of calculating small business market share for set-aside triggers. SBA believes that it is necessary for fairness across the country to have a consistent policy that is not subject to interpretation. While SBA cannot estimate with certainty the actual outcome of the gains and losses among small and large businesses, it can identify several probable impacts. The historical data shows that the inclusion of IRTC and IRSC stewardship sawtimber volume could have a substantial negative or positive impact in the computation of small business market share in many of the 139 active market areas. SBA invites comments and data on how such a policy change would impact small businesses, the stumpage prices, number of set-aside sales, and FS receipts. SBA also welcomes comments on any potential impacts of reduced receipts to county payment programs or other areas affecting small business economic development.
SBA has conducted significant outreach to the affected public for many years. Between 1996 and 2002, SBA visited a number of small mills throughout the country to discuss the impact of stewardship contracting on the timber program and their ongoing operations. During this time period, SBA was also contacted by a small business timber association regarding the impact of stewardship contracting
For purposes of Executive Order 12988, SBA has drafted this proposed rule, to the extent practicable, in accordance with the standards set forth in sections 3(a) and 3(b)(2) of that Executive Order, to minimize litigation, eliminate ambiguity, and reduce burden. This rule has no preemptive or retroactive effect.
For the purpose of Executive Order 13132, SBA has determined that this 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. Therefore, SBA has determined that this proposed rule has no federalism implications warranting preparation of a federalism assessment.
For purposes of the Paperwork Reduction Act, 44 U.S.C. Chapter 35, SBA has determined that this proposed rule would not impose new reporting requirements. Stewardship sales will be tracked and recorded using the same method currently set forth in the Forest Service Manual (FSM 2400)—Commercial Timber Sales Manual (FSM 2430) and the Forest Service Handbook (FSH)—Timber Sale Preparation Handbook (FSH 2409.18). FS does not currently make any collections related to tracking this data and no additional information will be collected. The difference would be that the stewardship sawtimber volume would be included in the calculation. The appraisal point calculation performed by the FS will also be conducted using the same methodology with the exception of the mill location used in set-aside sales.
According to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601, when an agency issues a rulemaking, it must prepare a regulatory flexibility analysis to address the impact of the rule on small entities. In accordance with this requirement, SBA has prepared this Initial Regulatory Flexibility Analysis addressing the impact of this proposed rule and alternatives, including a possible policy change under consideration.
The proposal to appraise set-aside haul costs to the nearest small mill is necessary to accurately reflect the costs to eligible bidders.
Section 2(a) of the Small Business Act (15 U.S.C. 631(a)) provides that it is the declared policy of the Congress that the Government should aid, counsel, assist, and protect the interests of small business concerns in order to ensure that a fair proportion of the total sales of Government property be made to such enterprises. Section 15(a) of the Small Business Act (15 U.S.C. 644(a)) further provides that small business concerns shall receive any contract for the sale of Government property where it is in the interest of ensuring that a fair proportion of the total sales of Government property be made to small business concerns.
SBA estimates there are approximately 362 small business firms that may benefit from this rule. SBA estimates these firms will benefit to the extent small business timber sale set-aside bid prices are calculated using the actual hauling costs the bidders will incur. Approximately 5.3% of sales would be impacted, benefiting 65-70 small businesses. No large business would be impacted as they are not eligible to participate in small business set-aside timber sales.
SBA has determined that this rule does not impose additional reporting or recordkeeping requirements. Stewardship sales will be tracked and recorded using the same method currently set forth in the Forest Service Manual (FSM 2400)—Commercial Timber Sales Manual (FSM 2430) and the Forest Service Handbook (FSH)—Timber Sale Preparation Handbook (FSH 2409.18). FS does not currently make any collections related to tracking this data and no additional information will be collected. The appraisal point calculation performed by the FS will be conducted using the same methodology with the exception of the mill location used in set-aside sales.
We are not aware of any rules that duplicate, overlap or conflict with this rule. The FS Timber Sale Preparation Handbook would conflict with the proposed rule, if adopted as proposed. Concomitant with the SBA's rule, the FS would revise its directives, including FSH 2409.18.
Regarding appraising haul costs, SBA considered imposing haul cost adjustments for non-manufacturers. Because both manufacturers and non-manufacturers must agree to manufacture at least 70% of the sawtimber purchased through a set-aside sale at a small mill, SBA does not believe additional adjustments for non-manufacturers are warranted. SBA also considered waiving the 30/70 rule if no small mills are located within a reasonable distance of the sale. Such an
In addition, with respect to the 30/70 rule, instead of appraising 100% of the hauling to the nearest small mill, SBA also considered appraising, when the nearest mill is a large business, 70% of the haul costs to small mills and 30% of the haul costs to large mills. Although this approach may accurately reflect the true costs to haul the timber, SBA felt that it could unnecessarily complicate the process.
SBA also considered appraising to the nearest small mill only when that mill is located no more than 60 miles from the large mill which would be used as the appraisal point under the current rules. The median distance between a small mill and the large mill FS used to appraise historical set-aside sales is about 62 miles (see Table 10). Historical sales data suggests that appraising to the nearest small mill only when that mill is located no more than 60 miles from the current appraisal point would affect 2.7% of set-aside sales and benefit approximately 35 small businesses annually (see Table 10). SBA did not adopt this approach in the proposed regulatory text as the required step of determining whether a small mill is located within 60 miles of the nearest large mill could unnecessarily complicate the process. This approach would impact fewer set-aside sales, but it would also benefit fewer small businesses. Overall, the proposed change tis consistent with SBA's statutory mandate to assist small businesses.
As an alternative to a potential policy change, although not included in this proposed rule, to include the stewardship sawtimber volume in the small business market share calculation, SBA also is also considering to include the stewardship sawtimber volume in that calculation only in those market areas where small business participation is particularly likely to be underrepresented if stewardship sawtimber volume is excluded. Specifically, SBA is considering whether to include the stewardship sawtimber volume only in market areas where small businesses purchase a large percentage of stewardship contracting timber volume or where stewardship contracting timber volume represents a high percentage of overall timber volume. However, the purpose of such a regulatory amendment is to more accurately reflect small business participation rates for purposes of calculating the set-aside trigger point.
Administrative practice and procedure, Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, SBA proposes to amend part 121 of title 13 of the Code of Federal Regulations as follows:
15 U.S.C. 632, 634(b)(6), 662, and 694a(9).
The additions read as follows:
(a)
(g)
(h)
(d) In setting minimum bids for small business timber sale set-asides, the appraisal point to calculate the cost of transportation and hauling shall be the nearest small business manufacturing facility where the raw materials may be legally processed as determined by the U.S. Forest Service.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace designated as a surface area at Findlay Airport, Findlay, OH; and Class E airspace extending upward from 700 feet above the surface at Ashland County Airport, Ashland, OH; Lakefield Airport, Celina, OH; Pickaway County Memorial Airport, Circleville, OH; Ross County Airport, Chillicothe, OH; Fairfield County Airport, Lancaster, OH; Defiance Memorial Airport, Defiance, OH; Findlay Airport; Bluffton Airport, Findlay, OH; Butler County Airport-Hogan Field, Hamilton, OH; Lima Allen County Airport, Lima, OH; and Madison County Airport, London, OH. Decommissioning of non-directional radio beacon (NDB), cancellation of NDB approaches, and implementation of area navigation (RNAV) procedures have made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at these airports. Additionally, the geographic coordinates at Port Columbus International Airport; Findlay Airport; Ashland County Airport; Samaritan Hospital Heliport, Ashland, OH; Lakefield Airport; Ross County Airport; Defiance Regional Medical Center Heliport, Defiance, OH; Bluffton Airport; Lima Allen County Airport; and
Comments must be received on or before November 14, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826, or 1-800-647-5527. You must identify FAA Docket No. FAA-2016-8839; Airspace Docket No. 16-AGL-19, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace designated as a surface area at Findlay Airport, Findlay, OH; and Class E airspace extending upward from 700 feet above the surface at Ashland County Airport, Ashland, OH; Lakefield Airport, Celina, OH; Pickaway County Memorial Airport, Circleville, OH; Ross County Airport, Chillicothe, OH; Fairfield County Airport, Lancaster, OH; Defiance Memorial Airport, Defiance, OH; Findlay Airport; Bluffton Airport, Findlay, OH; Butler County Airport-Hogan Field, Hamilton, OH; Lima Allen County Airport, Lima, OH; and Madison County Airport, London, OH.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-8839/Airspace Docket No. 16-AGL-19.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying:
Class E airspace designated as a surface area at Findlay Airport, Findlay, OH, by removing the segments extending from the 4.3-mile radius 7.4 miles south and northeast of the airport, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;
And Class E airspace extending upward from 700 feet above the surface:
By updating the geographic coordinates of Ashland County Airport and noting the name change of Samaritan Hospital Heliport (formerly Samaritian Regional Health System), Ashland, OH, to coincide with the FAA's aeronautical database;
Within a 6.4-mile radius (reduced from a 7-mile radius) of Lakefield Airport, Celina, OH, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;
Within a 6.4-mile radius (reduced from a 10-mile radius) of Pickaway County Memorial Airport, Circleville, OH, with an extension from the 6.4-mile radius to 10.5 miles north of the airport, and within a 6.5-mile radius (reduced from a 9.1-mile radius) of Ross County Airport, Chillicothe, OH, and updating the geographic coordinates of the Ross County Airport to coincide with the FAA's aeronautical database;
By updating the geographic coordinates of Port Columbus International Airport, Columbus, OH,
Within a 6.8-mile radius (reduced from a 7.4-mile radius) of Findlay Airport, Findlay, OH, and within a 7.2-mile radius (increased from a 6.6-mile radius) of Bluffton Airport, Findlay, OH, and updating the geographic coordinates of these airports to coincide with the FAA's aeronautical database;
Within a 6.9-mile radius (increased from a 6.6-mile radius) of Butler County Regional Airport-Hogan Field, Hamilton, OH, and updating the name of the airport (formerly Butler County Regional Airport) to coincide with the FAA's aeronautical database;
By removing the Allen County VOR from the boundary description of Lima Allen County Airport, Lima, OH, and updating the name of St. Rita's Medical Center Heliport (formerly Saint Rita's Medical Center), Lima, OH, and updating the geographic and point in space coordinates of these airports to coincide with the FAA's aeronautical database;
And by removing the segment extending from the 6.4-mile radius 7.4 miles west of Madison County Airport, London, OH.
Airspace reconfiguration is necessary due to the decommissioning of NDBs, cancellation of NDB approaches, and implementation of RNAV procedures at these airports. Controlled airspace is necessary for the safety and management of standard instrument approach procedures for IFR operations at the airports.
Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Within a 4.3-mile radius of the Findlay Airport excluding that portion within a 1-mile radius of the Lutz Airport.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Ashland County Airport, and within a 6-mile radius of the Point in Space serving Samaritan Hospital Heliport, excluding that airspace which lies within the Mansfield, OH, Class E airspace area.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Lakefield Airport, excluding that airspace within the Wapakoneta, OH, Class E airspace area.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Pickaway County Memorial Airport, and within 2.9 miles either side of the 345° radial from the Yellow Bud VOR extending from the 6.4-mile radius to 10.5 miles north of the airport, and within a 6.5-mile radius of the Ross County Airport, excluding that airspace within the Waverly, OH, Class E Airspace area.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Port Columbus International Airport, and within 3.3 miles either side of the 094° bearing from Port Columbus International Airport extending from the 7-mile radius to 12.1 miles east of the airport, and within a 7-mile radius of Rickenbacker International Airport, and within 4 miles either side of the 045° bearing from Rickenbacker International Airport extending from the 7-mile radius to
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Defiance Memorial Airport, and within a 6-mile radius of the Point in Space serving Defiance Regional Medical Center Heliport.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Findlay Airport and within a 7.2-mile radius of Bluffton Airport.
That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Butler County Regional Airport-Hogan Field.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Lima Allen County Airport, and within a 6-mile radius of the Point in Space serving St. Rita's Medical Center Heliport, excluding the airspace within the Findlay, OH, Class E airspace area.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Madison County Airport.
Drug Enforcement Administration, Department of Justice.
Notice of intent.
The Administrator of the Drug Enforcement Administration is issuing this notice of intent to temporarily schedule the synthetic opioid,
September 27, 2016.
Michael J. Lewis, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
Any final order will be published in the
The Drug Enforcement Administration (DEA) implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purpose of this action. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.
Under the CSA, each controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the drug or other substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c), and the current list of all scheduled substances is published at 21 CFR part 1308.
Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if she finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).
Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1). The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.
Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into schedule I of the CSA.
To find that placing a substance temporarily into schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).
A substance meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).
Furanyl fentanyl was first described in 1986 in the patent literature. The scientific literature reported overdose events involving furanyl fentanyl, among other fentanyl analogues in 2015 in Sweden. No approved medical use has been identified for furanyl fentanyl, nor has it been approved by the FDA for human consumption. The recent identification of furanyl fentanyl in drug evidence and the identification of this substance in association with fatal overdose events indicate that this substance is being abused for its morphine-like properties.
Available data and information for furanyl fentanyl, summarized below, indicate that this synthetic opioid has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA's three-factor analysis is available in its entirety under the public docket of this action as a supporting document at
On October 1, 2014, the DEA implemented STARLiMS (a web-based, commercial laboratory information management system) to replace the System to Retrieve Information from Drug Evidence (STRIDE) as its laboratory drug evidence data system of record. DEA laboratory data submitted after September 30, 2014, are reposited in STARLiMS; data from STRIDE and STARLiMS were queried on July 11, 2016. STARLiMS registered 36 reports containing furanyl fentanyl, all reported in 2016, from California, Connecticut, Florida, Georgia, Maryland, Montana, New Jersey, New York, North Carolina, North Dakota, Tennessee, Utah, West Virginia, and the District of Columbia. The DEA is not aware of any laboratory identifications of furanyl fentanyl prior to 2015.
The National Forensic Laboratory Information System (NFLIS) is a national drug forensic laboratory reporting system that systematically collects results from drug chemistry analyses conducted by other federal, state and local forensic laboratories across the country. According to NFLIS, the first report of furanyl fentanyl at other federal, state, or local forensic laboratories was recorded in January 2016 in Ohio. From January through May 2016, a total of 80 submissions involving furanyl fentanyl were reported in NFLIS as a result of law enforcement encounters in Iowa, New Jersey, North Dakota, Ohio, and Wisconsin (query date: July 11, 2016).
Evidence suggests that the pattern of abuse of fentanyl analogues, including furanyl fentanyl, parallels that of heroin and prescription opioid analgesics. Seizures of furanyl fentanyl have been encountered in powder form. Furanyl fentanyl has also been encountered in drug paraphernalia commonly associated with heroin or other opioid abuse including glassine bags, and as a residue on spoons and bottle caps. Furanyl fentanyl has been encountered as a single substance as well as in combination with other substances of abuse, including heroin, fentanyl, butyryl fentanyl, and U-47700. Furanyl fentanyl has caused fatal overdoses, in which intravenous routes of administration are documented.
The DEA is currently aware of at least 128 confirmed fatalities associated with furanyl fentanyl. The information on these deaths occurring in 2015 and 2016 was collected from personal communications or toxicology and medical examiner reports received by the DEA. These deaths were reported from five states—Illinois (36), Maryland (41), New Jersey (1), North Carolina (49), and Ohio (1). STARLiMS and NFLIS have a total of 116 drug reports in which furanyl fentanyl was identified in drug exhibits submitted to forensic laboratories in 2016 from law enforcement encounters in California, Connecticut, Florida, Georgia, Iowa, Maryland, Montana, New Jersey, New York, North Carolina, North Dakota, Ohio, Tennessee, Utah, West Virginia, Wisconsin, and the District of Columbia. It is likely that the prevalence of furanyl fentanyl in opioid analgesic-related emergency room admissions and deaths is underreported as standard immunoassays may not differentiate this substance from fentanyl.
The population likely to abuse furanyl fentanyl overlaps with the population abusing prescription opioid analgesics and heroin. This is evidenced by the routes of drug administration and drug use history documented in furanyl fentanyl fatal overdose cases. Because abusers of furanyl fentanyl are likely to obtain this substance through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent, thus posing significant adverse health risks to the end user. Individuals who initiate (
Furanyl fentanyl exhibits pharmacological profiles similar to that of fentanyl and other µ-opioid receptor agonists. The toxic effects of furanyl fentanyl in humans are demonstrated by overdose fatalities involving this substance. Abusers of furanyl fentanyl may not know the origin, identity, or purity of this substance, thus posing significant adverse health risks when compared to abuse of pharmaceutical
Based on the documented case reports of overdose fatalities, the abuse of furanyl fentanyl leads to the same qualitative public health risks as heroin, fentanyl and other opioid analgesic substances. The public health risks attendant to the abuse of heroin and opioid analgesics are well established and have resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses.
Furanyl fentanyl has been associated with numerous fatalities. At least 128 confirmed overdose deaths involving furanyl fentanyl abuse have been reported throughout Illinois (36), Maryland (41), New Jersey (1), North Carolina (49), and Ohio (1) between 2015 and 2016.
In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the continued uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of furanyl fentanyl poses an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for furanyl fentanyl in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1) may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for furanyl fentanyl indicate that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, through a letter dated June 22, 2016, notified the Assistant Secretary of the DEA's intention to temporarily place this substance in schedule I.
This notice of intent initiates an expedited temporary scheduling action and provides the 30-day notice pursuant to section 201(h) of the CSA, 21 U.S.C. 811(h). In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule furanyl fentanyl in schedule I of the CSA, and finds that placement of this synthetic opioid substance into schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety.
Because the Administrator hereby finds that it is necessary to temporarily place furanyl fentanyl into schedule I to avoid an imminent hazard to the public safety, any subsequent final order temporarily scheduling this substance will be effective on the date of publication in the
The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).
Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for an expedited temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the
Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this notice of intent might be subject to section 553 of the APA, the Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.
Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of section 553 of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Administrator will take into consideration any comments submitted by the Assistant Secretary with regard to the proposed temporary scheduling order.
Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.
Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).
This action 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. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, the DEA proposes to amend 21 CFR part 1308 as follows:
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
(h) * * *
(21)
Agency for International Development (USAID).
Proposed rule.
This regulation prescribes the procedures and standards USAID follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The Act requires agencies to review their FOIA regulations, and no later than 180 days after enactment, directed the head of each agency to issue regulations on various elements of its FOIA program.
Submit comments on or before November 25, 2016.
Lynn P. Winston, Bureau for Management, Office of Management Services, Information Records Division, U.S. Agency for International Development, Washington, DC 20523-6601; tel. 202-712-0960, fax: 202-216-3070.
On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016. The Act addresses a range of procedural issues that affect agency FOIA regulations, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal, and that they provide dispute resolution services at various times throughout the FOIA process. The Act also, among other things, codifies the Department of Justice's “foreseeable harm” standard, amends Exemption 5, creates a new “Chief FOIA Officer Council,” and adds two new elements to agency Annual FOIA Reports.
Freedom of information.
For the reasons stated in the preamble, USAID proposes to revise 22 CFR part 212 to read as follows:
This subpart contains the rules that the United States Agency of International Development (hereinafter “USAID” or “the Agency”) follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The rules in this subpart should be read in conjunction with the text of the FOIA. Requests made by individuals for records about themselves under the Privacy Act of 1974, are processed under Subpart O. Definitions of FOIA terms are referenced in Subpart L. As a matter of policy, the Agency makes discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court.
(a) As a general policy, USAID follows a balanced approach in administering the FOIA. USAID recognizes the right of the public to access information in the possession of the Agency. USAID also recognizes the legitimate interests of
(b)
Information that is required to be published in the
(a) In accordance with this subpart, the Agency shall make the following materials available for public inspection and copying:
(1) Operational policy in USAID's Automated Directives System (ADS) which have been adopted by the Agency and are not published in the
(2) Administrative staff manuals and instructions to staff that affect any member of the public; and
(3) Copies of all records, regardless of form or format, which have been released pursuant to a FOIA request, and which have been requested three (3) or more times, or because of the nature of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. The Agency shall decide on a case by case basis whether records fall into this category, based on the following factors:
(i) Previous experience with similar records;
(ii) The particular characteristics of the records involved, including their nature and the type of information contained in them; and
(iii) The identity and number of requesters and whether there is widespread media, historical, academic, or commercial interest in the records.
(a)
(1)
(2)
(3)
(4)
(b)
(c)
(a) The Assistant Administrator for the Bureau for Management (M) serves as the USAID Chief FOIA Officer. The Chief FOIA Officer has overall responsibility for USAID compliance with the FOIA. The Chief FOIA Officer provides high level oversight and support to USAID's FOIA programs, and recommends adjustments to agency practices, personnel, and funding as may be necessary to improve FOIA administration, including through an annual Chief FOIA Officers Report submitted to the U.S. Department of Justice. The Chief FOIA Officer is responsible for offering training to agency staff regarding their FOIA
(b) The Bureau for Management, Office of Management Services, Information Records Division (M/MS/IRD) is the centralized FOIA office that receives, tracks, and processes all of USAID's FOIA requests to ensure transparency within the Agency.
(c) The Director, Bureau for Management, Office of Management Services (M/MS/OD) serves as the USAID FOIA Appeals Officer. The FOIA Appeals Officer is responsible for receiving and acting upon appeals from requesters whose initial FOIA requests for USAID records have been denied, in whole or in part.
(d) The Chief, Bureau for Management, Office of Management Services, Information and Records Division (M/MS/IRD) serves as USAID's FOIA Officer and FOIA Public Liaison. The FOIA Officer is responsible for program direction, original denials, and policy decisions required for effective implementation of USAID's FOIA program. The FOIA Public Liaison serves as a supervisory official to whom a FOIA requester can raise concerns about the services received, following an initial response from the FOIA staff. In addition, the FOIA Public Liaison assists, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes.
(e) The FOIA Team Leader is the Principal Operations Officer within USAID for the processing of FOIA requests and release determinations.
(f) The FOIA Specialist also known as the Government Information Specialist (GIS) is responsible for processing requests and preparing records for release when such releases are authorized by the FOIA. They do not have the authority to make denials, including “no records” responses.
(g) The General Counsel (GC), FOIA Backstop Attorney Advisor has responsibility for providing legal advice on all USAID matters regarding or resulting from the FOIA. Upon request, GC advises M/MS/IRD on release and denial decisions, and apprises the FOIA Office of all significant developments with respect to the FOIA.
(h) Each Attorney Advisor designated to provide legal advice to USAID Bureaus/Independent Offices (B/IOs) is responsible for providing, at M/MS/IRD's request, legal advice on FOIA requests assigned to those B/IOs.
(i) The designated FOIA Liaison Officer (FLO) in each USAID Bureau and Office is responsible for tasking and facilitating the collection of responsive records and monitoring the production of records to M/MS/IRD.
(a)
(b)
(c)
(1)
(2)
(ii) Whenever USAID refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information.
(e)
(f)
(g)
(h
(i
(a) Section 552(b) of the Freedom of Information Act contains nine exemptions to the mandatory disclosure of records. Information obtained by the Agency from any individual or organization, furnished in reliance on a provision for confidentiality authorized by applicable statute or regulation, will not be disclosed, to the extent it can be withheld under one of these exemptions. This section does not itself authorize the giving of any pledge of
(b) USAID shall:
(1) Withhold information under the FOIA only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption or disclosure is prohibited by law.
(2) Consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible.
(3) Take reasonable steps necessary to segregate and release nonexempt information.
Exemption 1 of the FOIA permits the withholding of matters specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and which are in fact properly classified under such Executive Order.
Exemption 2 of the FOIA covers matters related solely to USAID's internal personnel rules and practices of the Agency.
(a) Exemption 3 of the FOIA incorporates the various nondisclosure provisions that are contained in other federal statutes. Exemption 3 allows the withholding of information prohibited from disclosure by another statute only if one of two disjunctive requirements are met. The statute either:
(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or
(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(b) A statute thus falls within Exemption 3 coverage if it satisfies any one of its disjunctive requirements.
Exemption 4 of the FOIA protects trade secrets and commercial or financial information obtain for a person [that is] privilege or confidential.
(a) A trade secret has been narrowly defined by the courts under the FOIA as a commercially valuable plan, formula, process, or device that is used for making, preparing, compounding or processing trade commodities and that can be said to be the end product of either innovation or substantial effort.
(b) Confidential commercial or financial information is information that relates to business or trade that has been obtained from a person (other than a federal employee), and has not been shared or made available to the public.
Exemption 5 of the FOIA applies to inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the Agency. This includes internal advice, recommendations, and subjective evaluations, as opposed to factual matters contained in records that pertain to the decision-making process of an agency, whether within or among agencies. The three primary privileges incorporated in Exemption 5 are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege.
(a)
(b)
(c)
Exemption 6 of the FOIA applies to personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption protects the privacy interests of individuals by allowing USAID to withhold personal data kept in its files where there is an expectation of privacy. Once it has been determined that a personal privacy interest is threatened by a requested disclosure, the exemption requires agencies to strike a balance between an individual's privacy interest and the public's interest in disclosure.
Exemption 7 of the FOIA allows agencies to withhold records or information compiled for law enforcement purposes, but only to the extent that the production of such records would cause one of the following harms of Exemption 7 described below:
(a) Exemption (7)(A) allows the withholding of a law enforcement record that could reasonably be expected to interfere with enforcement proceedings.
(b) Exemption (7)(B) allows the withholding of law enforcement information that would deprive a person of a right to a fair trial or an impartial adjudication.
(c) Exemption (7)(C) recognizes that individuals have a privacy interest in information maintained in law enforcement files. If the disclosure of information could reasonably be expected to constitute an unwarranted invasion of personal privacy, the information may be exempt from disclosure.
(d) Exemption (7)(D) protects the identity of confidential sources. Information that could reasonably be expected to reveal the identity of a confidential source is exempt. A confidential source can include a state, local, or foreign agency or authority, or a private institution that furnished information on a confidential basis. In addition, the exemption protects information furnished by a confidential source if the data was compiled by a criminal law enforcement authority during a criminal investigation.
(e) Exemption (7)(E) protects from disclosure information that would reveal techniques and procedures for law enforcement investigations or prosecutions or that would disclose guidelines for law enforcement investigations or prosecutions if disclosure of the information could reasonably be expected to risk circumvention of the law.
(f) Exemption (7)(F) protects law enforcement information that could reasonably be expected to endanger the life or physical safety of any individual.
Exemption 8 of the FOIA protects information that is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions (such as Federal Deposit Insurance Corporation (FDIC), the Federal Reserve, or similar agencies).
Exemption 9 of the FOIA covers geological and geophysical information and data, including maps, concerning wells.
(a) The FOIA contains three special protection provisions that expressly authorize federal law enforcement agencies, for especially sensitive records under certain specified circumstances, to treat the records as not subject to the FOIA. USAID may not be required to confirm the existence of these categories of records. If these records are requested, USAID may respond that there are no records responsive to the request. However, these exclusions do not broaden the authority of the USAID to withhold documents from the public. The exclusions are only applicable to information that is otherwise exempt from disclosure.
(1)
(A) The investigation in question must involve a possible violation of criminal law.
(B) There must be reason to believe that the subject of the investigation is not already aware that the investigation is underway.
(C) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.
(ii) USAID may respond to a FOIA request for investigatory records as if the records are not subject to the requirements of the FOIA when all of these conditions exist. In other words, the USAID response does not have to reveal that it is conducting an investigation.
(2)
(3)
(b) Requesters who believe that records were improperly withheld because of the exclusions can seek judicial review by filing suit in Federal District Court.
(a)
(b)
(2) The Agency may establish as many processing tracks as appropriate; processing within each track shall ordinarily be based on a “first-in, first-out” concept, and rank-ordered by the date of receipt of the request.
(3) The Agency may provide a requester whose request does not qualify for the fastest track an opportunity to limit the scope of the request in order to qualify for a faster track. This multitrack processing system does not lessen agency responsibility to exercise due diligence in processing requests in the most expeditious manner possible.
(4) The Agency shall process requests in each track on a “first-in, first-out” basis, unless there are unusual circumstances as set forth in paragraph (c) of this section, or the requester is entitled to expedited processing as set forth paragraph (e) of this section.
(c)
(d)
(e)
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence.
(2) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be
(3) The Agency shall notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(2)
(b)
(c)
(i) The requested information has been designated in good faith by the business submitter as information considered protected from disclosure under Exemption 4; or
(ii) The Agency has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d)
(1) The Agency determines that the information is exempt under the FOIA;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the business submitter appears obviously frivolous, except that, in such a case, the Agency shall give the business submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e)
(i) Provide the Agency with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the business submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.
(ii) Designate by appropriate markings, either at the time a record is submitted to the Agency or within a reasonable period time thereafter, those portions of the record which it deems to contain confidential commercial
(2) A business submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the Agency after the date of any disclosure decision shall not be considered by the Agency. Any information provided by a business submitter under this subpart may itself be subject to disclosure under the FOIA.
(f)
(g)
(1) A statement of the reasons why each of the business submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h)
USAID must inform the requester of the reasons for the denial and the requester's right to appeal the denial to the FOIA Appeals Officer whenever a FOIA request is denied.
(a)
(b)
(c)
(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(d))
(e)
(f)
The Office of Government Information Services of the National Archives and Records Administration (OGIS) is a Freedom of Information Act (FOIA) resource for the public and the government. Congress has charged OGIS with reviewing FOIA policies, procedures and compliance of Federal agencies and to recommend changes to the FOIA. OGIS' mission also includes resolving FOIA disputes between Federal agencies and requesters. In the Administrative appeal process, OGIS works as a non-exclusive alternative to litigation.
When USAID makes a determination on a request, the Agency shall offer the services of the FOIA Public Liaison, and will notify requesters of the mediation services provided by OGIS. Specifically, USAID will include in the Agency's notification to the requester;
(a) The right of the requester to seek assistance from the FOIA Public Liaison of the Agency, and in the case of an adverse determination;
(b) The right of the requester to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services.
The Agency shall preserve all correspondence relating to the requests it receives under this subpart, and all records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to Title 44 of the United States Code, and appropriate records disposition authority granted by NARA. Under no circumstances shall records be sent to a Federal Records Center, transferred to the permanent custody of NARA, or destroyed while they are the subject of a pending request, appeal, or civil action under the FOIA.
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(1)
(2)
(3)
(d)
(2) When the Agency determines that unusual circumstances apply to the processing of a request, and the Agency has provided timely written notice to the requester, the delay is excused for an additional 10 days. If the Agency fails to comply with the extended time limit, it may not charge search fees (or for requesters with preferred fee status, may not charge duplication fees).
(i)
(ii)
(3) If the Agency fails to comply with the time limits in which to respond to a request, and if no unusual or exceptional circumstances, as those terms are defined by the FOIA, apply to the processing of the request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees.
(4) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(5) Except for requesters seeking records for a commercial use, the Agency shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(6) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.
(e)
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Agency is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the Agency estimates that the total fee will exceed that amount, the Agency shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The Agency shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) The Agency shall make available their FOIA Public Liaison or other FOIA Specialists to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(f)
(g)
(h)
(i)
(2) When the Agency determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The Agency may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to the agency within 30 calendar days of the billing date, the Agency may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the Agency may require that the requester make an advance payment of the full amount of any anticipated fee before the Agency begins to process a new request or continues to process a pending request or any pending appeal. If the Agency has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which the Agency requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the Agency's fee determination, the request will be closed.
(j)
(k)
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(2) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government, the Agency shall consider all four of the following factors:
(i) The subject of the request must concern identifiable operations or activities of the Federal Government, with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not contribute to such understanding where nothing new would be added to the public's understanding.
(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent. However, the Agency shall not make value judgments about whether the information at issue is “important” enough to be made public.
(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Agency shall consider the following factors:
(i) The Agency shall identify any commercial interest of the requester, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(ii) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure. The Agency ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(5) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Agency and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received. A requester may appeal the denial of a fee waiver.
(a) The following specific fees are charged for services rendered:
Search costs will be assessed even though no records may be found or even if, after review, there is no disclosure or records.
(b) If copies of records are provided in other than paper format (such as on microfiche, video tape, or as electronic data files), or other than first-class mail is requested or required, the requester is charged the actual cost of providing these additional services.
The FOIA requires each federal agency to submit an Annual Report to the Attorney General each year. The Annual Report contains detailed statistics on the numbers of requests received and processed by the Agency, the time taken to respond, and the outcome of each request, as well as many other vital statistics regarding the administration of the FOIA.
The Attorney General's 2009 FOIA Guidelines require the Chief FOIA Officer for each federal agency to submit a report to the Attorney General containing a detailed description of the steps taken by the Agency to improve FOIA compliance and transparency. These reports contain details of FOIA administration, as well as the steps taken to implement the Attorney General's 2009 FOIA Guidelines during each reporting year.
As used in this part:
Nothing in this subpart shall be construed to entitle any person, as a right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
This subpart contains the rules that the USAID follows under the Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules should be read together with the text of the statute, which provides additional information about records maintained on individuals. The rules in this subpart apply to all records in systems of records maintained by the agency 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 agency. If any records retrieved pursuant to an access request under the PA are found to be exempt from access under that Act, they will be processed for possible disclosure under the FOIA, as amended. No fees shall be charged for access to or amendment of PA records.
As used in this subpart, the following definitions shall apply:
(a) Individual means a citizen or a legal permanent resident alien (LPR) of the United States.
(b) Maintain includes maintain, collect, use, or disseminate.
(c) Record means any item, collection, or grouping of information about an individual that is maintained by the agency and that contains the individual's name or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or photograph.
(d) System of records means a group of any records under the control of the agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to an individual.
(a)
(b)
(c)
(d)
(1)
(2)
(3)
(e)
(f)
(g)
(a) An individual has the right to request that the Agency amend a record pertaining to the individual that the individual believes is not accurate, relevant, timely, or complete.
(b) Requests to amend records must be in writing and mailed or delivered to the Bureau for Management, Management Services, Information Records Division at the address given in § 212.7, with ATTENTION: PRIVACY ACT AMENDMENT REQUEST written on the envelope. IRD will coordinate the review of the request with the appropriate offices of the Agency. The Agency will require verification of personal identity before it will initiate action to amend a record. Amendment requests should contain, at a minimum, identifying information needed to locate the record in question, a description of the specific correction requested, and an explanation of why the existing record is not accurate, relevant, timely, or complete. The request must be signed, and the requester's signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. The requester should submit as much pertinent documentation, other information, and explanation as possible to support the request for amendment.
(c) All requests for amendments to records shall be acknowledged within 10 working days.
(d) In reviewing a record in response to a request to amend, the Agency shall review the record to determine if it is accurate, relevant, timely, and complete.
(e) If the Agency agrees with an individual's request to amend a record, it shall:
(1) Advise the individual in writing of its decision;
(2) Amend the record accordingly; and
(3) If an accounting of disclosure has been made, advise all previous recipients of the record of the amendment and its substance.
(f) If the Agency denies an individual's request to amend a record, it shall advise the individual in writing of its decision and the reason for the refusal, and the procedures for the individual to request further review. See § 171.25 of this chapter.
(a)
(b)
(1) Disclosures made to employees within the Agency who have a need for the record in the performance of their duties; and
(2) Disclosures required under the FOIA.
(a) If the Agency denies a request for amendment of such records, the requester shall be informed of the reason for the denial and of the right to appeal the denial to the Appeals Review Panel. Any such appeal must be postmarked within 60 working days of the date of the Agency's denial letter and sent to: Appeals Officer, Bureau for Management, Office of Management Services at the address given in § 212.19.
(b) Appellants should submit an administrative appeal of any denial, in whole or in part, of a request for access to the PA at the above address. The Agency will assign a tracking number to the appeal.
(c) The Appeals Review Panel will decide appeals from denials of PA amendment requests within 30 business days, unless the Panel extends that period for good cause shown, from the date when it is received by the Panel.
(d) Appeals Review Panel decisions will be made in writing, and appellants will receive notification of the decision. A reversal will result in reprocessing of the request in accordance with that decision. An affirmance will include a brief statement of the reason for the affirmance and will inform the appellant that the decision of the Panel represents the final decision of the Department and of the right to seek judicial review of the Panel's decision, when applicable.
(e) If the Panel's decision is that a record shall be amended in accordance with the appellant's request, the Chairman shall direct the office responsible for the record to amend the record, advise all previous recipients of the record of the amendment and its substance (if an accounting of previous disclosures has been made), and so advise the individual in writing.
(f) If the Panel's decision is that the amendment request is denied, in addition to the notification required by paragraph (d) of this section, the Chairman shall advise the appellant:
(1) Of the right to file a concise Statement of Disagreement stating the reasons for disagreement with the decision of the Department;
(2) Of the procedures for filing the Statement of Disagreement;
(3) That any Statement of Disagreement that is filed will be made available to anyone to whom the record is subsequently disclosed, together with, at the discretion of the Agency, a brief statement by the Agency summarizing its reasons for refusing to amend the record;
(4) That prior recipients of the disputed record will be provided a copy of any statement of disagreement, to the extent that an accounting of disclosures was maintained.
(g) If the appellant files a Statement of Disagreement under paragraph (f) of this section, the Agency will clearly annotate the record so that the fact that the record is disputed is apparent to anyone who may subsequently access the record. When the disputed record is subsequently disclosed, the Agency will note the dispute and provide a copy of the Statement of Disagreement. The Agency may also include a brief summary of the reasons for not amending the record. Copies of the Agency's statement shall be treated as part of the individual's record for granting access; however, it will not be subject to amendment by an individual under this part.
(a) Pursuant to 5 U.S.C. 552a(k), the Director or the Administrator may, where there is a compelling reason to do so, exempt a system of records, from any of the provisions of subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f) of the Act if a system of records is:
(1) Subject to the provisions of 5 U.S.C. 552(b)(1); (2) Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of the Act: Provided, however, That if any individual is denied any right, privilege, or benefit to which he or she would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(2) Maintained in connection with providing protective services to the President of the United States or other individuals pursuant to 18 U.S.C. 3056;
(3) Required by statute to be maintained and used solely as statistical records;
(4) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(5) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service, the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or
(6) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
(b) Each notice of a system of records that is the subject of an exemption under 5 U.S.C. 552a(k) will include a statement that the system has been exempted, the reasons therefore, and a reference to the
(c) The systems of records to be exempted under section (k) of the Act, the provisions of the Act from which they are being exempted, and the justification for the exemptions, are set forth below:
(1) Criminal Law Enforcement Records. If the 5 U.S.C. 552a(j)(2) exemption claimed under paragraph (c) of (216 22 CFR Ch. II-§ 215.13) and on the notice of systems of records to be published in the
(2) Personnel Security and Suitability Investigatory Records. This system is exempt under U.S.C. 552a(k)(1), (k)(2), and (k)(5) from the provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4); (G); (H); (I); and (f). These exemptions are claimed to protect the materials required by executive order to be kept secret in the interest of national defense or foreign policy, to prevent subjects of investigation from frustrating the investigatory process, to insure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information, to avoid endangering those sources and, ultimately, to facilitate proper selection or continuance of the best applicants or persons for a given position or contract. Special note is made of the limitation on the extent to which this exemption may be asserted.
(3) Litigation Records. This system is exempt under 5 U.S.C. 552(k)(1), (k)(2), and (k)(5) from the provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4) (G), (H), (I); and (f). These exemptions are claimed to protect the materials required by executive order to be kept secret in the interest of national defense or foreign policy, to prevent subjects of investigation from frustrating the investigatory process, to insure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information.
(4) Employee Equal Employment Opportunity Complaint Investigatory Records. This system is exempt under 5 U.S.C. 552a(k)(1) and (k)(2) from the provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4) (G), (H), (I); and (f). These exemptions are claimed to protect the materials required by executive order to be kept secret in the interest of national defense or foreign policy, to prevent subjects of investigation from frustrating the investigatory process, to insure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information, to avoid endangering these sources.
(5) The following systems of records are exempt under 5 U.S.C. 552a(k)(5) from the provision of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4) (G), (H), (I); and (f): (i) Employee Conduct and Discipline Records. (ii) Employee Relations Records.
NOTE TO PARAGRAPH (c)(5): This exemption is claimed for these systems of records to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information, to avoid endangering these sources and, ultimately, to facilitate proper selection or continuance of the best applicants or persons for a given position or contract. Special note is made of the limitation on the extent to which this exemption may be asserted. The existence and general character of the information exempted will be made known to the individual to whom it pertains.
(6) Partner Vetting System. This system is exempt under 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5) from the provision of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f). These exemptions are claimed to protect the materials required by executive order to be kept secret in the interest of national defense or foreign policy, to prevent subjects of investigation from frustrating the investigatory process, to insure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information, to avoid endangering these sources, and to facilitate proper selection or continuance of the best applicants or persons for a given position or contract.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to determine that the Houston-Galveston-Brazoria ozone nonattainment area (HGB area) failed to attain the 2008 8hour ozone national ambient air quality standards (NAAQS) by the applicable attainment deadline of July 20, 2016, and thus is classified by operation of law as “Moderate”. In this action, EPA is also proposing January 1, 2017 as the deadline by which Texas must submit to the EPA the State Implementation Plan (SIP) revisions that meet the CAA statutory and regulatory requirements that apply to 2008 ozone NAAQS nonattainment areas reclassified as Moderate.
Written comments must be received on or before October 27, 2016.
Submit your comments, identified by Docket No. EPA-R06-OAR-2016-0275, at
Ms. Nevine Salem, (214) 665-7222,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
In 2008 we revised the 8-hour ozone primary and secondary NAAQS to a level of 0.075 parts per million (ppm) annual fourth-highest daily maximum 8-hour average concentration, averaged over three years to provide increased protection of public health and the environment (73 FR 16436, March 27, 2008). The HGB area was classified as a “Marginal” ozone nonattainment area for the 2008 8-hour ozone NAAQS and initially given an attainment date of no later than December 31, 2015 (77 FR 30088, May 21, 2012). The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties.
On December 23, 2014, the D.C. Circuit issued a decision rejecting, among other things, our attainment deadlines for the 2008 ozone nonattainment areas, finding that we did not have statutory authority under the CAA to extend those deadlines to the end of the calendar year.
Classifications for ozone nonattainment areas range from “Marginal” (for areas with monitored ozone levels just exceeding the level of the NAAQS) to “Extreme” (for areas with monitored ozone levels well above the levels of the NAAQS). CAA section 182 stipulates the specific attainment planning and additional requirements that apply to each ozone nonattainment area based on its classification. CAA section 182, as interpreted by the EPA's implementation regulations at 40 CFR 51.1108-1117, also establishes the timeframes by which air agencies must submit SIP revisions to address the applicable attainment planning elements, and the timeframes by which ozone nonattainment areas must attain the relevant NAAQS.
CAA section 181(b)(2) requires us to (1) determine whether the HGB area attained the 2008 ozone NAAQS by the attainment deadline, (2) reclassify the HGB area if the attainment deadline is not met, and (3) publish a
Ozone air quality data from monitoring sites in the HGB area is presented in Table 1. This data has been quality assured and certified by the State of Texas. The data is available in the EPA Air Quality System (AQS) database and also in the electronic docket for this action. The Manvel monitoring site (48-039-1004) recorded the highest 2013-2015 design value (0.080 ppm), which is also the DV for the area. Although the HGB air trends show overall progress in reducing ozone concentrations over the past 15 years, the HGB area is not eligible for an additional one-year attainment date extension
CAA section 181(b)(2)(A) provides that a marginal nonattainment area shall be reclassified by operation of law upon a determination by the EPA that such area failed to attain the relevant NAAQS by the applicable attainment date. Based on quality-assured ozone monitoring data from 2013-2015, as shown in Table 1, the new classification applicable to the HGB area would be the next higher classification of “moderate” under the CAA statutory scheme. Moderate nonattainment areas are required to attain the standard “as expeditiously as practicable” but no later than six years after the initial designation as nonattainment (which, in the case of the HGB area, is July 20, 2018). The attainment deadlines associated with each classification are prescribed by the CAA and codified at 40 CFR 51.1103.
In determining the deadline for the Moderate area SIP revisions, the EPA has discretion, per CAA section 182(i), to adjust the statutory deadline for submitting required SIP revisions for reclassified Moderate ozone nonattainment areas. CAA section 182(i) requires that reclassified areas meet the applicable plan submission requirements “according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” Under the Moderate area plan requirements of CAA section 182(b)(1) and 40 CFR 51.1108, states with ozone nonattainment areas classified as Moderate are provided 3 years (or 36 months) from the date of designation to submit a SIP revision complying with the Moderate ozone nonattainment plan requirements. For areas designated nonattainment for the 2008 ozone NAAQS and originally classified as Moderate, that deadline was July 20, 2015, a date that has already passed.
The EPA, therefore, interprets CAA section 182(i) as providing the authority to adjust the applicable deadlines for the HGB area “as necessary or appropriate to assure consistency among the required submissions.” In determining a SIP submission deadline, we note that pursuant to 40 CFR 51.1108(d), for each nonattainment area the state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season. The attainment year ozone season is the ozone season immediately preceding a nonattainment area's attainment date, in this case it is the 2017 ozone season (40 CFR 51.1100(h)). The ozone season is the ozone monitoring season as defined in 40 CFR part 58, appendix D, section 4.1, table D-3. For the purpose of this HGB area reclassification, January 1st is the beginning of the ozone monitoring season. Therefore, the beginning of the Moderate attainment year ozone season for the HGB area is January 1, 2017. This date is also the latest date that would be compatible with the deadline for Moderate area reasonably available control technology (RACT) to be in place (
Accordingly, the EPA proposes that the required SIP revisions be submitted by Texas no later than January 1, 2017. This deadline also calls for implementation of applicable controls no later than January 1, 2017. Texas must submit a Moderate Area SIP that addresses the CAA's Moderate nonattainment area requirements as described in 40 CFR 51.1100. Those requirements include, (1) An attainment demonstration (CAA section 182(b) and 40 CFR 51.1108); (2) reasonable further progress (RFP) reductions in volatile organic compound (VOC) and nitrogen oxide (NO
Should the State's analysis find that the area will not meet the Moderate area attainment deadline of July 20, 2018, the State can seek a voluntary reclassification to a higher classification category, which would provide additional time for attainment. We believe that voluntary reclassification for areas that are not likely to attain by their attainment date is an appropriate action that will facilitate focus on developing the attainment plans required (80 FR 12264, 12268, March 6, 2015). A voluntary reclassification to the Serious classification would set an attainment deadline of July 20, 2021 (40 CFR 51.1103).
In accordance with CAA 181(b)(2), we are proposing to determine that the HGB ozone nonattainment area failed to attain the 2008 ozone NAAQS by the applicable attainment deadline of July 20, 2016, and to reclassify the area as Moderate. We are also proposing that Texas must submit to us the SIP revisions to address the Moderate ozone nonattainment area requirements of the CAA by January 1, 2017.
The EPA acknowledges that for the HGB area reclassified from Marginal to Moderate nonattainment, meeting the SIP submittal deadline of January 1, 2017 may be challenging. The EPA is working closely with TCEQ to support their SIP submittal in a timely manner. As discussed previously in section II of this notice, January 1, 2017 is a SIP submission deadline that is consistent for all Marginal nonattainment areas that are reclassified to Moderate for the 2008 ozone NAAQS, and is consistent with the timeframes in the CAA as codified in the EPA's implementing regulations.
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget for review.
This proposed 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 action merely proposes to determine that the HGB area failed to meet an ozone NAAQS attainment deadline, reclassify the area and set the date when a revised SIP is due to EPA.
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 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.
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 proposes to determine that the HGB area failed to meet an ozone NAAQS attainment deadline, reclassify the area and set the date when a revised SIP is due to EPA.
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. This action merely proposes to determine that the HGB area failed to meet an ozone NAAQS attainment deadline, reclassify the area and set the date when a revised SIP is due to EPA.
Environmental protection, Air pollution control.
42 U.S.C. 7401
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of meeting; request for comment.
FMCSA announces it will hold a roundtable discussion on October 31, 2016, as a follow-up to its August 31, 2016, notice of intent concerning the petitions for reconsideration of the final rule, titled “Lease and Interchange of Vehicles; Motor Carriers of Passengers,” which published May 27, 2015. The meeting will be open to the public. Individuals with diverse experience, expertise, and perspectives are encouraged to attend. If all comments have been exhausted before the end of the session, the session may conclude early.
The roundtable discussion will be held on Monday, October 31, 2016, from 9:30 a.m. to 4:30 p.m., Eastern Time (ET) at the U.S. Department of Transportation, Media Center, 1200 New Jersey Avenue SE., Ground Floor, Washington, DC 20590. The entire proceedings will be public.
You may submit comments bearing the Federal Docket Management System Docket ID (FMCSA-2012-0103) 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
Ms. Loretta G. Bitner, (202) 385-2428,
On August 31, 2016, FMCSA published a notice of intent concerning the lease and interchange of passenger-carrying commercial motor vehicles (CMVs) (81 FR 59951). The purpose of the notice of intent was to inform the public about the Agency's decision concerning the 37 petitions for reconsideration which have been filed in the public docket referenced above. Upon review of these petitions, FMCSA concluded that some have merit. FMCSA, therefore, extended the compliance date of the final rule from January 1, 2017, to January 1, 2018 (82 FR 13998; March 16, 2016), to allow the Agency time to complete any rulemaking action to amend the rule where necessary.
FMCSA plans to issue a rulemaking notice to address the four areas of concern in the August 31, 2016, notice of intent:
(1) Exclusion of “chartering” (
(2) Amending the CMV requirements for the location of temporary markings for leased/interchanged vehicles;
(3) Changing the requirement that carriers notify customers within 24 hours when they subcontract service to other carriers; and
(4) Expanding the 48-hour delay in preparing a lease to include emergencies when passengers are not actually on board a bus.
The Agency believes that less burdensome regulatory alternatives that would not adversely impact safety could be adopted before the January 1, 2018, compliance date.
FMCSA will hold a public roundtable on Monday, October 31, 2016, to discuss these four issue areas. The public will have an opportunity to speak about these issues and provide the Agency with information on how to address them. All public comments will be placed in the docket of this rulemaking. The agenda for this meeting will be posted on the FMCSA Web site
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advanced notice of proposed rulemaking; consideration of a control date.
This proposed rule announces the establishment of a control date of June 15, 2016. The South Atlantic Fishery Management Council (Council) may use this control date if it decides to create restrictions limiting participation in the exclusive economic zone for the Federal charter vessel/headboat (for-hire) component of the recreational sectors of the coastal migratory pelagics fishery in the Atlantic, dolphin and wahoo fishery in the Atlantic, and snapper-grouper fishery in the South Atlantic. Anyone obtaining a Federal for-hire permit for these recreational sectors after the control date will not be assured of future access should a management regime that limits participation in the sector be prepared and implemented. This announcement is intended, in part, to promote awareness of the potential eligibility criteria for future access so as to discourage speculative entry into the Federal for-hire component of the recreational sectors of the Atlantic coastal migratory pelagics, Atlantic dolphin and wahoo, or the South Atlantic snapper-grouper fisheries, while the Council and NMFS consider whether and how access to these recreational sector components should be managed. NMFS invites comments on the establishment of this control date.
Written comments must be received by October 27, 2016.
You may submit comments identified by “NOAA-NMFS-2016-0121” by either of the following methods:
•
•
Mary Janine Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, or email:
The coastal migratory pelagics fishery in the Atlantic is managed under the Fishery Management Plan for Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic Region (CMP FMP). The dolphin and wahoo fishery in the Atlantic is managed under the FMP for the Dolphin and Wahoo Fishery off the Atlantic States (Dolphin and Wahoo FMP). The snapper-grouper fishery in the South Atlantic is managed under the FMP for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-Grouper FMP). The CMP FMP was prepared jointly by the Gulf of Mexico and South Atlantic Fishery Management Councils. The Dolphin and Wahoo and Snapper-Grouper FMPs were prepared by the Council. The FMPs are implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) through regulations at 50 CFR part 622.
The Council voted at the June 2016 meeting to establish a control date of June 15, 2016, for the Federal for-hire component of the recreational sectors of the Atlantic coastal migratory pelagics, Atlantic dolphin and wahoo, and South Atlantic snapper-grouper fisheries. The Federal charter vessel/headboat permit for these recreational for-hire components is currently open access, available to anyone with a valid vessel registration. The control date enables the Council to inform current and potential participants that it is considering whether to create restrictions that limit fishery participation in the Federal for-hire component of the recreational sectors for Atlantic coastal migratory pelagics, Atlantic dolphin and wahoo, and South Atlantic snapper-grouper.
This proposed rule informs current and potential fishery participants in the Federal for-hire component of the recreational sectors for Atlantic coastal migratory pelagics, Atlantic dolphin and wahoo, and South Atlantic snapper-grouper that begin participating after June 15, 2016, they may not be ensured participation under future management of these fisheries. If the Council decides to amend the FMPs to restrict participation in the Federal for-hire component of the recreational sectors of the Atlantic coastal migratory pelagics, Atlantic dolphin and wahoo, or South Atlantic snapper-grouper fisheries in relation to this control date, an analysis of the specific administrative, biological, economic, and social effects will be prepared at that time.
Publication of the control date in the
Fishermen are not guaranteed future participation in a fishery, sector, or component within a sector regardless of when they obtained their permits or their level of participation in the fishery, sector, or component within a sector before or after the control date under consideration. The Council subsequently may choose a different control date or they may choose different management approaches without using a control date. The Council also may choose to take no further action to control entry or access to the Federal for-hire component of the recreational sectors of the Atlantic coastal migratory pelagics, Atlantic dolphin and wahoo, or South Atlantic snapper-grouper fisheries, in which case the control date may be rescinded.
This notification also gives the public notice that interested participants should locate and preserve records that substantiate and verify their participation in the Federal for-hire component of the recreational sectors of the Atlantic coastal migratory pelagics, Atlantic dolphin and wahoo, or South Atlantic snapper-grouper fisheries.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule, request for comments.
NMFS proposes regulations to implement measures in Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The Mid-Atlantic Fishery Management Council developed Amendment 16 to protect deep-sea corals from the impacts of commercial fishing gear in the Mid-Atlantic. Amendment 16 management measures include: A deep-sea coral protection area; a prohibition on the use of bottom-tending commercial fishing gear within the deep-sea coral protection area; an exemption for American lobster and deep-sea red crab pots and traps from the gear prohibition; a vessel monitoring system requirement for limited access
Public comments must be received by November 1, 2016.
Copies of supporting documents used by the Mid-Atlantic Fishery Management Council, including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901, telephone (302) 674-2331. The EA/RIR/IRFA is also accessible online at
You may submit comments, identified by NOAA-NMFS-2016-0086, by either of the following methods:
•
•
Peter Christopher, Supervisory Fishery
On January 16, 2013, the Council published a Notice of Intent (NOI) to prepare an Environmental Impact Statement (78 FR 3401) for Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP) to consider measures to protect deep-sea corals from the impacts of commercial fishing gear in the Mid-Atlantic. The Council conducted scoping meetings during February 2013 to gather public comments on these issues. Following further development of Amendment 16 through 2013 and 2014, the Council conducted public hearings in January 2015. Following public hearings, and with disagreement about the boundaries of the various alternatives, the Council held a workshop with various stakeholders on April 29-30, 2015, to further refine the deep-sea coral area boundaries. The workshop was an example of effective collaboration among fishery managers, the fishing industry, environmental organizations, and the public to develop management recommendations with widespread support. The Council adopted Amendment 16 on June 10, 2015, and submitted Amendment 16 on August 15, 2016, for final review by NMFS, acting on behalf of the Secretary of Commerce.
The Council developed the action, and the measures described in this notice, under the discretionary provisions for deep-sea coral protection in section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This provision gives the Regional Fishery Management Councils the authority to:
(A) Designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear;
(B) Designate such zones in areas where deep-sea corals are identified under section 408 (this section describes the deep-sea coral research and technology program), to protect deep-sea corals from physical damage from fishing gear or to prevent loss or damage to such fishing gear from interactions with deep-sea corals, after considering long-term sustainable uses of fishery resources in such areas; and
(C) With respect to any closure of an area under the Magnuson-Stevens Act that prohibits all fishing, ensure that such closure:
(i) Is based on the best scientific information available;
(ii) Includes criteria to assess the conservation benefit of the closed area;
(iii) Establishes a timetable for review of the closed area's performance that is consistent with the purposes of the closed area; and
(iv) Is based on an assessment of the benefits and impacts of the closure, including its size, in relation to other management measures (either alone or in combination with such measures), including the benefits and impacts of limiting access to: Users of the area, overall fishing activity, fishery science, and fishery and marine conservation.
Consistent with these provisions, the Council proposed the measures in Amendment 16 to balance the impacts of measures implemented under this discretionary authority with the management objectives of the Mackerel, Squid, and Butterfish FMP and the value of potentially affected commercial fisheries.
Amendment 16 would establish a deep-sea coral protection area that would be in Mid-Atlantic waters only. It would consist of a broad zone that would start at a depth contour of approximately 450 meters (m) and extend to the U.S. Exclusive Economic Zone (EEZ) boundary, and to the north and south to the boundaries of the Mid-Atlantic waters (as defined in the Magnuson-Stevens Act). In addition, the deep-sea coral protection area would include 15 discrete zones that outline deep-sea canyons on the continental shelf in Mid-Atlantic waters. The deep-sea coral area, including both broad and discrete zones, would be one continuous area.
The Council proposed the broad coral zone designation to be precautionary in nature and to freeze the footprint of fishing to protect corals from future expansion of fishing effort into deeper waters. The broad coral zone would be designated with the landward boundary drawn between the 400 m contour as a hard landward boundary and the 500 m contour as a hard seaward boundary. The line created using this technique would focus on the center point (450 m) between the hard landward and seaward boundaries, with a 50-m depth tolerance in either direction as a guide used to draw this line as straight as possible without crossing the hard boundaries. In areas where there is conflict or overlap between this broad zone and any designated discrete zone boundaries, the discrete zone boundaries would be prioritized. From the landward boundary, the broad zone boundaries would extend along the northern and southern boundaries of the Mid-Atlantic management region, and to the edge of the EEZ as the eastward boundary.
The discrete coral zones would be specific submarine canyons and slope areas located in Mid-Atlantic waters. The boundaries were developed collaboratively by participants at the Council's April 29-30, 2015, Deep-sea Corals Workshop in Linthicum, MD. Participants included the Council's Squid, Mackerel, and Butterfish Advisory Panel, the Ecosystems and Ocean Planning Advisory Panel, members of the Deep-sea Corals Fishery Management Action Team, invited deep-sea coral experts, additional fishing industry representatives, and other interested stakeholders. The canyons and slope areas were identified as areas with observed coral presence or highly likely coral presence indicated by modeled suitable habitat. Therefore, prohibiting bottom-tending fishing gear in these areas would prevent interaction with and damage to deep-sea corals that either are known through observation to live in these areas or that are likely to live there. The discrete coral zones are: Block Canyon; Ryan and McMaster Canyons; Emery and Uchupi Canyons; Jones and Babylon Canyons; Hudson Canyon; Mey-Lindenkohl Slope; Spencer Canyon; Wilmington Canyon; North Heyes and South Wilmington Canyons; South Vries Canyon; Baltimore Canyon; Warr and Phoenix Canyon Complex; Accomac and Leonard Canyons; Washington Canyon; and Norfolk Canyon.
This action would prohibit the use of bottom-tending commercial fishing gear within the designated deep-sea coral area, including: Bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; bottom-tending seines; bottom-tending longlines; sink or anchored gill nets; and pots and traps except those used to fish for red crab and American lobster. The prohibition on these gears would protect deep-sea corals from interaction with and damage from bottom-tending fishing gear.
Vessels would be allowed to transit the deep-sea coral area protection area provided the vessels bring bottom-tending fishing gear onboard the vessel, and reel bottom-tending trawl gear onto the net reel. The Council proposed these slightly less restrictive transiting provisions because the majority of transiting will be through the very
Vessels issued an
This action would expand the framework adjustment provisions in the FMP to facilitate future modifications to the deep-sea coral protection measures. The framework measures would include:
Modifications to coral zone boundaries via framework action;
Modifications to the boundaries of broad or discrete deep-sea coral zones through a framework action; and
Modification of management measures within deep-sea coral protection areas. This alternative would give the Council the option to modify fishing restrictions, exemptions, monitoring requirements, and other management measures within deep-sea coral zones through a framework action, including measures directed at gear and species not currently addressed in the FMP, with the purpose of such measures being to further the FMP's goal of protecting deep-sea corals from physical damage from fishing gear or to prevent loss or damage to such fishing gear from interactions with deep-sea corals. This would also include the ability to add a prohibition on anchoring in deep-sea coral protection areas;
Addition of discrete coral zones; and
Implementation of special access program for deep-sea coral protection area. This alternative would give the Council the option to design and implement a special access program for commercial fishery operations in deep-sea coral zones through a framework action.
The Council recommended that the deep-sea coral protection area should be named in honor of the late Senator Frank R. Lautenberg. Senator Lautenberg was responsible for several important pieces of ocean conservation legislation and authored several provisions included in the most recent reauthorized Magnuson-Stevens Act (2007), including the discretionary provision for corals. Therefore, the Council proposed that the combined broad and discrete zones be officially known as the “Frank R. Lautenberg Deep-Sea Coral Protection Area.”
A Notice of Availability (NOA) for Amendment 16, as submitted by the Council for review by the Secretary of Commerce, was published in the
The proposed regulations are based on the measures in Amendment 16 that would establish a deep-sea coral protection zone and management measures to limit commercial fishing gear interactions with deep-sea corals. On August 3, 2016, the Council deemed the regulations included in this proposed rule as necessary and appropriate to implement the Council's recommended deep-sea coral protection measures included in Amendment 16.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from the Council or NMFS (see
This action proposes to implement measures to protect deep-sea corals from fishing gear. The preamble to this proposed rule includes a complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, and these are not repeated here.
On December 29, 2015, 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 RFA compliance purposes only (80 FR 81194; December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016 (Id. at 81194).
The Council prepared the IRFA under the SBA standards and submitted the action for initial NMFS review in March 2016, prior to the July 1, 2016, effective date of NMFS' new size standard for commercial fishing businesses, under the assumption that the proposed rule would also publish prior to the July 1, 2016, effective date. However, NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. The new size standard could result in some of the large businesses being considered small, but, as explained below, this does not affect the conclusions of the analysis. The following summarizes the IRFA using the SBA definitions of small businesses.
The proposed deep-sea coral zones measures in association with other management measures within the coral zones could affect any business entity that has an active federal fishing permit
The proposed action contains no new collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This action requires
This action does not duplicate, overlap, or conflict with any other Federal law.
The Council considered one alternative under the broad coral zone proposed measures that may have had less economic impact on small businesses and that met the Council's objective of protecting deep-sea corals. Using the same landward boundary as the proposed action, but prohibiting fishing with all mobile bottom-tending fishing gear (instead of the proposed prohibition on all bottom-tending gear, both mobile and static), may have had marginally lower overall average revenue reduction when compared to the proposed action because some bottom-tending gears would be allowed in the area.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
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(11) Vessels issued an
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(10) Fish with bottom-tending gear within the Frank R. Lautenberg Deep-sea Coral Protection Area described at § 648.27, unless transiting pursuant to § 648.27(d), fishing lobster trap gear in accordance § 697.21, or fishing red crab trap gear in accordance with § 648.264. Bottom-tending gear includes but is not limited to bottom-tending otter trawls, bottom-tending beam trawls, hydraulic dredges, non-hydraulic dredges, bottom-tending seines, bottom longlines, pots and traps, and sink or anchored gill nets.
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(i) Adjustments within existing ABC control rule levels;
(ii) Adjustments to the existing MAFMC risk policy;
(iii) Introduction of new AMs, including sub-ACTs;
(iv) Minimum and maximum fish size;
(v) Gear restrictions, gear requirements or prohibitions;
(vi) Permitting restrictions;
(vii) Recreational possession limit, recreational seasons, and recreational harvest limit;
(viii) Closed areas;
(ix) Commercial seasons, commercial trip limits, commercial quota system, including commercial quota allocation procedure and possible quota set-asides to mitigate bycatch;
(x) Annual specification quota setting process;
(xi) FMP Monitoring Committee composition and process;
(xii) Description and identification of EFH (and fishing gear management measures that impact EFH);
(xiii) Description and identification of habitat areas of particular concern;
(xiv) Overfishing definition and related thresholds and targets;
(xv) Regional gear restrictions, regional season restrictions (including option to split seasons), regional management;
(xvi) Restrictions on vessel size (LOA and GRT) or shaft horsepower;
(xvii) Changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs;
(xviii) Set aside quota for scientific research;
(xix) Process for inseason adjustment to the annual specification;
(xx) Mortality caps for river herring and shad species, time/area management for river herring and shad species, and provisions for river herring and shad incidental catch avoidance program, including adjustments to the mechanism and process for tracking fleet activity, reporting incidental catch events, compiling data, and notifying the fleet of changes to the area(s);
(xxi) The definition/duration of `test tows,' if test tows would be utilized to determine the extent of river herring incidental catch in a particular area(s);
(xxii) The threshold for river herring incidental catch that would trigger the need for vessels to be alerted and move out of the area(s), the distance that vessels would be required to move from the area(s), and the time that vessels would be required to remain out of the area(s);
(xxiii) Modifications to the broad and discrete deep-sea coral zone boundaries and the addition of discrete deep-sea coral zones;
(xxiv) Modifications to the management measures within the Frank R. Lautenberg Deep-sea Coral Protection Area and implementation of special access programs to the Frank R. Lautenberg Deep-sea Coral Protection Area; and
(xxv) Any other management measures currently included in the FMP.
(2) Measures contained within this list that require significant departures from previously contemplated measures or that are otherwise introducing new concepts may require amendment of the FMP instead of a framework adjustment.
(a) No vessel may fish with bottom-tending gear within the Frank R. Lautenberg Deep-Sea Coral Protection Area described in this section, unless transiting pursuant to paragraph (d) of this section, fishing lobster trap gear in accordance § 697.21, or fishing red crab trap gear in accordance with § 648.264. Bottom-tending gear includes but is not limited to bottom-tending otter trawls, bottom-tending beam trawls, hydraulic dredges, non-hydraulic dredges, bottom-tending seines, bottom longlines, pots and traps, and sink or anchored gillnets. The Frank R. Lautenberg Deep-Sea Coral Protection Area consists of the Broad and Discrete Deep-Sea Coral Zones defined in paragraphs (b) and (c) of this section.
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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 and other forms of information technology.
Comments regarding this information collection received by October 27, 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 20503. Commentors 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.
Ottawa National Forest, USDA Forest Service.
Notice of proposed new fee sites.
The Ottawa National Forest is proposing new recreation fee sites. The Ottawa's proposal includes: A $100 day use fee for Clark Lake and Lake Ottawa group picnic buildings; a $5 daily or $30 annual fee for Black River picnic area and the Lake Ottawa day use area; and a $400 day use option for group use of Camp Nesbit, an organizational camp.
Fees are assessed based on the level of amenities and services provided, cost of operations and maintenance, and market assessment. These fees are proposed and will be determined upon further analysis and public comment. Funds from fees would be used for the continued operation and maintenance and improvements to the facilities within the recreation areas.
An analysis of nearby recreation facilities with similar amenities shows that the proposed fees are reasonable and typical of similar sites in the area.
Comments will be accepted through November 30, 2016. New fees would begin May 2017.
Linda L. Jackson, Forest Supervisor, Ottawa National Forest,
Lisa Klaus, Public Affairs Officer, 906-932-1330 extension 328. Information about these and other proposed fee changes can also be found on the Ottawa National Forest Web site:
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
Clark Lake and Lake Ottawa group picnic sites are fully enclosed buildings that each hold up to 75 people. Both have recently been renovated with Clark Lake receiving new bathrooms and showers, and Lake Ottawa receiving updates to the water and wastewater systems.
Black River picnic area is a public access point for boaters to Lake Superior and is one of the most highly visited sites on the Forest. It has received a renovation to its water and wastewater systems with a renovation of the pavilion to be completed in 2016.
The day use fee for Camp Nesbit would cover use of the dining hall, recreation hall, beach, restroom and shower facilities, and archery range. Season dates for Camp Nesbit vary annually based on use and weather conditions, but generally range from mid-April through mid-October. Once public involvement is complete, these new fees will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation.
Rural Housing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Rural Housing Service (RHS) invites comments on this information collection for which approval from the Office of Management and Budget (OMB) will be requested. The intention is to request a revision for a currently approved information collection in support of the program for 7 CFR part 1927-B, Real Estate Title Clearance and Loan Closing.
Comments on this notice must be received by November 28, 2016.
Andrea Birmingham, Loan Specialist, USDA Rural Housing Service, Single Family Housing, 1400 Independence Avenue SW., STOP 0783, Washington, DC 20250-0783, Telephone: (202) 720-1489. Fax: 1 (844) 496-7795. Email:
The Office of Management and Budget's (OMB) regulation (5 CFR part 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) required that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that RHS is submitting to OMB for approval. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) 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; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to:
RHS will be collecting information to assure that those participating in this program remain eligible to proceed with loan closing and to ensure that loans are made with Federal funds are legally secured. The respondents are individuals or households, businesses and non-profit institutions. The information required is used by the USDA personnel to verify that the required lien position has been obtained. The information is collected at the field office responsible for processing a loan application through loan closing. The information is also used to ensure the program is administered in manner consistent with legislative and administrative requirements. If not collected, the Agency would be unable to determine if the loan is adequately and legally secure. RHS continually strives to ensure that information collection burden is kept to a minimum.
Rural Housing Service, USDA.
Notice.
On May 19, 2016, the final rule for the certified loan application packaging process for the direct single family housing loan program became effective. See 80 FR 23673 (April 29, 2015) and 81 FR 8389 (February 19, 2016). The Administrator has the ability to temporarily reclassify applications received through the certified loan application packaging process as fourth funding priority when funds are insufficient to serve all program-eligible applicants, when determined appropriate. See 7 CFR 3550.55(c)(5).
In accordance with this regulatory allowance, the Administrator will grant fourth funding priority to loan application packages received via an Agency-approved intermediary when funds are insufficient to serve all program-eligible applicants. This reclassification will remain in effect until further notice via
This funding priority reclassification for loan application packages received via an Agency-approved intermediary is effective on September 27, 2016.
Tammy Repine, Finance and Loan Analyst, Single Family Housing Direct Loan Division, USDA Rural Development, 3625 93rd Avenue SW., Olympia, Washington 98512, Telephone: 360-753-7677. Email:
This action is deemed appropriate since the activities performed by the Agency-approved intermediaries (
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of communication for program information (
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at
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USDA is an equal opportunity provider, employer, and lender.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Wisconsin Advisory Committee (Committee) will hold a meeting on Monday, November 07, 2016, at 12:00 p.m. CST for the purpose of discussing testimony received regarding hate crime in the state, in preparation to issue a civil rights report to the Commission on the topic.
The meeting will be held on Monday, November 07, 2016, at 12:00 p.m. CST.
Melissa Wojnaroski, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-397-5335, conference ID: 8996006. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
National Technical Information Service, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The purpose of this notice is to allow for 60 days of public comment.
Written comments must be submitted on or before November 28, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to John W. Hounsell, Business and Industry Specialist, Office of Product and Program Management, National Technical Information Service, Department of Commerce, 5301 Shawnee Road, Alexandria, VA 22312, email:
This notice informs the public that the National Technical Information Service (NTIS) is requesting approval of a revised information collection described in Section II for use in connection with the final rule for the “Certification Program for Access to the Death Master File.” The final rule was published on June 1, 2016 (81 FR 34882), with the rule to become effective on November 28, 2016. The revised information collection described in Section II, if approved, will become effective on the effective date of the final rule.
Initially, on March 26, 2014, NTIS promulgated an interim final rule, establishing a temporary certification program (79 FR 16668) for persons who seek access to the Limited Access DMF. Subsequently, on December 30, 2014, NTIS issued a notice of proposed rulemaking (79 FR 78314). NTIS adjudicated the comments received, and, on June 1, 2016, published a final rule (81 FR 34822).
NTIS created the Certification Form used with the interim final rule for Persons and Certified Persons to provide information to NTIS describing the basis upon which they are seeking certification. In the notice of proposed rulemaking, NTIS discussed proposed revisions to the Certification Form (79 FR 78314 at 78320-21). The final rule requires that Persons and Certified Persons provide additional information to improve NTIS's ability to determine whether a Person or Certified Person meets the requirements of the Act (81 FR 34882).
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The revised application to reorganize and expand FTZ 82 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, to an ASF sunset provision for magnet sites that would terminate authority for Sites 2, 3, 4, 7, 9, 13 and 18 if not activated within five years from the month of approval, and to an ASF sunset provision for usage-driven sites that would terminate authority for Sites 14, 15, 16, 17 and 19 if no foreign-status merchandise is admitted for a
Volvo Car US Operations, Inc. (Volvo) submitted a notification of proposed production activity to the FTZ Board for its facility in Ridgeville, South Carolina. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 9, 2016.
A separate application by the South Carolina State Ports Authority, grantee of FTZ 21, for subzone designation at the Volvo facility will be submitted and processed under Section 400.31 of the Board's regulations. The facility is currently under construction and will be used for the production of motor vehicles and related parts. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Volvo from customs duty payments on the foreign-status components used in export production. On its domestic sales, Volvo would be able to choose the duty rates during customs entry procedures that apply to passenger motor vehicles, lithium-ion batteries for passenger motor vehicles, passenger motor vehicle bodies and stamped motor vehicle body parts (duty rates range between 2.5% and 3.4%) for the foreign-status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The components and materials sourced from abroad include: First aid kits; acrylic/vinyl paints; adhesives; polyurethane profile shapes/seals/plates/sheets/film; acoustic foams; foam absorbers; plastic connectors/fittings/tapes/decals/plates/sheets/film/caps/covers/plugs/anchors/handles/brackets/clamps/clips/covers/fasteners/guides/hinges/mountings/locks/knob handles/o-rings/cable ties/clamps/clips/cushions/emblems/nuts/plates/retainers/rivets/tubing/door lock parts; rubber tire sealants/threads/cords/plates/sheets/strip/gaskets/hoses/air filter ducts/tubes/belts/tires/mats/o-rings/seals/mouldings/absorbers/cushions/rings/bellows//mounts/rods/bushings; upholstery leather; leather cases/bags; felt paper and paperboards; light-weight coated paper; cardboard boxes; printed books/brochures/leaflets/manuals; felt strips; manmade fiber felt shapes; felt damping strips; netting of twines/ropes; manmade fiber twine, cordage, or rope nettings; nylon carpets; tufted other manmade textile carpets/mats; felt carpets; manmade fiber tufted and non-tufted carpets/mats; velcro straps; vent pads (polyester fleece); umbrellas; mineral wools; asbestos brake linings/pads; graphite or other carbon gaskets; glass; mirrors; sun visors; glass lenses; sound absorber/insulating articles of fiberglass; platinum catalysts; wood screws; steel butt weld fittings/flanges/gas containers; iron or steel coupling locks/wire/ropes/cables/roller chains/nails/screws/bolts/
The following foreign-sourced materials/components will be admitted to the proposed subzone in privileged foreign status (19 CFR 146.41), thereby precluding inverted tariff benefits on such items: felt strips (HTSUS 5602.10); manmade fiber felt shapes (HTSUS 5602.90); felt damping strips (HTSUS 5602.90); netting of twines or ropes (HTSUS 5608.19); manmade fiber twine/cordage/rope nettings (HTSUS 5608.90); nylon carpets (HTSUS 5703.20); tufted other manmade textile carpets/mats (HTSUS 5703.30); felt carpets (HTSUS 5704.90); manmade fiber tufted and non-tufted carpets/mats (HTSUS 5705.00); velcro straps (HTSUS 5806.10); vent pads (polyester fleece) (HTSUS 5911.90); textile child seat protector covers (HTSUS 8708.99); textile sun shade curtains (HTSUS 8708.99); manmade fiber cargo nets (HTSUS 8708.99); textile seats/arm rests/head rests and related parts (HTSUS 9401.90); and, textile child safety seat covers (HTSUS 9401.90).
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is November 7, 2016.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site which is accessible via
For further information, contact Diane Finver at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On August 26, 2016, the United States Court of International Trade (CIT or Court) sustained the Department of Commerce's (Department) final results of redetermination in which the Department determined, under protest, that Whirlpool Corporation's (Whirlpool) kitchen appliance door handles with plastic end caps (handles with end caps) are not covered by the scope of the antidumping (AD) and countervailing duty (CVD) orders on aluminum extrusions from the People's Republic of China.
James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-3965.
On August 4, 2014, the Department issued a final scope ruling in which it determined that two types of kitchen appliance door handles imported by Whirlpool are within the scope of the
On February 1, 2016, in
On April 18, 2016, the Department issued its Final Results of Redetermination, in which it found that although it respectfully disagreed with the Court that Whirlpool's handles with end caps were not covered by the general scope language, it found under protest that Whirlpool's handles with end caps were outside the scope of the
On August 26, 2016, in
In its decision in
Because there is now a final court decision with respect to the Whirlpool Kitchen Appliance Door Handles Scope Ruling, the Department amends its final scope ruling and finds that the scope of the
This notice is issued and published in accordance with section 516A(c)(1) of the Act.
National Institute of Standards and Technology, Commerce.
Notice.
In 2011, President Obama issued a Presidential Memorandum—
In an effort to encourage research in this area, the National Institute of Standards and Technology and the
The FIA Challenge calls on researchers to perform original retrospective studies that assess the impact of federally developed technologies that (1) have been developed completely or in part by Federal researchers working at any Federal agency at any time over the past 30 years, and (2) have been transferred to an entity other than the agency which developed the technology.
The Submission Period begins September 27, 2016, at 9:00 a.m. Eastern Time (ET) and ends March 31, 2017, at 5:00 p.m. ET. Prize competition dates are subject to change at the discretion of NIST. Entries submitted before or after the Submission Period will not be reviewed or considered for award.
Changes or updates to the prize competition rules will be posted and can be viewed at the Event Web site,
Questions about the prize competition can be directed to NIST via the Event Web site,
Results of the prize competition will be announced on the Event Web site,
The National Institute of Standards and Technology (NIST;
The
At the time of Entry, participants must meet the following Eligibility Rules:
The FIA Challenge is open to all individuals over the age of 18 that are residents of the 50 United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa, and to for-profit or non-profit corporations, institutions, or other validly formed legal entities organized or incorporated in,
Federal employees are not eligible to participate. Any individuals or legal entities that have received Federal funds for the development of any part of a submission are ineligible. Any other individuals or legal entities involved with the design, production, execution, distribution or evaluation of the FIA Challenge are also not eligible to participate.
A Participant shall not be deemed ineligible because the Participant consulted with Federal employees or used Federal facilities in preparing its submission to the FIA Challenge if the employees and facilities are made available to all Participants on an equitable basis. Note that while Federal employees may provide information to Participants, they are not obligated to respond to information requests within the time frame of this Challenge. The task of gathering information for this Challenge in a timely manner is the sole responsibility of the Participant.
To be eligible to win a Cash Award, a Participant (whether an individual or legal entity) must have registered to participate and must have complied with all requirements under section 3719 of title 15, United States Code (“Prize competitions”).
Multiple entries are permitted. Each entry will be reviewed independently. Multiple individuals and/or legal entities may collaborate as a group to submit a single entry, in which case all members of the group must satisfy the eligibility requirements, and a single individual from the group must be designated as an official representative for each entry. That designated individual will be responsible for meeting all entry and evaluation requirements. Participation is subject to all U.S. federal, state and local laws and regulations. Individuals entering on behalf of or representing a company, institution or other legal entity are responsible for confirming that their entry does not violate any policies of that company, institution or legal entity.
To enter, visit the Event Web site,
The FIA Challenge calls on Participants to write an original Paper describing a retrospective assessment of the economic and/or societal impacts resulting from the transfer of a Federal technology developed completely or in part by Federal researchers working at any Federal agency at any time over the past 30 years.
For this FIA Challenge, “Federal technologies” are those techniques, machines, articles of manufacture, compositions of matter, methods, processes, tools, or works of authorship, whether or not patentable or copyrightable, that were invented or developed in whole or in part by one or more Federal employees during the course of their employment duties.
Transfer of a Federal technology (technology transfer) is the use of that technology by an entity outside of the agency where the Federal employee(s) was assigned. There are many different means by which the Federal government seeks to transfer technologies. Technologies can be transferred through formal agreements (
Eligible technologies must meet two criteria, namely (1) the technology must have been developed in whole or in part by a Federal employee(s) during the course of his or her employment duties at any time over the past 30 years, and (2) the technology must have been transferred outside the Federal agency in a manner that can be traced back to that Federal agency. Technologies that have been developed entirely outside of a Federal agency or that have been developed entirely by non-Federal employees (even though with federal funding) are not eligible. Technologies that have not been transferred by a Federal agency are also not eligible. Information about federally transferred technologies and technology transfer success stories can be found on the Federal Laboratories Consortium (FLC) Web site at
For the FIA Challenge, it is envisioned that impacts of a given Federal technology(ies) are determined by an assessment of repercussions that have accrued to those who have either utilized Federal technologies in research or development activities, and/or consumed goods or services enabled by Federal technologies. The objective of the FIA Challenge is to develop metrics that measure economic and societal impacts. These metrics will then be available to stakeholders and policy makers to evaluate the net impact of federally developed technologies (
Papers submitted to this challenge that have previously been published or that have been prepared using Federal funds are not eligible (
A complete Entry includes your Paper (including any figures, tables, and references), the email address of the Participant who is officially representing the Entry, and confirmation that you have read and agree to the Competition Rules contained in this Notice. Participants may provide submissions beginning at 9:00 a.m. ET on September 27, 2016, to the Event Web site. Submissions can be made no later than 5:00 p.m. ET on March 31, 2017, to the Event Web site.
Submissions before the start date and time, or after the end date and time, will not be evaluated or considered for award. Entries sent to NIST in any manner other than through the Event Web site will not be evaluated or considered for award. Entries that do not comply with the formatting requirements set forth in this Notice will not be evaluated or considered for award.
Entries must be complete, must contain no confidential information and must be in English.
In general, each Entry:
(a) must affirmatively represent that the Participant (and each Participant if more than one) has read and consents to be governed by the Competition rules and meets the eligibility requirements;
(b) must include an original Paper not prepared using Federal funds. Specifically, the Paper must:
1. Include the Participant(s) and the email address of the Participant who is officially representing the Entry.
2. include text, figures, tables and references that describes a retrospective impact assessment of a federally developed technology(ies),
3. be an original work not previously published in any media (
4. be a single file submitted in .doc, .docx, or .pdf format with text, figures, tables, and references contained within the Paper. There is no page limit,
5. provide an assessment of the economic and/or societal impacts of a technology or technologies that have been developed completely or in part by Federal researchers working at any Federal agency at any time over the past 30 years, and must have been transferred from a Federal agency,
6. provide a complete description of the impact methodology, including a description of the metrics used for the impact assessment. Citations of Federal technologies must be provided, for example by listing patent numbers, as well as citations of the transfer of the technologies to the private sector, for example by listing products and companies using licensed Federal technologies,
7. meet the Evaluation Criteria described below in the Evaluation, Judging, and Selection of Winner(s) sections, and
8. include original figures, tables, and text passages or, if any of these have been published elsewhere, Participants must have obtained written permission, at Participants' sole expense, from the copyright owner(s) for both the irrevocable use and distribution by NIST of the figure, tables, or text passages, in both print and online formats and evidence that such permission has been granted must be provided in the Paper. Any material received without such evidence will be assumed to originate from the authors;
(c) must include in a separate section on the title page of the Paper, an acknowledgement of any individuals, grants, funds, or other entities that provided support for the Paper. Participants must disclose all relationships or interests that could have direct or potential influence or impart bias on the work.
The Prize Purse for the FIA Challenge is a total of $20,000. The Prize Purse may increase, but will not decrease. Any increases in the Prize Purse will be posted on the Event Web site and published in the
NIST will announce via the Event Web site any Entry(ies) as to which the Judges have made a cash award (each, an “Award”). The anticipated number and amount of the Awards that will be awarded for this Competition is set forth in this
Winners are responsible for all taxes and reporting related to any Award received as part of the Competition.
All costs incurred in the preparation of Competition Entries are to be borne by Participants.
This section discusses how Participant submissions will be evaluated.
The requirements for submission of a complete Entry are detailed in the section “Entry Process for Participants.” Each Paper will be reviewed by up to three subject matter experts. Each subject matter expert will assess how well the Paper addressed each of the following evaluation criteria. For each criterion, subject matter experts will assign a numerical score and will provide a brief (50 to 100 word) assessment of how well that criterion was met.
1. Description of the technology. (20 points)
Papers must include a description of the technology being analyzed. In addition to describing the function and purpose of the technology, the description must also identify where and when the technology was developed, when the technology was transferred, and how the technology was transferred. Papers will be evaluated based on the presentation of a clear and adequate description of the technology being assessed.
2. Description of the demand environment. (30 points)
Papers must include a description of the demand environment. The demand environment is the environment in which the technology is utilized after it has been transferred from the agency. Papers should describe the types and number of individuals and/or organizations that utilize the technology. This should include researchers, consumers, and companies that make up the markets and industries affected. Papers will be evaluated based on the presentation of a clear and adequate description of the demand environment.
3. Description of methodologies used to gather and assess impact data. (20 points)
Papers must include a description of how impact data was gathered and assessed. This includes a description of all data sources, techniques used to clean, adjust or normalize data, and statistical methods employed. Papers will be evaluated based on the creativity and appropriateness of the methodology used to gather data and assess impacts.
4. Description of the economic and/or societal impacts that resulted from the technology transferred from the Federal agency. (30 points)
Papers must describe the economic and/or societal impact that resulted from the utilization of the technology once transferred from the agency. The description must be based on the evidence gathered and the statistical method(s) used to assess impacts in the demand environment. The description must include clearly defined metrics that allow for the benchmarking of impacts over time. Papers will be evaluated based on the degree to which reported impacts are presented in an accurate, unbiased, comprehensive, and convincing manner.
Up to 15 Papers will be selected for evaluation by the Judges. Selected papers will be the lesser of either (1) all papers with an average subject matter expert score of 70 or higher, or (2) the top 15 papers with the highest average subject matter expert scores.
A panel of three judges will then be convened to rank the selected Papers.
Judges will review each of the selected Papers and the corresponding reviews provided by subject matter experts. Judges will deliberate and then rank them using the following equally weighted Judging Criteria.
• Novelty of the Approach—The extent to which each Paper describes a new, creative, or innovative approach to capturing the impact of a Federally funded technology(ies).
• Scope of the Assessment—The extent to which each Paper addresses the scope of impact from the transfer of a Federally funded technology.
• Quality of the Paper—The extent to which each Paper present a high-quality, well-reasoned and compelling argument for capturing the impact of a federal funded technology(ies).
Participant(s) who submitted a Paper that is among the top four Papers ranked by the Judges will receive $5,000 and an invitation to have the Paper considered for publication in a special issue of
Papers submitted will be peer-reviewed using the processes of the Journal, and acceptance for publication is wholly within the Journal's discretion, and is not guaranteed.
Subject Matter Experts, to be selected by NIST, will, as a body, represent a high degree of experience with impact assessment and federally funded technologies. Subject Matter Experts will consist of Federal employees and will be subject matter experts in the technology field. Subject Matter Experts will not select winners of any awards.
The NIST Director will appoint a panel of highly qualified Judges. The Judging Panel will consist of three individuals who are experts in the field
Other than as set forth herein, NIST does not make any claim to ownership of your Entry or any of your intellectual property or third party intellectual property that it may contain. By participating in the Competition, you are not granting any rights in any patents or pending patent applications related to your Entry; provided that by submitting an Entry, you are granting NIST certain limited rights as set forth herein.
By submitting an Entry, you grant to NIST the right to review your Entry as described above in the section “Entry Submission and Review,” to describe your Entry in connection with any materials created in connection with the Competition and to have the Subject Matter Experts, Judges, Competition administrators, and the designees of any of them, review your Entry.
By submitting an Entry, you grant a non-exclusive, irrevocable, paid up right and license to NIST to use your name, likeness, biographical information, image, any other personal data submitted with your Entry and the contents in your Entry, in connection with the Federal Impact Assessment Challenge for any purpose, including promotion and advertisement of the Challenge and future challenges.
You agree that nothing in this Notice grants you a right or license to use any names or logos of NIST or the Department of Commerce, or any other intellectual property or proprietary rights of NIST or the Department of Commerce or their employees or contractors. You grant to NIST the right to include your name and your company or institution name and logo (if your Entry is from a company or institution) as a Participant on the Event Web site and in materials from NIST announcing winners of or Participants in the Competition. Other than these uses or as otherwise set forth herein, you are not granting NIST any rights to your trademarks.
If your Entry is selected as a Winner, you will be invited to submit your Paper for publication in the Journal of Technology Transfer. If you opt to submit your Paper to the Journal, you will enter into an agreement with the Journal and nothing in this Notice alters the peer review, publication, and other processes practiced by the Journal.
Entries containing any matter which, in the sole discretion of NIST, is indecent, defamatory, in obvious bad taste, which demonstrates a lack of respect for public morals or conduct, which promotes discrimination in any form, which shows unlawful acts being performed, which is slanderous or libelous, or which adversely affects the reputation of NIST, will not be accepted. If NIST, in its sole discretion, finds any Entry to be unacceptable, then such Entry shall be deemed disqualified and will not be evaluated or considered for award. NIST shall have the right to remove any content from the Event Web site in its sole discretion at any time and for any reason, including, but not limited to, any online comment or posting related to the Competition.
By making a submission to the FIA Challenge, you agree that no part of your submission includes any confidential or proprietary information, ideas or products, including but not limited to information, ideas or products within the scope of the Trade Secrets Act, 18 U.S.C. 1905. Because NIST will not receive or hold any submitted materials “in confidence,” it is agreed that, with respect to your Entry, no confidential or fiduciary relationship or obligation of secrecy is established between NIST and you, your Entry team, the company or institution you represent when submitting an Entry, or any other person or entity associated with any part of your Entry.
By submitting an Entry, you represent and warrant that all information you submit is true and complete to the best of your knowledge, that you have the right and authority to submit the Entry on your own behalf or on behalf of the persons and entities that you specify within the Entry, and that your Entry (both the information and software submitted in the Entry and the underlying technologies or concepts described in the Entry):
(a) Is your own original work, or is submitted by permission with full and proper credit given within your Entry;
(b) does not contain confidential information or trade secrets (yours or anyone else's);
(c) does not knowingly, after due inquiry (including, by way of example only and without limitation, reviewing the records of the United States Patent and Trademark Office and inquiring of any employees and other professionals retained with respect to such matters), violate or infringe upon the patent rights, industrial design rights, copyrights, trademarks, rights in technical data, rights of privacy, publicity or other intellectual property or other rights of any person or entity;
(d) does not contain malicious code, such as viruses, malware, timebombs, cancelbots, worms, Trojan horses or other potentially harmful programs or other material or information;
(e) does not and will not violate any applicable law, statute, ordinance, rule or regulation, including, without limitation, United States export laws and regulations, including, but not limited to, the International Traffic in Arms Regulations and the Department of Commerce Export Regulations; and
(f) does not trigger any reporting or royalty or other obligation to any third party; and
(g) does not contain any statement that is abusive, defamatory, libelous, obscene, fraudulent, or is in any other way unlawful or in violation of applicable laws.
By participating in the FIA Challenge, you agree to assume any and all risks and to release, indemnify and hold harmless NIST and the
NIST is not responsible for any miscommunications such as technical failures related to computer, telephone, cable, and unavailable network or server connections, related technical failures,
NIST is not responsible for: (1) Any incorrect or inaccurate information, whether caused by a Participant, printing errors, or by any of the equipment or programming associated with or used in the FIA Challenge; (2) unauthorized human intervention in any part of the Entry Process for the FIA Challenge; (3) technical or human error that may occur in the administration of the FIA Challenge or the processing of Entries; or (4) any injury or damage to persons or property that may be caused, directly or indirectly, in whole or in part, from a Participant's participation in the FIA Challenge or receipt or use or misuse of an Award. If for any reason an Entry is confirmed to have been deleted erroneously, lost, or otherwise destroyed or corrupted, the Participant's sole remedy is to submit another Entry in the FIA Challenge.
NIST reserves the authority to cancel, suspend, and/or modify the FIA Challenge, or any part of it, if any fraud, technical failures, or any other factor beyond NIST's reasonable control impairs the integrity or proper functioning of the FIA Challenge, as determined by NIST in its sole discretion.
NIST reserves the right to disqualify any Participant or Participant team it believes to be tampering with the Entry process or the operation of the FIA Challenge or to be acting in violation of any applicable rule or condition.
Any attempt by any person to undermine the legitimate operation of the FIA Challenge may be a violation of criminal and civil law, and, should such an attempt be made, NIST reserves the authority to seek damages from any such person to the fullest extent permitted by law.
All potential winners are subject to verification by NIST, whose decisions are final and binding in all matters related to the FIA Challenge.
Potential winner(s) must continue to comply with all terms and conditions of the FIA Challenge Rules described in this notice, and winning is contingent upon fulfilling all requirements. In the event that a potential winner, or an announced winner, is found to be ineligible or is disqualified for any reason, NIST may make an award, instead, to another Participant.
Except as provided herein, information submitted throughout the FIA Challenge will be used only to communicate with Participants regarding Entries and/or the FIA Challenge. Participant Entries and submissions to the FIA Challenge may be subject to disclosure under the Freedom of Information Act (“FOIA”).
15 U.S.C. 3719.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for letters of authorization; request for comments and information.
NMFS has received a request from the Alaska Aerospace Corporation (AAC) for authorization to take marine mammals incidental to conducting space vehicle launch operations over the course of five years, from February 1, 2017 through January 31, 2022. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the AAC's request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the AAC's application and request.
Comments and information must be received no later than October 27, 2016.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. 1315 East-West Highway, Silver Spring, MD 20910-3225 and electronic comments should be sent
Stephanie Egger, Office of Protected Resources, NMFS, (301) 427-8401.
An electronic copy of the AAC's application may be obtained online at:
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Incidental taking shall be allowed if NMFS finds that the taking will have a negligible impact on the species or stock(s) affected and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On September 14, 2016, NMFS received an adequate and complete application from the AAC requesting authorization for the take of marine mammals incidental to space vehicle and missile launch activities from the Pacific Spaceport Complex Alaska (PSCA) for a period of five years. Space vehicle and missile launch activities have the potential to result in take of pinnipeds on nearby haul outs. Therefore, AAC requests authorization to take marine mammals that may occur in these areas, including Steller sea lions (
AAC is proposing to launch small to medium space launch vehicles from the PSCA. PSCA may also launch a number of smaller missile systems, such as tactical or target vehicles. AAC anticipates the ability to accommodate nine launches per year.
Interested persons may submit information, suggestions, and comments concerning AAC's request (see
Department of Education (ED), Office of Career, Technical, and Adult Education (OCTAE)
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before November 28, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact John LeMaster, 202-245-6218.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Through this proposal, the Department is submitting a revised NRS ICR to include additional data collection elements consistent with the WIOA performance accountability requirements for the AEFLA program. These new requirements will become effective July 1, 2017. Thus, for purposes of the AEFLA program, States will be required to complete and submit annually to OCTAE the WIOA Annual Statewide Performance Report Template
This revised NRS ICR contains 17 tables, two of which are required only for States that offer distance education; one optional table; two financial reports; one narrative report; and one data quality checklist. These tables and report forms are included in the document titled “Adult Education and Family Literacy Act (AEFLA) Reporting Tables.” States include in the tables all participants in programs (1) that meet the purposes of AEFLA, and (2) for which expenditures are reported on the Federal Financial Report. In June 2016, OMB approved the data collection required by AEFLA (OMB 1830-0027) by approving non-substantive changes that conformed to the performance accountability requirements in WIOA section 116. OCTAE is requesting an extension of this approval, with proposed minor changes in order to obtain a more accurate reporting of participants served in the various AEFLA activities, services, and programs that support the purposes of AEFLA. These minor enhancements will increase the efficiency of the data collection process and ensure the quality of the data that States report.
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Morgan Stanley Capital Group Inc. (Applicant or MSCG) has applied to renew its authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before October 27, 2016.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On December 7, 2011, DOE issued Order No. EA-184-B to MSCG, which authorized the Applicant to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. That authority expires on December 7, 2016. On September 14, 2016, MSCG filed an application with DOE for renewal of the export authority contained in Order No. EA-184 for an additional five-year term.
In its application, MSCG states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that MSCG proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning MSCG's application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-184-C. An additional copy is to be provided directly to Edward J. Zabrocki, Morgan Stanley & Co. LLC, 1585 Broadway, 3rd Floor, New York, NY 10036 and Allison E. Speaker, Sutherland Asbill & Brennan LLP, 700 Sixth Street NW., Suite 700, Washington, DC 20001.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Take notice that on September 19, 2016, Vote Solar and Montana Environment Information Center (collectively, Vote Solar) filed a petition for enforcement pursuant to section 210 of Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. 824a-3. Vote Solar asserts that Montana Public Service Commission violated PURPA by suspending the standard rate for solar qualifying facilities with a nameplate capacity between 100 kW and 3 MW, all as more fully explained in the petition.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 9, 2016, Columbia Gas Transmission, LLC (Columbia), 5151 San Felipe, Suite 2500, Houston, Texas 77056, filed an application pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA) requesting authorization to: (i) Abandon in place 17.5 miles of its Line B-105, (ii) replace 14 miles of its Line B-111, (iii) replace 0.1 miles of its Line B-121, (iv) replace 0.5 miles of its Line B-130, (v) install 7.6 miles of Line K-270 pipeline, and (vi) remove or install various appurtenances, all located in Fairfield and Franklin Counties, Ohio. Columbia states that there will be no change in certificated capacity. Columbia estimates the cost of the proposed project to be approximately $182,773,707, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site web at
Any questions concerning these applications may be directed to Tyler R. Brown, Senior Counsel, Columbia Gas Transmission, LLC, 5151 San Felipe, Suite 2500, Houston, Texas 77056, by telephone at (713) 386-3797.
On March 10, 2016, the Commission staff granted Columbia's request to utilize the Pre-Filing Process and assigned Docket No. PF16-4-000 to staff activities involved in the above referenced project. Now, as of the filing of the September 9, 2016 application, the Pre-Filing Process for this project has ended. From this time forward, this proceeding will be conducted in Docket No. CP16-498-000 as noted in the caption of this Notice.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on September 19, 2016, Michael W. Hastings submitted for filing, an application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act (FPA), 16 U.S.C. 825d(b), Part 45 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45, and Order No. 664.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a draft environmental impact statement (EIS) for the projects proposed by Mountain Valley Pipeline LLC (Mountain Valley) and Equitrans LP (Equitrans) in the above-referenced dockets. Mountain Valley requests authorization to construct and operate certain interstate natural gas facilities in West Virginia and Virginia, known as the Mountain Valley Project (MVP) in Docket Number CP16-10-000. The MVP is designed to transport about 2 billion cubic feet per day (Bcf/d) of natural gas from production areas in the Appalachian Basin to markets in the Mid-Atlantic and Southeastern United States. Equitrans requests authorization to construct and operate certain natural gas facilities in Pennsylvania and West Virginia, known as the Equitrans Expansion Project (EEP) in Docket No. CP16-13-000. The EEP is designed to transport about 0.4 Bcf/d of natural gas, to improve system flexibility and reliability, and serve markets in the Northeast, Mid-Atlantic, and Southeast, through interconnections with various other interstate systems, including the proposed MVP.
The draft EIS assesses the potential environmental effects of the construction and operation of the MVP and EEP in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the MVP and EEP would have some adverse environmental impacts; however, these impacts would be reduced with the implementation of Mountain Valley's and Equitrans' proposed mitigation measures, and the additional measures recommended by the FERC staff in the EIS.
The United States Department of Agriculture Forest Service (FS), U.S. Army Corps of Engineers (COE), U.S. Environmental Protection Agency, U.S. Department of the Interior Bureau of Land Management (BLM), U.S. Department of Transportation, West Virginia Department of Environmental Protection, and West Virginia Division of Natural Resources participated as cooperating agencies in the preparation of the EIS. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposals and participated in the NEPA analysis. The BLM, COE, and FS may adopt and use the EIS when they consider the issuance of a Right-of-Way Grant to Mountain Valley for the portion of the MVP that would cross federal lands. Further, the FS may use the EIS when it considers amendments to its Land and Resource Management Plan (LRMP) for the proposed crossing of the Jefferson National Forest. Although the cooperating agencies provided input to the conclusions and recommendations presented in the draft EIS, the agencies will present their own conclusions and recommendations in their respective permit authorizations and Records of Decision (ROD) for the projects.
The draft EIS addresses the potential environmental effects of the construction and operation of the proposed facilities. For the MVP, facilities include:
• About 301 miles of new 42-inch-diameter pipeline extending from the new Mobley Interconnect in Wetzel County, West Virginia to the existing Transcontinental Gas Pipe Line Company LLC (Transco) Station 165 in Pittsylvania County, Virginia;
• 3 new compressor stations (Bradshaw, Harris, Stallworth) in West Virginia, totaling about 171,600 horsepower (hp);
• 4 new meter and regulation stations and interconnections (Mobley, Sherwood, WB, and Transco);
• 2 new taps (Webster and Roanoke);
• 5 pig
• 36 mainline block valves.
For the EEP, facilities include:
• About 8 miles total of new various diameter pipelines in six segments;
• new Redhook Compressor Station, in Greene County, Pennsylvania, with 31,300 hp of compression;
• 4 new taps (Mobley, H-148, H-302, H-306) and 1 new interconnection (Webster);
• 4 pig launchers and receivers; and
• decommissioning and abandonment of the existing 4,800 hp Pratt Compressor Station in Greene County, Pennsylvania.
The BLM's purpose and need for the proposed action is to respond to a Right-of-Way Grant application submitted by Mountain Valley on April 5, 2016. Under the Mineral Leasing Act of 1920 the Secretary of the Interior has delegated authority to the BLM to grant a right-of-way in response to the Mountain Valley application for natural gas transmission on federal lands under the jurisdiction of two or more federal agencies. Before issuing the Right-of-Way Grant, the BLM must receive the written concurrence of the other surface managing federal agencies (
The FS's purpose and need for the proposed action is to consider issuing a concurrence to the BLM for the Right-of-Way Grant and to evaluate the amendments to the LRMP for the Jefferson National Forest that would make provision for the MVP pipeline if the FS decides to concur and BLM decides to issue a Right-of-Way Grant.
The first type of LRMP amendment would be a “plan-level amendment” that would change land allocations. This would change future management direction for the lands reallocated to the new management prescription (Rx) and is required by LRMP Standard FW-248.
Rx 5C—Designated Utility Corridors contain special uses which serve a public benefit by providing a reliable supply of electricity, natural gas, or water essential to local, regional, and national economies. The new Rx 5C land allocation would be 500 feet wide (250 feet wide on each side of the pipeline), with two exceptions: (1) The area where the pipeline crosses Rx 4A—Appalachian National Scenic Trail Corridor would remain in Rx 4A; and (2) the new 5C area would not cross into Peters Mountain Wilderness so the Rx 5C area would be less than 500 feet wide along the boundary of the Wilderness.
The second type of amendment would be a “project-specific amendment” that would apply only to the construction and operation of this pipeline. The following amendments would grant a temporary `waiver' to allow the project to proceed. These amendments would not change LRMP requirements for other projects or authorize any other actions.
The decision for a Right-of-Way Grant across federal lands would be documented in a ROD issued by the BLM. The BLM's decision to issue, condition, or deny a right-of-way would be subject to BLM administrative review procedures established in 43 CFR 2881.10 and Section 313(b) of the Energy Policy Act. The FS concurrence to BLM to issue the Right-of-Way Grant would not be a decision subject to NEPA, and therefore would not be subject to FS administrative review procedures. The FS would issue its own ROD for the LRMP amendments. The Forest Supervisor for the Jefferson National Forest would be the Responsible Official for the LRMP amendments. Proposed Amendment 1 was developed in accordance to 36 CFR 219 (2012 version) regulations and would be subject to the administrative review procedures under 36 CFR 219 Subpart B. Proposed Amendments 2, 3 and 4 were developed in accordance to 36 CFR 219 (2012) regulations but would be subject to the administrative review procedures under 36 CFR 218 regulations Subparts A and B, per 36 CFR 219.59(b).
The BLM is requesting public comments on the issuance of a Right-of-Way Grant that would allow the MVP pipeline to be constructed on federal lands managed by the FS and COE. The FS is requesting public comments on the consideration of submitting a concurrence to BLM and the draft amendments of the LRMP to allow the MVP pipeline to cross the Jefferson National Forest. All comments must be submitted to the FERC, the lead federal agency, within the timeframe stated in this Notice of Availability. Refer to Docket CP16-10-000 (MVP) in all correspondence to ensure that your comments are correctly filed in the record. You may submit comments to the FERC using one of the four methods listed below in this notice. Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that the entire text of your comments—including your personal identifying information—would be publicly available through the FERC eLibrary system, if you file your comments with the Secretary of the Commission.
The FERC staff mailed copies of the draft EIS to federal, state, and local government representatives and agencies; elected officials; regional environmental groups and non-governmental organizations; potentially interested Native Americans and Indian tribes; affected landowners; local newspapers and libraries; parties to this proceeding; and members of the public who submitted comments about the projects. Paper copy versions of this draft EIS were mailed to those specifically requesting them; all others received a compact-disc version. In addition, the draft EIS is available for public viewing on the FERC's Web site (
Any person wishing to comment on the draft EIS may do so. To ensure consideration of your comments on the proposal in the final EIS, it is important that the Commission receive your comments on or before December 22, 2016.
For your convenience, there are four methods you can use to submit your comments to the Commission. The Commission will provide equal consideration to all comments received, whether filed in written form or provided verbally. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically by using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP16-10-000 or CP16-13-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
(4) In lieu of sending written or electronic comments, the Commission invites you to attend one of the public sessions its staff will conduct in the project area to receive verbal comments on the draft EIS. To ensure that interested parties have ample opportunity to attend, the FERC staff has arranged for seven public sessions, at venues spaced a reasonable driving distance apart, and scheduled as listed below.
There will not be a formal presentation by Commission staff at any of the seven public comment sessions, although a format outline handout will be made available. All public sessions will begin at 5:00 p.m. Eastern time. If you wish to provide verbal comments, the Commission staff will hand out numbers in the order of your arrival, and will discontinue handing them out at 8:00 p.m. Comments will be taken until 10:00 p.m. However, if no additional numbers have been handed out and all individuals who wish to provide comments have had an opportunity to do so, staff may conclude the session at 8:00 p.m.
The primary goal of the public sessions is to allow individuals to provide verbal comments on the draft EIS. Individual verbal comments will be taken on a one-on-one basis with a stenographer (with FERC staff or representative present), called up in the order of the numbers received. Because we anticipate considerable interest from concerned citizens, this format is designed to receive the maximum amount of verbal comments, in a convenient way during the timeframe allotted. If many people are interested in providing verbal comments in the one-on-one setting at any particular session, a time limit of 3 minutes may be implemented for each commenter.
Your verbal comments will be recorded by the stenographer. Transcripts of all comments from the sessions will be placed into the dockets for the projects, which are accessible for public viewing on the FERC's Web site (at
Commission staff will be available at each venue of the public sessions to answer questions about our environmental review process. It is important to note that written comments mailed to the Commission and those submitted electronically are reviewed by staff with the same scrutiny and consideration as the verbal comments given at the public sessions.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR part 385.214).
Additional information about the projects is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Take notice that on September 19, 2016, John J. Burke, Jr. submitted for filing, an application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act (FPA), 16 U.S.C. 825d(b), Part 45 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45, and Order No. 664.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 19, 2016, Belvin Williamson, Jr. submitted for filing, an application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act (FPA), 16 U.S.C. 825d(b), Part 45 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45, and Order No. 664.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice of adequacy.
In this notice, the Environmental Protection Agency (EPA) is notifying the public that we have found that the motor vehicle emissions budgets (MVEBs) for volatile organic compounds (VOCs
This finding is effective October 12, 2016.
Anthony Maietta, Life Scientist, Control Strategies Section (AR-18J), Air Programs Branch, Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8777,
Throughout this document, whenever “we”, “us” or “our” is used, we mean EPA.
Today's notice is an announcement of a finding that we have already made. On August 23, 2016, EPA sent letters to the Indiana Department of Environmental Management and the Ohio Environmental Protection Agency transmitting our determination that the 2020 and 2030 MVEBs contained in the redesignations and maintenance plans for the Cleveland and Columbus, Ohio areas and Indiana and Ohio portions of the Cincinnati area are adequate for transportation conformity purposes. These MVEBs were announced on EPA's transportation conformity Web site, and no comments were submitted in response. The information is available at EPA's conformity Web site:
The Cleveland-Akron-Lorain ozone nonattainment area consists of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage, and Summit Counties. The Columbus ozone nonattainment area consists of Delaware, Fairfield, Franklin, Knox, Licking, and Madison Counties. The Indiana portion of the Cincinnati ozone nonattainment area consists of Lawrenceburg Township (located within Dearborn County, Indiana). The Ohio portion of the Cincinnati area consists of Butler, Clermont, Clinton, Hamilton, and Warren Counties. For transportation conformity purposes, the MVEBs for the Indiana and Ohio portions of the Cincinnati area are combined. The 2020 and 2030 MVEBs, in tons per day (tpd), for VOCs and NO
Transportation conformity is required by section 176(c) of the CAA. EPA's conformity rule requires that transportation plans, programs, and projects conform to state air quality implementation plans and establishes the criteria and procedures for determining whether or not they conform. Conformity to a State Implementation Plan (SIP) means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The criteria by which we determine whether a SIP's MVEBs are adequate for transportation conformity purposes are outlined in the regulation at 40 CFR 93.118(e)(4). As set forth above, EPA determined that these MVEBs are adequate under the applicable standards set forth in 40 CFR 93.118(e)(4). Please note that an adequacy review is separate from EPA's completeness review, and it also should not be used to prejudge EPA's ultimate approval of the SIP. Even if we find a budget adequate, the SIP could later be disapproved.
42 U.S.C. 7401-7671q.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) is providing notice of a new streamlined approval process for non-regulatory methods in the “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods” manual, also known as SW-846. This new process will employ the use of Web site postings and an extensive email list to notify the SW-846 scientific community of methods being released for public comment, which differs from the traditional
Christina Langlois-Miller, Office of Resource Conservation and Recovery (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460-0002; telephone number: 703-308-0744; email address:
This notice is directed to the public in general. It may, however, be of particular interest to those conducting waste sampling and analysis for RCRA-related activities. This universe might include any entity that generates, treats, stores, or disposes of hazardous or non-hazardous solid waste and might also
You may access this
The Agency is announcing a new streamlined process for adding non-regulatory methods to “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA publication SW-846. The SW-846 compendium consists of over 200 analytical methods for sampling and analyzing waste and other matrices. Most methods are intended as guidance (
Over the years, the regulated community has expressed concern that the Agency has not made available in a timely manner the use of analytical methods that take advantage of technological advancements. In an attempt to address the public's concern, the Agency published the Methods Innovation Rule (MIR), on June 14, 2005 (see 70 FR 34538-34592 or
Since most SW-846 methods are guidance and not required by the RCRA regulations, EPA sought a more efficient approach to announce the availability of methods for public use and to solicit comment prior to incorporating new or revised methods in the SW-846 compendium.
EPA receives requests to add or update SW-846 methods from various sources (
• Addresses a national emergency (
• Is essential for continuing the EPA mission (
• Is needed by EPA Regions/program offices (
• Addresses an emerging environmental contaminant (
• Makes available a new or updated technology (
• Is a collaborative effort with other federal agencies (
• Provides an opportunity for greener chemistry or increased safety (
Listed below are the new steps that EPA will follow for publication of non-regulatory SW-846 methods, beginning with final review from the SW-846 method workgroup. EPA will:
1. Obtain Agency organic and/or inorganic workgroup approval of new and/or revised methods.
a. Agency workgroups consist of EPA scientists from the Regions and program offices.
2. Post methods on the “Validated Methods” Web page at
3. Notify the SW-846 analytical community via emails and web posting of the comment-period initiation date. The comment period will be set for a minimum of 30 days, depending on the number and complexity of methods.
a. The Web pages will also indicate that the methods are drafts and that comments are being accepted until the end date of the comment period.
4. Catalog and respond to public comments in a “Response to Comments” document.
5. Revise methods based on EPA's review of comments.
6. Post the new and/or revised methods, the “Response to Comments” background document(s), and other supporting documents permanently on the “SW-846 Compendium” Web page at
7. Email the SW-846 mailing list, notifying all entities of the incorporation of the new additions to the SW-846 compendium.
If you would like to receive information regarding new policies, guidance related to SW-846 methods, announcements of open comment periods, and final changes or updates to methods in SW-846, it is important to sign up for the SW-846 mailing list. The form to sign up for the SW-846 mailing list is located at
The Agency also plans to find the email addresses of previous commenters on Updates to SW-846 to notify them of the new process and to see if they would like to be placed on the SW-846 mailing list.
This new approach to announcing SW-846 methods for public comment will allow EPA to make available new advancements in technologies in a timely manner and provide increased accessibility to analytical procedures, guidance, and Updates to SW-846, while still employing a mechanism to request public comment and incorporate comments into the final methods. In addition, the new process will result in a cost savings for the Agency since it removes the burden of unnecessary steps in releasing guidance to the public while retaining the appropriate steps to ensure EPA's standard of quality and integrity.
Environmental Protection Agency (EPA).
Notice of final action.
Pursuant to Clean Air Act (CAA) Section 505(b)(2) and 40 CFR 70.8(d), the Environmental Protection Agency (EPA) Administrator signed an Order, dated August 31, 2016, denying in part and granting in part a petition asking EPA to object to the operating permit issued by the Louisiana Department of Environmental Quality (LDEQ) to Yuhuang Chemical Company, Inc. for its Methanol Plant (Title V operating permit 1560-00295-V0). The EPA's August 31, 2016 Order responds to a petition submitted by the Louisiana Environmental Action Network (LEAN) and Sierra Club (Collectively the Petitioners) on May 18, 2015. Sections 307(b) and 505(b)(2) of the Act provide that a petitioner may ask for judicial review of those portions of the Orders that deny objections raised in the petitions in the appropriate United States Court of Appeals. Any petition for review shall be filed by November 28, 2016, pursuant to section 307(b) of the Act.
You may review copies of the final Order, the petition, and other supporting information at EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
EPA requests that if at all possible, you contact the individual listed in the
Brad Toups at (214) 665-7258, email address:
The CAA affords EPA a 45-day period to review, and object, as appropriate, to a title V operating permit proposed by a state permitting authority. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator, within 60 days after the expiration of this review period, to object to a title V operating permit if EPA has not done so. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or unless the grounds for the issue arose after this period.
EPA received the petition from the Petitioners on May 18, 2015 for the operating permit issued on May 5, 2015 to Yuhuang Chemical Facility located in St. James Parish, Louisiana.
The Petitioner requested that the Administrator object to the proposed operating permit issued by the LDEQ to Yuhuang on several bases. In total, the Petitioner raised four primary claims in the Petition. The claims are described in detail in Section IV of the Order. In summary, the issues raised are that: (1, claim III) the permit fails to comply with the Act's requirements for public participation; (2, claim IV) the permit fails to meet PSD requirements; (3, claim V) a tank design is hazardous and there are additional unaccounted for emissions; and (4, claim VI) the LDEQ failed to adequately respond to EPA's comments. The Order issued on August 31, 2016 responds to claims III, IV, V, and VI (pp. 6-30).
Pursuant to sections 505(b) and 505(e) of the Clean Air Act (42 U.S.C. 7661d(b) and (e)) and 40 CFR 70.7(g) and 70.8(d), the Louisiana Department of Environmental Quality (LDEQ) has 90 days from the receipt of the Administrator's order to resolve the objections identified in Claim IV of the Order and submit a proposed determination or termination, modification, or revocation and reissuance of the Yuhuang Chemical Company, Inc. title V permit in accordance with the EPA's objection. The Order issued on August 31, 2016 responds to the Petition and explains the basis for EPA's decision.
In notice document 2016-22522 beginning on page 64461 in the issue of Tuesday, September 20, 2016, make the following correction:
On page 63361, in the third column, under the
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10009 First Heritage Bank, N.A., Newport Beach, California (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of First Heritage Bank, N.A. (Receivership Estate). The Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary;
Effective September 1, 2016, the Receivership Estate has been terminated, the Receiver discharged, and the Receivership Estate has ceased to exist as a legal entity.
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10261 Turnberry Bank, Aventura, Florida (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of Turnberry Bank (Receivership Estate). The Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary; including but not limited to releases, discharges, satisfactions, endorsements, assignments, and deeds.
Effective September 1, 2016, the Receivership Estate has been terminated, the Receiver discharged, and the Receivership Estate has ceased to exist as a legal entity.
Federal Deposit Insurance Corporation (FDIC).
Notice of Designated Reserve Ratio for 2017.
Pursuant to the Federal Deposit Insurance Act, the Board of Directors of the Federal Deposit Insurance Corporation designates that the Designated Reserve Ratio (DRR) for the Deposit Insurance Fund shall remain at 2 percent for 2017.
Munsell St. Clair, Chief, Banking and Regulatory Policy Section, Division of Insurance and Research, (202) 898-8967; Robert Grohal, Chief, Fund Analysis and Pricing Section, Division of Insurance and Research, (202) 898-6939; or, Sheikha Kapoor, Senior Counsel, Legal Division, (202) 898-3960.
By order of the Board of Directors.
Federal Election Commission.
Thursday, September 29, 2016 at 10:00 a.m.
999 E Street NW., Washington, DC (Ninth Floor).
This Meeting Will Be Open to the Public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220
Board of Governors of the Federal Reserve System.
Notice and request for comment regarding the Federal Reserve proposal to extend with revision, the clearance under the Paperwork Reduction Act for the following information collection activity.
The Board of Governors of the Federal Reserve System (Board or Federal Reserve) invites comment on a proposal to extend, with revision, the Joint Standards for Assessing Diversity Policies and Practices (Policy Statement).
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), to approve of and assign OMB numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB number.
Comments must be submitted on or before November 28, 2016.
You may submit comments, identified by
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All public comments are available from the Board's Web site at
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street NW., Washington, DC 20503 or by fax to (202) 395-6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
The Standard regarding transparency, and a portion of the self-assessment Standard, call for regulated entities to provide information to the public, so confidentiality is not an issue with respect to those aspects of the Policy. A regulated entity may provide self-assessment material to the Board that contains confidential commercial information protectable under exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), and may request that the information be kept confidential on a case-by-case basis. The Federal Reserve will determine whether the information is entitled to confidential treatment on an ad hoc basis in connection with such a request. As noted in the Policy Statement, an entity's primary federal regulator may share information obtained from regulated entities with other Agencies, but will publish information disclosed to them only in a form that does not identify a particular entity or individual or disclose confidential business information.
The Depository Library Council (DLC) to the Director, Government Publishing Office (GPO) will meet on Monday, October 17, 2016 through Wednesday, October 19, 2016 in Arlington, Virginia. The sessions will take place from 8 a.m. to 5:30 p.m., Monday and Tuesday and 8:00 a.m. to 12:30 p.m., on Wednesday. The meeting will be held at the Doubletree Hotel, 300 Army Navy Drive, Arlington, Virginia. The purpose of this meeting is to discuss the Federal Depository Library Program. All sessions are open to the public. The United States Government Publishing Office is in compliance with the requirements of Title III of the Americans with Disabilities Act and meets all Fire Safety Act regulations.
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 81 FR 54091-54094, dated August 15, 2016) is amended to reflect the reorganization of the Office of Safety, Security and Asset Management, Office of the Chief Operating Officer, Centers for Disease Control and Prevention.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete and replace the title and the mission and function statements for the
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 81 FR 54091-54094, dated August 15, 2016) is amended to reflect the reorganization of the Division of Healthcare Quality and Promotion, National Center for Emerging and Zoonotic Infectious Diseases, Office of Infectious Diseases, Centers for Disease Control and Prevention.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete and replace the title and the mission and function statements for the
Part C (Centers for Disease Control and Prevention) of the Statement of
Section C-B, Organization and Functions, is hereby amended as follows:
Insert item (10) ensures compliance with and manages the infectious diseases Clinical Laboratory Improvement Amendments (CLIA) unit within the
Delete item (5) ensures scientific quality and ethical and regulatory compliance of center activities within the
In compliance with the requirements of the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chap 35) Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW., Washington DC 20201. Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, Office of the Secretary, U.S. Department of Health and Human Services.
Notice.
As stipulated by the Federal Advisory Committee Act (FACA), the U.S. Department of Health and Human Services (HHS) is hereby giving notice that a meeting of the 2018 Physical Activity Guidelines Advisory Committee (2018 PAGAC or Committee) will be held. This meeting will be open to the public.
The meeting will be held on October 27, 2016, from 2:15 p.m. E.D.T. to 5 p.m. E.D.T. and on October 28, 2016, from 8:00 a.m. E.D.T. to 3:30 p.m. E.D.T.
The meeting will be accessible by webcast on the Internet or by attendance in-person. For in-person participants, the meeting will take place in the National Institutes of Health (NIH) Masur Auditorium, NIH Clinical Center, Building 10. The facility is
Designated Federal Officer, 2018 Physical Activity Guidelines Advisory Committee, Richard D. Olson, M.D., M.P.H. and/or Alternate Designated Federal Officer, Katrina L. Piercy, Ph.D., R.D., Office of Disease Prevention and Health Promotion (ODPHP), Office of the Assistant Secretary for Health (OASH), HHS; 1101 Wootton Parkway, Suite LL-100; Rockville, MD 20852; Telephone: (240) 453-8280. Additional information is available at
The inaugural
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). The ICR is for extending the use of the approved information collection assigned OMB control number 0990-0001, which expires on December 31, 2016. Prior to submitting the ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before November 28, 2016.
Submit your comments to
When submitting comments or requesting information, please include the document identifier HHS-OS-0990-0001-60D for reference.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Behavioral Health Statistics and Quality (CBHSQ) is requesting a revision to the National Mental Health Services Survey (N-MHSS) (OMB No. 0930-0119), which expires on February 28, 2017. The N-MHSS provides annual national and state-level data on the number and characteristics of mental health treatment facilities in the United States and biennial national and state-level data on the number and characteristics of persons treated in these facilities.
The N-MHSS will provide updated information about facilities for SAMHSA's online Behavioral Health Treatment Services Locator (see:
This request for a revision seeks to change the content of the currently approved abbreviated N-MHSS (
(1) Collection of information from the total N-MHSS universe of mental health treatment facilities during 2017, 2018, and 2019; and
(2) collection of information on newly identified facilities throughout the year as they are identified so that new facilities can quickly be added to the online Locator.
The survey mode for both data collection activities will be web with telephone follow-up. A paper questionnaire will also be available to facilities who request one.
The database resulting from the N-MHSS will be used to update SAMHSA's online Behavioral Health Treatment Services Locator and to produce an electronic version of a national directory of mental health facilities, for use by the general public, behavioral health professionals, and
The request for OMB approval will include a request to conduct an abbreviated N-MHSS-Locator survey in 2017 and 2019, and the full-scale N-MHSS in 2018.
The following table summarizes the estimated annual response burden for the N-MHSS:
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, MD 20857
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of a Federal Advisory committee meeting: Manufactured Housing Consensus Committee.
This notice sets forth the schedule and proposed agenda for a meeting of the Manufactured Housing Consensus Committee (MHCC). The meeting is open to the public and the site is accessible to individuals with disabilities. The agenda provides an opportunity for citizens to comment on the business before the MHCC.
The meeting will be held on October 25 thru October 27, 2016, 9:00 a.m. to 5:00 p.m. Eastern Standard Time (EST) daily.
The meeting will be held at the Holiday Inn Washington—Capitol, 550 C Street SW., Washington, DC 20024.
Pamela Beck Danner, Administrator, Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 7th Street SW., Room 9166, Washington, DC 20410, telephone (202) 708-6423 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act, 5. U.S.C. App. 10(a)(2) through implementing regulations at 41 CFR 102-3.150. The MHCC was established by the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5403(a)(3), as amended by the Manufactured Housing Improvement Act of 2000, (Pub. L. 106-569). According to 42 U.S.C. 5403, as amended, the purposes of the MHCC are to:
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the Federal manufactured housing construction and safety standards in accordance with this subsection;
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations, including regulations specifying the permissible scope and conduct of monitoring in accordance with subsection (b);
• Be organized and carry out its business in a manner that guarantees a fair opportunity for the expression and consideration of various positions and for public participation. The MHCC is deemed an advisory committee not composed of Federal employees.
Citizens wishing to comment on the business of the MHCC are encouraged to register by or before October 19, 2016, by contacting Home Innovation Research Labs; Attention: Kevin Kauffman, 400 Prince Georges Blvd., Upper Marlboro, MD 20774, or email to
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications for a permit to conduct activities intended to enhance the survival of endangered species. Federal law prohibits certain activities with endangered species unless a permit is obtained.
To ensure consideration, please send your written comments by October 27, 2016.
Documents and other information submitted with the applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to the following office within 30 days of the date of publication of this notice. You may use one of the following methods to request hard copies or a CD-ROM of the documents. Please specify the permit you are interested in by number (
•
•
•
Kathy Konishi, Recovery Permits Coordinator, Ecological Services, (719) 628-2670 (phone);
The Act (16 U.S.C. 1531
A permit granted by us under section 10(a)(1)(A) of the Act authorizes the permittees to conduct activities with U.S. endangered or threatened species for scientific purposes, enhancement of propagation or survival, or interstate commerce (the latter only in the event that it facilitates scientific purposes or enhancement of propagation or survival). Our regulations implementing section 10(a)(1)(A) for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
We invite local, State, and Federal agencies and the public to comment on the following applications. Documents and other information the applicants have submitted with their applications are available for review, subject to the requirements of the Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552).
The applicant requests the renewal of their permit to continue surveying and monitoring activities for black-footed ferrets (
The applicant requests the renewal and assignment of a new recovery permit number for presence/absence surveys of pallid sturgeon (
The applicant requests a renewal to propagate and rear Wyoming toad (
The applicant requests the renewal of their permit to continue presence/absence surveys for black-footed ferrets (
The applicant requests a renewal to propagate and rear Wyoming toad (
The applicant requests a recovery permit for presence/absence surveys for Southwestern willow flycatcher (
The proposed activities in the requested permits qualify as categorical exclusions 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).
All comments and materials we receive in response to these requests will be available for public inspection, by appointment, during normal business hours at the address listed above in
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.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
National Indian Gaming Commission, Interior.
Second notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the National Indian Gaming Commission (NIGC or Commission) is announcing its submission, concurrently with the publication of this notice or soon thereafter, of the following information collection requests to the Office of Management and Budget (OMB) for review and approval.
The Commission is seeking comments on the renewal of information collections for the following activities: (i) Compliance and enforcement actions under the Indian Gaming Regulatory Act as authorized by OMB Control Number 3141-0001; (ii) tribal gaming ordinance approvals, background investigations, and issuance of licenses as authorized by OMB Control Number 3141-0003; (iii) National Environmental Policy Act submissions as authorized by OMB Control Number 3141-0006; and (iv) issuance to tribes of certificates of self-regulation for class II gaming as authorized by OMB Control Number 3141-0008. These information collections all expire on October 31, 2016.
The OMB has up to 60 days to approve or disapprove the information collection requests, but may respond after 30 days. Therefore, public comments should be submitted to OMB by no later than October 27, 2016 in order to be assured of consideration.
Submit comments directly to OMB's Office of Information and Regulatory Affairs, Attn: Policy Analyst/Desk Officer for the National Indian Gaming Commission. Comments can also be emailed to
For further information, including copies of the proposed collections of information and supporting documentation, contact Tim Osumi at (202) 632-7054; fax (202) 632-7066 (not toll-free numbers). You may also review these information collection requests by going to
The gathering of this information is in keeping with the purposes of the Indian Gaming Regulatory Act of 1988 (IGRA or the Act), Public Law 100-497, 25 U.S.C. 2701,
Section 571.7(a) requires Indian gaming operations to keep/maintain permanent books of account and records sufficient to establish the amount of gross and net income, deductions and expenses, receipts and disbursements, and other relevant financial information. Section 571.7(c) requires that these records be kept for at least five years. Under § 571.7(b), the Commission may require a gaming operation to submit statements, reports, accountings, and specific records that will enable the NIGC to determine whether or not such operation is liable for fees payable to the Commission (and in what amount). Section 571.7(d) requires a gaming operation to keep copies of all enforcement actions that a tribe or a state has taken against the operation.
Section 571.12 requires tribes to prepare comparative financial statements covering all financial activities of each class II and class III gaming operation on the tribe's Indian lands, and to engage an independent certified public accountant to provide an annual audit of the financial statements of each gaming operation. Section 571.13 requires tribes to prepare and submit to the Commission two paper copies or one electronic copy of the financial statements and audits, together with management letter(s) and other documented auditor communications and/or reports as a result of the audit, setting forth the results of each fiscal year. The submission must be sent to the Commission within 120 days after the end of the fiscal year of each gaming operation, including when a gaming operation changes its fiscal year or when gaming ceases to operate. Section 571.14 requires tribes to reconcile quarterly fee reports with audited financial statements and to keep/maintain this information to be available to the NIGC upon request in order to facilitate the performance of compliance audits.
This information collection is mandatory and allows the Commission to fulfill its statutory responsibilities under IGRA to regulate gaming on Indian lands.
Sections 519.1 and 519.2 require a tribe, management contractor, and a tribal operator to designate an agent for service of process, and § 522.2(g) requires it to be submitted by written notification to the Commission. Section 522.2(a) requires a tribe to submit a copy of an ordinance or resolution certified as authentic, and that meets the approval requirements in 25 CFR 522.4(b) or 522.6. Sections 522.10 and 522.11 require tribes to submit, respectively, an ordinance for the licensing of individually owned gaming operations other than those operating on September 1, 1986, and for the licensing of individually owned gaming operations operating on September 1, 1986. Section 522.3(a) requires a tribe to submit an amendment to an ordinance or resolution within 15 days after adoption of such amendment.
Section 522.2(b)-(h) requires tribes to submit to the Commission: (i) Procedures that the tribe will employ in conducting background investigations on key employees and PMOs, and to ensure that key employees and PMOs are notified of their rights under the Privacy Act; (ii) procedures that the tribe will use to issue licenses to key employees and PMOs; (iii) copies of all tribal gaming regulations; (iv) a copy of any applicable tribal-state compact or procedures as prescribed by the Secretary of the Interior; (v) procedures for resolving disputes between the gaming public and the tribe or the management contractor; and (vi) the identification of the law enforcement agent that will take fingerprints and the procedures for conducting criminal history checks, including a check of criminal history records information maintained by the Federal Bureau of Investigation. Section 522.3(b) requires a tribe to submit any amendment to these submissions within 15 days after adoption of such amendment. Section 522.12(a) requires a tribe to submit to the Commission a copy of an authentic ordinance revocation or resolution.
Section 556.4 requires tribes to mandate the submission of the following information from applicants for key employee and PMO positions: (i) Name(s), Social Security number(s), date and place of birth, citizenship, gender, and languages; (ii) present and past business and employment positions, ownership interests, business and residential addresses, and driver's license number(s); (iii) the names and addresses of personal references; (iv) current business and personal telephone numbers; (v) a description of any existing and previous business relationships with Indian tribes, including ownership interests; (vi) a description of any existing and previous business relationships with the gaming industry generally, including ownership interests; (vii) the name and address of any licensing/regulatory agency with which the person has filed an application for a license or permit related to gaming, even if the license or permit was not granted; (viii) for each ongoing felony prosecution or conviction, the charge, the name and address of the court, and the date and
Sections 556.6(a) and 558.3(e) require tribes to keep/maintain the individuals' complete application files, investigative reports, and eligibility determinations during their employment and for at least three years after termination of their employment. Section 556.6(b)(1) requires tribes to create and maintain an investigative report on each background investigation that includes: (i) The steps taken in conducting a background investigation; (ii) the results obtained; (iii) the conclusions reached; and (iv) the basis for those conclusions. Section 556.6(b)(2) requires tribes to submit, no later than 60 days after an applicant begins work, a notice of results of the applicant's background investigation that includes: (i) The applicant's name, date of birth, and Social Security number; (ii) the date on which the applicant began or will begin work as a key employee or PMO; (iii) a summary of the information presented in the investigative report; and (iv) a copy of the eligibility determination.
Section 558.3(b) requires a tribe to notify the Commission of the issuance of PMO and key employee licenses within 30 days after such issuance. Section 558.3(d) requires a tribe to notify the Commission if the tribe does not issue a license to an applicant, and requires it to forward copies of its eligibility determination and notice of results to the Commission for inclusion in the Indian Gaming Individuals Record System. Section 558.4(e) requires a tribe, after a gaming license revocation hearing, to notify the Commission of its decision to revoke or reinstate a gaming license within 45 days of receiving notification from the Commission that a specific individual in a PMO or key employee position is not eligible for continued employment.
These information collections are mandatory and allow the Commission to carry out its statutory duties.
Amongst other actions necessary to carry out the Commission's statutory duties, the Act requires the NIGC Chair to review and approve third-party management contracts that involve the operation of tribal gaming facilities. 25 U.S.C. 2711. The Commission has taken the position that the NEPA process is triggered when a tribe and a potential contractor seek approval of a management contract. Normally, an EA or EIS and its supporting documents are prepared by an environmental consulting firm and submitted to the Commission by the tribe. In the case of an EA, the Commission independently evaluates the NEPA document, verifies its content, and assumes responsibility for the accuracy of the information contained therein. In the case of an EIS, the Commission directs and is responsible for the preparation of the NEPA document, but the tribe or potential contractor is responsible for paying for the preparation of the document. The information collected includes, but is not limited to, maps, charts, technical studies, correspondence from other agencies (federal, tribal, state, and local), and comments from the public. These information collections are mandatory and allow the Commission to carry out its statutory duties.
Section 518.3(e) requires a tribe's gaming operation(s) and the tribal regulatory body (TRB) to have kept all records needed to support the petition for self-regulation for the three years immediately preceding the date of the petition submission. Section 518.4 requires a tribe petitioning for a certificate of self-regulation to submit the following to the Commission,
Submission of the petition and supporting documentation is voluntary. Once a certificate of self-regulation has been issued, the submission of certain other information is mandatory.
Regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, require that interested members of the public have an opportunity to comment on an agency's information collection and recordkeeping activities.
The Commission will submit the preceding requests to OMB to renew its approval of the information collections. The Commission is requesting a three-year term of approval for each of these information collection and recordkeeping activities.
You are again invited to comment on these collections concerning: (i) Whether the collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (ii) the accuracy of the agency's estimates of the burdens (including the hours and cost) of the proposed collections of information, including the validity of the methodologies and assumptions used; (iii) ways to enhance the quality, utility, and clarity of the information to be collected; (iv) ways to minimize the burdens of the information collections on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or forms of information technology. It should be noted that as a result of the Commission reviewing its own records that track the number of tribal and/or management contractor submissions and after surveying tribal gaming operators, tribal gaming regulatory authorities, and/or management contractors regarding the Commission's submission and recordkeeping requirements, many of the previously published burden estimates have changed since the publication of the Commission's 60-day notice on June 6, 2016. If you wish to comment in response to this notice, you may send your comments to the office listed under the
Comments submitted in response to this second notice will be summarized and become a matter of public record. The NIGC will not request nor sponsor a collection of information, and you need not respond to such a request, if there is no valid OMB Control Number.
National Park Service, Interior.
Meeting notice.
This notice sets forth the meeting date of the Chesapeake and Ohio Canal National Historical Park Commission.
The public meeting of the Chesapeake and Ohio Canal National Historical Park Commission will be held on Thursday, October 6, 2016, at 9:00 a.m. (EASTERN).
The meeting of the Commission will be held on Thursday, October 6, 2016, at 9:00 a.m., in the second floor conference room at park headquarters, 1850 Dual Highway, Suite 100, Hagerstown, Maryland 21740.
Kevin D. Brandt, Superintendent and Designated Federal Officer, Chesapeake and Ohio Canal National Historical Park, 1850 Dual Highway, Suite 100, Hagerstown, Maryland, 21740-6620, or by email
The Commission is established by Section 6 of the Chesapeake and Ohio Canal Development Act (16 U.S.C. 410y-4), Public Law 91-664, 84 Stat. 1978 (1971), as amended, and is regulated by the Federal Advisory Committee Act, as amended, 5 U.S.C. Appendix 1-16. The purpose of the Commission is to consult with the Secretary of the Interior, or her designee, with respect to matters relating to the development of the Chesapeake and Ohio Canal National Historical Park, and with respect to carrying out the provisions of section 6 establishing the Canal.
The agenda for the meeting is as follows:
The meeting is open to the public. It is expected that 15 persons will be able to attend the meeting in addition to Commission members. Interested persons may make oral/written presentations to the Commission during the business meeting or file written statements. Such requests should be made to the park superintendent prior to the meeting. Before including your address, telephone 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 may 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.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigation Nos. 701-TA-564 and 731-TA-1338-1340 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of steel concrete reinforcing bar (rebar) from Japan, Taiwan, and Turkey, provided for in subheadings 7213.10.00, 7214.20.00, and 7228.30.80 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and alleged to be subsidized by the Government of Turkey. Unless the Department of Commerce extends the time for initiation, the Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by November 4, 2016. The Commission's views must be transmitted to Commerce within five business days thereafter, or by November 14, 2016.
Joanna Lo (202-205-1888 or
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the 100-day initial determination (“ID”) of the presiding administrative law judge (“ALJ”) finding the asserted claims of U.S. Patent No. 6,928,433 invalid under 35 U.S.C. 101. The investigation is terminated.
Houda Morad, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-4716. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted Investigation No. 337-TA-994 on May 11, 2016, based on a complaint filed by Creative Technology Ltd. of Singapore and Creative Labs, Inc. of Milpitas, California (collectively, “Creative”).
The notice of investigation also directed the ALJ to “hold an early evidentiary hearing, find facts, and issue an early decision, as to whether the asserted claims of the '433 patent recite patent-eligible subject matter under 35 U.S.C. 101” (
Accordingly, the ALJ conducted an evidentiary hearing on July 6-7, 2016, and on August 19, 2016, within 100 days of institution, the ALJ issued his ID finding that the asserted claims are directed to ineligible subject matter (
On August 29, 2016, Creative filed a petition for review and on September 1, 2016, Respondents, Intervenor, and OUII filed replies in opposition to Creative's petition.
The Commission has determined not to review the ID. The investigation is terminated.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. Copyright Office, Library of Congress.
Notice of Inquiry.
The United States Copyright Office is requesting additional written comments in connection with its ongoing study on the operation of the statutory provisions regarding the circumvention of copyright protection systems. This request provides an opportunity for interested parties to address certain issues raised by various members of the public in response to the Office's initial Notice of Inquiry.
Written comments must be received no later than 11:59 p.m. Eastern Time on October 27, 2016. Written reply comments must be received no later than 11:59 p.m. Eastern Time on November 16, 2016.
The Copyright Office is using the
Kevin R. Amer, Senior Counsel for Policy and International Affairs, by email at
At the request of the Ranking Member of the House Committee on the Judiciary, the Copyright Office is conducting a study to assess the operation of section 1201 of title 17. In December 2015, the Office issued a Notice of Inquiry identifying several aspects of the statutory and regulatory framework that the Office believes are ripe for review, and inviting public comment on those and any other pertinent issues.
In the written comments and during the roundtables, parties expressed a variety of views regarding whether legislative amendments to section 1201 may be warranted. Among other suggested changes, commenters discussed proposals to update the statute's permanent exemption framework and to amend the anti-trafficking provisions to permit third-party assistance with lawful circumvention activities. At this time, as explained below, the Office is interested in receiving additional stakeholder input on particular aspects of those proposals. In addition, parties submitted numerous and varied views regarding the triennial rulemaking process under section 1201(a)(1)(C); while the Office continues to thoroughly evaluate these comments in conducting its study, this second Notice of Inquiry does not specifically address those issues.
A party choosing to respond to this Notice of Inquiry need not address every topic below, but the Office requests that responding parties clearly identify and separately address those subjects for which a response is submitted. Parties also are invited to address any other pertinent issues that the Office should consider in conducting its study.
a.
(i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels, or
(ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.
b.
(A) Wireless telephone handsets (
(B) All-purpose tablet computers;
(C) Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and
(D) Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices.
The Office invites comment on whether an unlocking exemption would be appropriate for adoption as a permanent exemption or whether such activities are more properly considered as part of the triennial rulemaking. For commenters who favor consideration of a permanent exemption, the Office is interested in commenters' views on whether the language of the 2015 unlocking exemption would be appropriate for adoption as a permanent exemption, or whether there are specific changes or additional provisions that Congress may wish to consider.
c.
For purposes of focusing the discussion, the Office invites comment on whether there are specific formulations of such an exemption that could serve as helpful starting points for further consideration of legislation. For example, Congress could consider adoption of a permanent exemption for purposes of diagnosis, maintenance, and repair. Such legislation could provide that a person who has lawfully obtained the right to use a computer program may circumvent a TPM controlling access to that program, so long as the circumvention is undertaken for purposes of diagnosis, maintenance, or repair. Are existing legal doctrines or statutes, such as the current language addressing machine maintenance and repair in section 117(c),
Please also comment upon whether it would be advisable to consider, in addition to diagnosis, maintenance, or repair, an exemption to explicitly permit circumvention for purposes of engaging in any lawful modification of a computer program. Such an exemption could allow circumventions undertaken to make non-infringing adaptations, including, for example, uses permitted under section 117(a) and/or the fair use doctrine.
With either formulation, would concerns over enabling unauthorized uses be mitigated by conditioning the exemption on the circumventing party not engaging in any unauthorized use of a copyrighted work other than the accessed computer program, or by limiting the exemption to computer programs that are “not a conduit to protectable expression”—
The Office is interested in commenters' views on the advisability of these various approaches. Which of these models, if any, would facilitate users' ability to engage in permissible uses of software, while preserving congressional intent in supporting new ways of disseminating copyrighted materials to users?
d.
e.
Some parties expressed the view that the existing permanent exemptions for security testing, encryption research, and reverse engineering
a. In the 2015 rulemaking, the Register recommended, and the Librarian of Congress adopted, an exemption that permits circumvention of TPMs controlling access to computer programs in the following circumstances:
(i) . . . the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates solely for the purpose of good-faith security research and does not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986, as amended and codified in title 18, United States Code; . . . and the device or machine is one of the following:
(A) A device or machine primarily designed for use by individual consumers (including voting machines);
(B) A motorized land vehicle; or
(C) A medical device designed for whole or partial implantation in patients or a corresponding personal monitoring system, that is not and will not be used by patients or for patient care.
(ii) For purposes of this exemption, “good-faith security research” means accessing a computer program solely for purposes of good-faith testing, investigation and/or correction of a security flaw or vulnerability, where such activity is carried out in a controlled environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement.
The Office is interested in commenters' views on whether this language would be appropriate for adoption as a permanent exemption, or whether there are specific changes or additional provisions that Congress may wish to consider.
b. The exemption for security testing under section 1201(j) is limited to activities undertaken “with the authorization of the owner or operator of [the] computer, computer system, or computer network.”
c. Section 1201(j) provides a two-factor framework to determine whether a person qualifies for the security testing exemption.
d. The exemption for encryption research in section 1201(g) is similarly limited to activities qualifying under a four-factor framework that includes making “a good faith effort to obtain authorization” before the circumvention.
e. Section 1201(f) permits circumvention for the “sole purpose” of identifying and analyzing elements of computer programs necessary to achieve interoperability.
Commenters offered differing views regarding the role of the anti-trafficking provisions under sections 1201(a)(2) and 1201(b). User groups expressed
a. A few parties argued that section 1201 contains an implied right permitting a beneficiary of a statutory or administrative exemption to make a tool for his or her own use in engaging in the permitted circumvention. What are commenters' views regarding this interpretation of the statute? To what extent, if any, does the statutory prohibition on the “manufacture” of circumvention tools affect the analysis?
b. Some parties suggested that, in certain circumstances, third-party assistance may fall outside the scope of the anti-trafficking provisions and therefore may be permissible under current law. What are commenters' views regarding this interpretation of the statute? Are there forms of third-party assistance that do not qualify as a “service” within the meaning of sections 1201(a)(2) and 1201(b)(1)? If so, what considerations are relevant to this analysis?
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA International Space Station (ISS) Advisory Committee. The purpose of the meeting is to review all aspects related to the safety and operational readiness of the ISS, and to assess the possibilities for using the ISS for future space exploration.
Monday, October 31, 2016, 2:00-3:00 p.m., Local Time.
NASA Headquarters, Glennan Conference Room (1Q39), 300 E Street SW., Washington, DC 20546. Note: 1Q39 is located on the first floor of NASA Headquarters.
Mr. Patrick Finley, Office of International and Interagency Relations, (202) 358-5684, NASA Headquarters, Washington, DC 20546-0001.
This meeting will be open to the public up to the seating capacity of the room. This meeting is also accessible via teleconference. To participate telephonically, please contact Mr. Finley at (202) 358-5684 before 4:30 p.m., Local Time, October 26, 2016. You will need to provide your name, affiliation, and phone number.
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Due to the Real ID Act, Public Law 109-13, any attendees with driver's licenses issued from non-compliant states/territories must present a second form of ID. [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Minnesota, Missouri, and Washington. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; passport information (number, country, telephone); visa information (number, type, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Mr. Finley via email at
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. This is the second notice for public comment; the first was published in the
Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling 703-292-7556.
NSF 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.
After consideration of this comment, we are moving forward with our submission to OMB.
NSECs enable and foster excellent education, integrate research and education, and create bonds between learning and inquiry so that discovery and creativity more fully support the learning process. NSECs capitalize on diversity through participation in center activities and demonstrate leadership in the involvement of groups underrepresented in science and engineering.
NSECs are required to submit annual reports on progress and plans, which are used as a basis for performance review and determining the level of continued funding. To support this review and the management of a Center, NSECs are required to develop a set of management and performance indicators for submission annually to NSF via the Research Performance Project Reporting module in
Each Center's annual report addresses the following categories of activities: (1) Research, (2) education, (3) knowledge transfer, (4) partnerships, (5) diversity, (6) management, and (7) budget issues.
For each of the categories the report will describe overall objectives for the year, problems the Center has encountered in making progress towards goals, anticipated problems in the following year, and specific outputs and outcomes.
NSECs are required to file a final report through the RPPR and external technical assistance contractor. Final reports contain similar information and metrics as annual reports, but are retrospective.
National Science Foundation.
Notice of permit applications received under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 671 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by October 27, 2016. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Division of Polar Programs, National
Nature McGinn, ACA Permit Officer, at the above address or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas as requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
October 31, 2016 to March 13, 2017.
Pursuant to delegation by the Commission,
This proceeding involves a challenge to an application by Tennessee Valley Authority for an amendment to the operating licenses for the Browns Ferry Nuclear Plant Units 1, 2, and 3, located in Athens, Alabama. In response to a
The Board is comprised of the following Administrative Judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule.
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued, from August 30, 2016, to September 12, 2016. The last biweekly notice was published on September 13, 2016.
Comments must be filed by October 27, 2016. A request for a hearing must be filed by November 28, 2016.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Janet Burkhardt, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1384, email:
Please refer to NRC-2016-0202, facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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•
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Please include Docket ID NRC-2016-0202 facility name, unit number(s), plant docket number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and a petition to intervene (petition) with respect to issuance of the amendment to the subject facility operating license or combined license. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest. The petition must also set forth the specific contentions which the petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with the NRC's regulations, policies, and procedures.
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)-(iii).
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1).
The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by November 28, 2016. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene (hereinafter “petition”), and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a petition. Submissions should be in Portable Document Format (PDF). Additional guidance on PDF submissions is available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
The Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS Chapter 5, “Administrative Controls,” Section 5.5, “Programs and Manuals,” by eliminating the “Inservice Testing Program” specification. Most requirements in the Inservice Testing Program are removed, as they are duplicative of requirements in the ASME OM Code, as clarified by Code Case OMN-20, “Inservice Test Frequency,” which has been approved for use at Columbia. The remaining requirements in the Section 5.5 IST Program are eliminated because the NRC has determined their inclusion in the TS is contrary to regulations. A new defined term, “Inservice Testing Program,” is added to the TS, which references the requirements of 10 CFR 50.55a(f).
Performance of inservice testing is not an initiator to any accident previously evaluated. As a result, the probability of occurrence of an accident is not significantly affected by the proposed change. Inservice test frequencies under Code Case OMN-20 are equivalent to the current testing period allowed by the TS with the exception that testing frequencies greater than 2 years may be extended by up to 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to mitigate any accident previously evaluated as the components are required to be operable during the testing period extension. Performance of inservice tests utilizing the
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the design or configuration of the plant. The proposed change does not involve a physical alteration of the plant; no new or different kind of equipment will be installed. The proposed change does not alter the types of inservice testing performed. In most cases, the frequency of inservice testing is unchanged. However, the frequency of testing would not result in a new or different kind of accident from any previously evaluated since the testing methods are not altered.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change eliminates some requirements from the TS in lieu of requirements in the ASME Code, as modified by use of Code Case OMN-20. Compliance with the ASME Code is required by 10 CFR 50.55a. The proposed change also allows inservice tests with frequencies greater than 2 years to be extended by 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to respond to an accident as the components are required to be operable during the testing period extension. The proposed change will eliminate the existing TS SR 3.0.3 allowance to defer performance of missed inservice tests up to the duration of the specified testing frequency, and instead will require an assessment of the missed test on equipment operability. This assessment will consider the effect on a margin of safety (equipment operability). Should the component be inoperable, the Technical Specifications provide actions to ensure that the margin of safety is protected. The proposed change also eliminates a statement that nothing in the ASME Code should be construed to supersede the requirements of any TS. The NRC has determined that statement to be incorrect. However, elimination of the statement will have no effect on plant operation or safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment affects the Columbia Generating Station (Columbia) Emergency Plan (EP) and associated Emergency Action Levels (EALs); it does not alter the Operating License or the Technical Specifications. The proposed amendment does not change the design function of any system, structure, or component and does not change the way the plant is maintained or operated. The proposed amendment does not affect any accident mitigating feature or increase the likelihood of malfunction for plant structures, systems, and components.
The proposed amendment will not change any of the analyses associated with the Columbia Final Safety Analysis Report Chapter 15 accidents because plant operation, structures, systems, components, accident initiators, and accident mitigation functions remain unchanged.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment affects the Columbia EP and associated EALs; it does not change the design function of any system, structure, or component and does not change the way the plant is operated or maintained. The proposed amendment does not create a credible failure mechanism, malfunction, or accident initiator not already considered in the design and licensing basis.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Margin of safety is associated with the ability of the fission product barriers (
Therefore, the proposed amendment does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Do the proposed amendments involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The requested changes delete certain license conditions pertaining to the decommissioning trust agreements currently in sections 2.Q to 2.X of the IP3 Operating License and sections 2.H to 2.O of the FitzPatrick Operating License. In addition, conforming changes to 2.W and 2.X of the IP3 Operating License and 2.P and 2.Q of the FitzPatrick Operating License are necessary [to] reflect the transfer of the Master Trust from PASNY to ENO.
The requested changes are consistent with the types of license amendments permitted in 10 CFR 50.75(h)(5).
The regulations of 10 CFR 50.75(h)(4) state that “Unless otherwise determined by the Commission with regard to a specific application, the Commission has determined that any amendment to the license of a utilization facility that does no more than delete specific license conditions relating to the terms and conditions of decommissioning trust agreements involves `no significant hazards consideration.' ”
In addition the requested changes seek changes to the Master Trust agreement only to the extent that they replace PASNY, a non-licensee, with ENO, a licensee. No other changes to the Master Trust agreement are contemplated.
This request involves changes that are administrative in nature. No actual plant equipment or accident analyses will be affected by the proposed changes.
Therefore, the proposed amendments do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed amendments create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
This request involves administrative changes to licenses that will be consistent with the NRC's regulations at 10 CFR 50.75(h) and to change the name of the entity responsible under the Master Trust for decommissioning from a non-licensee to a licensee.
No actual plant equipment or accident analyses will be affected by the proposed changes and no failure modes not bounded by previously evaluated accidents will be created.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Do the proposed amendments involve a significant reduction in a margin of safety?
Response: No.
The request involves administrative changes to the licenses that will be consistent with the NRC's regulations at 10 CFR 50.75(h) and to change the name of the entity responsible under the Master Trust for decommissioning from a non-licensee to a licensee.
Margin of safety is associated with confidence in the ability of the fission product barriers to limit the level of radiation doses to the public. No actual plant equipment or accident analyses will be affected by the proposed change. Additionally, the proposed changes will not relax any criteria used to establish safety limits, will not relax any safety systems settings, or will not relax the bases for any limiting conditions of operation.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed license amendment replaces an obsolete license condition concerning CRD-22 testing that applied only to operating cycle 21 with a new license condition to forgo the remaining two required surveillance tests of CRD-13 from the PNP TS surveillance requirement for partial movement every 92 days during cycle 25. Since CRD-13 remains trippable, the proposed license condition does not affect or create any accident initiators or precursors. As such, the proposed license condition does not increase the probability of an accident.
The proposed license amendment does not increase the consequences of an accident. The ability to move a full-length control rod by its drive mechanism is not an initial assumption used in the safety analyses. The safety analyses assume full-length control rod insertion, except the most reactive rod, upon reactor trip. The surveillance requirement performed during the last refueling outage verified control rod drop times are within accident analysis assumptions. ENO [Entergy Nuclear Operations] has determined that CRD seal leakage does not increase the likelihood of an untrippable control rod. The assumptions of the safety analyses will be maintained, and the consequences of an accident will not be increased.
Therefore, operation of the facility in accordance with the proposed license condition would not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed license amendment does not involve a physical alteration of any structure, system or component (SSC) or change the way any SSC is operated. The proposed license condition does not involve operation of any required SSCs in a manner or configuration differently from those previously recognized or evaluated. No new failure mechanisms would be introduced by the requested SR interval extension.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed license amendment does not affect trippability of the control rod. It will have the same capability to mitigate an accident as it had prior to the proposed license condition.
Therefore, the proposed amendment would not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to the OCNGS TS for the reactor steam dome pressure in Reactor Core Safety Limits 2.1.A and 2.1.B does not alter the use of the analytical methods used to determine the safety limits that have been previously reviewed and approved by the NRC. Additionally, the proposed change to NMP1 for the reactor steam dome pressure in Reactor Core Safety Limits 2.1.1.a and 2.1.1.b does not alter the use of the analytical methods used to determine the safety limits that have been previously reviewed and approved by the NRC. The proposed change is in accordance with an NRC approved critical power correlation methodology, and as such, maintains required safety margins. The proposed change does not adversely affect accident initiators or precursors, nor does it alter the design assumptions, conditions, or configuration of the facility or the manner in which the plant is operated and maintained.
The proposed change does not alter or prevent the ability of structures, systems, and components (SSCs) from performing their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed change does not require any physical change to any plant SSCs nor does it require any change in systems or plant operations. The proposed change is consistent with the safety analysis assumptions and resultant consequences.
Lowering the value of reactor steam dome pressure in the TS has no physical effect on plant equipment and therefore, no impact on the course of plant transients. The change is an analytical exercise to demonstrate the applicability of correlations and methodologies. There are no known operational or safety benefits.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed reduction in the reactor dome pressure safety limit from 800 psia [pounds per square inch absolute] to 700 psia is a change based upon previously approved documents and does not involve changes to the plant hardware or its operating characteristics. As a result, no new failure modes are being introduced. There are no hardware changes nor are there any changes in the method by which any plant systems perform a safety function. No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of the proposed change.
The proposed change does not introduce any new accident precursors, nor does it involve any physical plant alterations or changes in the methods governing normal plant operation. Also, the change does not impose any new or different requirements or eliminate any existing requirements. The change does not alter assumptions made in the safety analysis.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Do the proposed changes involve a significant reduction in a margin of safety?
Response: No.
The margin of safety is established through the design of the plant structures, systems, and components, and through the parameters for safe operation and setpoints for the actuation of equipment relied upon to respond to transients and design basis accidents. Evaluation of the 10 CFR part 21 condition by GE [General Electric] determined that since the MCPR [minimum critical power ratio] improves during the PRFO [pressure regulator failure-maximum demand (open)] transient, there is no decrease in the safety margin and therefore there is not a threat to fuel cladding integrity. The proposed change in reactor dome pressure supports the current safety margin, which protects the fuel cladding integrity during a depressurization transient, but does not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety. The change does not alter the behavior of plant equipment, which remains unchanged.
The proposed change to Reactor Core Safety Limits 2.1.A and 2.1.B is consistent with and within the capabilities of the applicable NRC approved critical power correlation for the fuel designs in use at OCNGS. Additionally, the proposed change to Reactor Core Safety Limits 2.1.1.a and 2.1.1.b is consistent with and within the capabilities of the NRC approved critical power correlation for the fuel designs in use at NMP1. No setpoints at which protective actions are initiated are altered by the proposed change. The proposed change does not alter the manner in which the safety limits are determined. This change is consistent with plant design and does not change the TS operability requirements; thus, previously evaluated accidents are not affected by this proposed change.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS Chapter 5, “Administrative Controls,” Section 5.5, “Programs and Manuals,” by eliminating the “Inservice Testing Program” specification. Most requirements in the IST Program are removed, as they are duplicative of requirements in the ASME [American Society of Mechanical Engineers] OM [Operation and Maintenance] Code, as clarified by Code Case OMN-20, “Inservice Test Frequency.” The remaining requirements in the Section 5.5.6 IST Program are eliminated because the NRC has determined their inclusion in the TS is contrary to regulations. A new defined term, “Inservice Testing Program,” is added to the TS, which references the requirements of 10 CFR 50.55a(f).
Performance of IST is not an initiator to any accident previously evaluated. As a result, the probability of occurrence of an accident is not significantly affected by the proposed change. Inservice test frequencies under Code Case OMN-20 are equivalent to the current testing period allowed by the TS with the exception that testing frequencies greater than 2 years may be extended by up to 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to mitigate any accident previously evaluated as the components are required to be operable during the testing period extension. Performance of inservice tests utilizing the allowances in OMN-20 will not significantly affect the reliability of the tested components. As a result, the availability of the affected components, as well as their ability to mitigate the consequences of accidents previously evaluated, is not affected.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the design or configuration of the plant. The proposed change does not involve a physical alteration of the plant; no new or different kind of equipment will be installed. The proposed change does not alter the types of inservice testing performed. In most cases, the frequency of IST is unchanged. However, the frequency of testing would not result in a new or different kind of accident from any previously evaluated since the testing methods are not altered.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change eliminates some requirements from the TS in lieu of requirements in the ASME Code, as modified by use of Code Case OMN-20. Compliance with the ASME Code is required by 10 CFR 50.55a. The proposed change also allows inservice tests with frequencies greater than 2 years to be extended by 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to respond to an accident as the components are required to be operable during the testing period extension. The proposed change will eliminate the existing TS SR 3.0.3 allowance to defer performance of missed inservice tests up to the duration of the specified testing frequency, and instead will require an assessment of the missed test on equipment operability. This assessment will consider the effect on a margin of safety (equipment operability). Should the component be inoperable, the TS provide actions to ensure that the margin of safety is protected. The proposed change also eliminates a statement that nothing in the ASME Code should be construed to supersede the requirements of any TS. The NRC has determined that statement to be incorrect. However, elimination of the statement will have no effect on plant operation or safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes to the location and dimensions of the protective plate continues to provide sufficient space surrounding the containment recirculation screens for debris to settle before reaching the screens as confirmed by an evaluation demonstrating that the protective plate continues to fulfill its design function of preventing debris from reaching the screens. In addition, the increase to the minimum IRWST screen size reinforces the ability of the screens to perform their design function with the increased [Residual Heat Removal System (RNS)] maximum flowrate proposed. The proposed changes do not adversely affect any accident initiating component, and thus the probabilities of the accidents previously evaluated are not affected. The affected equipment does not adversely affect the ability of equipment to contain radioactive material. Because the proposed change does not affect a release path or increase the
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed activity to change the location and dimensions of the protective plate above the containment recirculation screens, to change the minimum IRWST screen size, and to increase the maximum RNS flowrate through the IRWST and CR screens does not alter the method in which safety functions are accomplished. The analyses demonstrate that the screens are able to perform their functions in a similar manner and perform adequately in response to an accident, and no new failure modes are introduced by the proposed change.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change to the design does not change any of the codes or standards to which the IRWST screens, containment recirculation screens, and containment recirculation screen protective plate are designed as documented in the UFSAR. The containment recirculation screen protective plate continues to prevent debris from reaching the CR screens, and the IRWST and CR screens maintain their ability to block debris while at the proposed increase in RNS maximum flowrate.
No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The increase in head pressure by the proposed change to the fire protection system (FPS) motor-driven and diesel-driven fire pumps maintains compliance with National Fire Protection Association (NFPA) Standard NFPA-14, S
These changes have no adverse impact on the support, design, or operation of mechanical and fluid systems. The response of systems to postulated accident conditions is not adversely affected by the proposed changes. There is no change to the predicted radioactive releases due to normal operation or postulated accident conditions. Consequently, the plant response to previously evaluated accidents is not impacted, nor does the proposed change create any new accident precursors.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes do not affect the operation of any systems or equipment that may initiate a new or different kind of accident, or alter any SSC such that a new accident initiator or initiating sequence of events is created. The proposed changes to the fire pump performance specifications and fire pump fuel day tank volume do not affect any safety-related equipment, nor do they add any new interface to safety-related SSCs. No system or design function or equipment qualification is affected by this change. The changes do not introduce a new failure mode, malfunction, or sequence of events that could affect safety or safety-related equipment.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes maintain compliance with the applicable Codes and Standards, thereby maintaining the margin of safety associated with these SSCs. The proposed changes do not alter any applicable design codes, code compliance, design function, or safety analysis. Consequently, no safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed change, thus the margin of safety is not reduced.
Because no safety analysis or design basis acceptance limit/criterion is challenged or exceeded by these changes, no margin of safety is reduced.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS Chapter 5, “Administrative Controls,” Section 5.5, “Programs and Manuals,” by eliminating the “lnservice Testing Program” specification. Most requirements in the lnservice Testing Program are removed, as they are duplicative of requirements in the ASME OM [American Society of Mechanical Engineers Operation and Maintenance] Code, as clarified by Code Case OMN-20, “lnservice Test Frequency.” The remaining requirements in the Section 5.5 IST [Inservice Testing] Program are eliminated because the NRC has determined their inclusion in the TS is contrary to regulations. A new defined term, “INSERVICE TESTING PROGRAM,” is added to the TS, which references the requirements of 10 CFR 50.55a(f).
Performance of inservice testing is not an initiator to any accident previously evaluated. As a result, the probability of occurrence of an accident is not significantly affected by the proposed change. lnservice test frequencies under Code Case OMN-20 are equivalent to the current testing period allowed by the TS with the exception that testing frequencies greater than 2 years may be extended by up to 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to mitigate any accident previously evaluated as the components are required to be operable during the testing period extension. Performance of inservice tests utilizing the allowances in OMN-20 will not significantly affect the reliability of the tested components. As a result, the availability of the affected components, as well as their ability to mitigate the consequences of accidents previously evaluated, is not affected.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the design or configuration of the plant. The proposed change does not involve a physical alteration of the plant; no new or different kind of equipment will be installed. The proposed change does not alter the types of inservice testing performed. In most cases, the frequency of inservice testing is unchanged. However, the frequency of testing would not result in a new or different kind of accident from any previously evaluated since the testing methods are not altered.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change eliminates some requirements from the TS in lieu of requirements in the ASME Code, as modified by use of Code Case OMN-20. Compliance with the ASME Code is required by 10 CFR 50.55a. The proposed change also allows inservice tests with frequencies greater than 2 years to be extended by 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to respond to an accident as the components are required to be operable during the testing period extension.
The proposed change will eliminate the existing TS SR 3.0.3 allowance to defer performance of missed inservice tests up to the duration of the specified testing frequency, and instead will require an assessment of the missed test on equipment operability. This assessment will consider the effect on a margin of safety (equipment operability). Should the component be inoperable, the Technical Specifications provide actions to ensure that the margin of safety is protected. The proposed change also eliminates a statement that nothing in the ASME Code should be construed to supersede the requirements of any TS. The NRC has determined that statement to be incorrect. However, elimination of the statement will have no effect on plant operation or safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS Chapter 5, “Administrative Controls,” Section 5.5, “Programs and Manuals,” by eliminating the “lnservice Testing Program” specification. Most requirements in the lnservice Testing Program are removed, as they are duplicative of requirements in the ASME OM Code [American Society of Mechanical Engineers Operation and Maintenance Code], as clarified by Code Case OMN-20, “lnservice Test Frequency.” The remaining requirements in the Section 5.5 IST [Inservice Testing] Program are eliminated because the NRC has determined their inclusion in the TS is contrary to regulations. A new defined term, “INSERVICE TESTING PROGRAM,” is added to the TS, which references the requirements of 10 CFR 50.55a(f).
Performance of inservice testing is not an initiator to any accident previously evaluated. As a result, the probability of occurrence of an accident is not significantly affected by the proposed change. lnservice test frequencies under Code Case OMN-20 are equivalent to the current testing period allowed by the TS with the exception that testing frequencies greater than 2 years may be extended by up to 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to mitigate any accident previously evaluated as the
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the design or configuration of the plant. The proposed change does not involve a physical alteration of the plant; no new or different kind of equipment will be installed. The proposed change does not alter the types of inservice testing performed. In most cases, the frequency of inservice testing is unchanged. However, the frequency of testing would not result in a new or different kind of accident from any previously evaluated since the testing methods are not altered.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change eliminates some requirements from the TS in lieu of requirements in the ASME Code, as modified by use of Code Case OMN-20. Compliance with the ASME Code is required by 10 CFR 50.55a. The proposed change also allows inservice tests with frequencies greater than 2 years to be extended by 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to respond to an accident as the components are required to be operable during the testing period extension.
The proposed change will eliminate the existing TS SR 3.0.3 allowance to defer performance of missed in service tests up to the duration of the specified testing frequency, and instead will require an assessment of the missed test on equipment operability. This assessment will consider the effect on a margin of safety (equipment operability). Should the component be inoperable, the Technical Specifications provide actions to ensure that the margin of safety is protected. The proposed change also eliminates a statement that nothing in the ASME Code should be construed to supersede the requirements of any TS. The NRC has determined that statement to be incorrect. However, elimination of the statement will have no effect on plant operation or safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS Chapter 5, “Administrative Controls,” Section 5.5, “Programs and Manuals,” by eliminating the “lnservice Testing Program” specification. Most requirements in the lnservice Testing Program are removed, as they are duplicative of requirements in the ASME OM [American Society of Mechanical Engineers Operation and Maintenance] Code, as clarified by Code Case OMN-20, “lnservice Test Frequency.” The remaining requirements in the Section 5.5 IST [Inservice Testing] Program are eliminated because the NRC has determined their inclusion in the TS is contrary to regulations. A new defined term, “INSERVICE TESTING PROGRAM,” is added to the TS, which references the requirements of 10 CFR 50.55a(f).
Performance of inservice testing is not an initiator to any accident previously evaluated. As a result, the probability of occurrence of an accident is not significantly affected by the proposed change. lnservice test frequencies under Code Case OMN-20 are equivalent to the current testing period allowed by the TS with the exception that testing frequencies greater than 2 years may be extended by up to 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to mitigate any accident previously evaluated as the components are required to be operable during the testing period extension. Performance of inservice tests utilizing the allowances in OMN-20 will not significantly affect the reliability of the tested components. As a result, the availability of the affected components, as well as their ability to mitigate the consequences of accidents previously evaluated, is not affected.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the design or configuration of the plant. The proposed change does not involve a physical alteration of the plant; no new or different kind of equipment will be installed. The proposed change does not alter the types of inservice testing performed. In most cases, the frequency of inservice testing is unchanged. However, the frequency of testing would not result in a new or different kind of accident from any previously evaluated since the testing methods are not altered.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change eliminates some requirements from the TS in lieu of requirements in the ASME Code, as modified by use of Code Case OMN-20. Compliance with the ASME Code is required by 10 CFR 50.55a. The proposed change also allows inservice tests with frequencies greater than 2 years to be extended by 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to respond to an accident as the components are required to be operable during the testing period extension.
The proposed change will eliminate the existing TS SR 3.0.3 allowance to defer performance of missed in service tests up to the duration of the specified testing frequency, and instead will require an
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 8, 2016.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 30, 2016.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 31, 2016.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 30, 2016.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 12, 2016.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 30, 2016.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 8, 2016.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 6, 2016.
For the Nuclear Regulatory Commission.
Notice of public meeting.
The National Nanotechnology Coordination Office (NNCO), on behalf of the Nanoscale Science, Engineering, and Technology (NSET) Subcommittee of the Committee on Technology, National Science and Technology Council (NSTC) and in collaboration with the European Commission, will host meetings for the U.S.-EU Communities of Research (CORs) on the topic of environmental, health, and safety issues related to nanomaterials (nanoEHS) between the publication date of this Notice and September 30, 2017. The CORs are a platform for scientists to develop a shared repertoire of protocols and methods to overcome research gaps and barriers. The co-chairs for each COR will convene meetings and set meeting agendas with administrative support from the European Commission and the NNCO.
The CORs will hold multiple webinars and/or conference calls between the publication date of this Notice and September 30, 2017.
Teleconferences and web meetings for the CORs will take place periodically between the publication date of this Notice and September 30, 2017. Meeting dates, call-in information, and other COR updates will be posted on the Community of Research page at
For information regarding this Notice, please contact Stacey Standridge at National Nanotechnology Coordination Office, by telephone (703) 292-8103 or email
There are seven Communities of Research addressing complementary themes:
The CORs directly address Objectives 4.1.4 (“Participate in international efforts, particularly those aimed at generating [nanoEHS] best practices”) and 4.2.3 (“Participate in coordinated international efforts focused on sharing data, guidance, and best practices for environmental and human risk assessment and management”) of the 2014 National Nanotechnology Initiative Strategic Plan
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (the “Fee Schedule”) to adopt a new pricing tier and a new execution fee. The Exchange proposes to implement the fee changes effective September 8, 2016.
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 Fee Schedule to adopt a new pricing tier and a new execution fee. The Exchange proposes to implement the fee changes effective September 8, 2016.
The Exchange proposes a new pricing tier—Step Up Tier—for securities with a per share price of $1.00 or above.
As proposed, a new Step Up Tier credit of $0.0029 per share for providing liquidity in Tape A and Tape C Securities and $0.0028 per share for providing liquidity in Tape B Securities would apply to ETP Holders and Market Makers that, on a daily basis, measured monthly
(i) directly execute providing average daily volume (“ADV”) on NYSE Arca in an amount that is an increase of no less than 0.15% of United States consolidated average daily volume (“US CADV”)
(ii) set a new Best Bid or Offer (“BBO”) on the Exchange with at least 40% of the ETP Holder's or Market Maker's providing ADV.
For example, an ETP Holder who has a providing ADV of 15 million shares in the Baseline Month would be required to execute, at a minimum, an additional 9.75 million shares of providing ADV if CADV is 6.5 billion shares in the billing month, or 0.15% over the Baseline Month, for a total providing ADV of 24.75 million shares for the billing month. Further, of the 24.75 million shares, at least 9.9 million shares, or 40% of providing ADV of 24.75 million shares, would need to set a new BBO on the Exchange.
As an incentive for ETP Holders and Market Makers to direct their order flow to the Exchange, for the months of September 2016 and October 2016 only, the Exchange proposes adopting lower providing ADV criteria for ETP Holders and Market Makers to qualify for the proposed credit. For the billing month of September 2016 only, the proposed Step Up credit would apply to ETP Holders and Market Makers that, on a daily basis, measured monthly
(i) directly execute providing ADV on NYSE Arca in an amount that is an increase of no less than 0.045% of US CADV in Tape A, Tape B and Tape C Securities for that month over the ETP Holder's or Market Maker's providing ADV in the Baseline Month, and
(ii) set a new BBO on the Exchange with at least 40% of the ETP Holder's or Market Maker's providing ADV.
For example, using the previous example, an ETP Holder who has a providing ADV of 15 million shares in the Baseline Month would be required to execute, at a minimum, an additional 2.925 million shares of providing ADV if CADV is 6.5 billion shares in the billing month, or 0.045% over the Baseline Month, for a total providing ADV of 17.925 million shares for the billing month. Further, of the 17.925 million shares, at least 7.170 million shares, or 40% of providing ADV of 17.925 million shares, would need to set a new BBO on the Exchange.
For the billing month of October 2016 only, the proposed Step Up credit would be applicable to ETP Holders and Market Makers that, on a daily basis, measured monthly
(i) directly execute providing ADV on NYSE Arca in an amount that is an increase of no less than 0.09% of US CADV in Tape A, Tape B and Tape C Securities for that month over the ETP Holder's or Market Maker's providing ADV in the Baseline Month, and
(ii) set a new BBO on the Exchange with at least 40% of the ETP Holder's and Market Maker's providing ADV.
Using the previous example again, an ETP Holder who has a providing ADV of 15 million shares in the Baseline Month would be required to execute, at a minimum, an additional 5.85 million shares of providing ADV if CADV is 6.5 billion shares in the billing month, or 0.09% over the Baseline Month, for a total providing ADV of 20.850 million shares for the billing month. Further, of the 20.850 million shares, at least 8.340 million shares, or 40% of providing ADV of 20.850 million shares, would need to set a new BBO on the Exchange.
The Exchange notes that if an ETP Holder or Market Maker qualifies for more than one tier in the Fee Schedule, the Exchange would apply the most favorable rate available under such tiers.
The goal of the Step-Up Tier is to incentivize ETP Holders and Market Makers to increase the orders sent
The Exchange proposes a new execution fee for participation in an Early Open Auction, Core Open Auction, Trading Halt Auction and Closing Auction. The proposed fee would apply to securities with a per share price of $1.00 or above.
The Exchange's Fee Schedule currently includes fees applicable to executions that result from Market Orders, Auction-Only Orders, Market-On-Close Orders and Limit-On-Close Orders (“Auction Orders”). All other executions (“Non-Auction Orders”) executed in an Early Open Auction, Core Open Auction, Trading Halt Auction and Closing Auction are not currently charged a fee by the Exchange. The Exchange proposes to add a fee of $0.0006 per share that would apply to Non-Auction Orders executed in an Early Open Auction, Core Open Auction, Trading Halt Auction and Closing Auction.
The Exchange notes the proposed fee is similar to the fee charged by the NASDAQ Stock Market LLC (“NASDAQ”) for Continuous Book
The proposed changes are not otherwise intended to address any other problem, and the Exchange is not aware of any significant problem that the affected market participants would have in complying with the proposed changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed Step-Up Tier is equitable because it is open to all ETP Holders and Market Makers on an equal basis and provides credits that are reasonably related to the value to an exchange's market quality associated with higher volumes. As stated above, the Exchange believes that the Step-Up Tier may incentivize market participants to increase the orders sent directly to NYSE Arca and therefore provide liquidity that supports the quality of price discovery and promotes market transparency. Moreover, the addition of the Step-Up Tier would benefit market participants whose increased order flow provides meaningful added levels of liquidity thereby contributing to the depth and market quality on the Exchange. In addition, by offering a Step-Up Tier the Exchange believes more market participants may provide increased order flow and more market participants would be eligible to receive the proposed credits for their orders.
Further, the Exchange believes that the proposal is reasonable and would create an added incentive for ETP Holders and Market Makers to execute additional orders on the Exchange. The Exchange believes it is reasonable to require that at least 40% of the ETP Holders and Market Makers providing ADV set a new BBO on the Exchange as it would create an incentive for ETP Holders and Market Makers to improve displayed quotes on the Exchange, which would benefit all market participants. The Exchange believes that the proposed change is equitable and not unfairly discriminatory because providing incentives for orders that are executed on a registered national securities exchange would contribute to investors' confidence in the fairness of their transactions and would benefit all investors by deepening the Exchange's liquidity pool, supporting the quality of price discovery, promoting market transparency and improving investor protection.
The Exchange believes that adopting lower providing ADV criteria for September 2016 and October 2016 is reasonable because it may allow a greater number of ETP Holders and Market Makers to qualify for the proposed credits while also providing ETP Holders and Market Makers the opportunity to gradually increase their activity in order to qualify for the proposed credits. The Exchange believes that adopting lower providing ADV criteria for September 2016 and October 2016 is also equitable and not unfairly discriminatory because the lower criteria would apply uniformly to all ETP Holders and Market Makers during September 2016 and October 2016.
Volume-based rebates such as the ones currently in place on the Exchange, and as proposed herein, have been widely adopted in the cash equities markets and are equitable because they are open to all ETP Holders and Market Makers on an equal basis and provide additional benefits or discounts that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns, and introduction of higher volumes of orders into the price and volume discovery processes.
The Exchange believes that the proposed execution fee for Non-Auction Orders participating in an Early Open Auction, Core Open Auction, Trading Halt Auction and Closing Auction is consistent with an equitable allocation of a reasonable fee and not unfairly discriminatory. As noted above, Non-Auction Orders executed in an Early Open Auction, Core Open Auction, Trading Halt Auction and Closing Auction are not currently charged a fee by the Exchange. The Exchange believes the proposed fee is reasonable because Non-Auction Orders receive a substantial benefit from executions within the various auctions on the Exchange. For example, the Exchange's closing auction is a recognized industry benchmark.
The Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, 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 and rebates 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 and credits 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. As a result of all of these considerations, the Exchange does not believe that the proposed changes will impair the ability of ETP Holders or competing order execution venues to maintain their competitive standing in the financial markets.
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 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 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Payment, Clearing and Settlement Supervision Act”)
This advance notice is being filed in connection with a proposed change in the form of the replacement of a revolving credit facility that OCC maintains for a 364-day term for the purpose of meeting obligations arising out of the default or suspension of a clearing member, in anticipation of a potential default by a clearing member, or the failure of a bank or securities or commodities clearing organization to perform its obligations due to its bankruptcy, insolvency, receivership or suspension of operations.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections A and B below, of the most significant aspects of these statements.
Written comments were not and are not intended to be solicited with respect to the advance notice and none have been received.
This advance notice is being filed in connection with a proposed change in the form of the replacement of a revolving credit facility that OCC maintains for a 364-day term for the purpose of meeting obligations arising out of the default or suspension of a clearing member, in anticipation of a potential default by a clearing member, or the failure of a bank or securities or commodities clearing organization to perform its obligations due to its bankruptcy, insolvency, receivership or suspension of operations. OCC's existing credit facility (“Existing Facility”) was implemented on October 5, 2015 through the execution of a Credit Agreement among OCC, Bank of America, N.A. (“BofA”), as administrative agent, and the lenders that are parties to the agreement from time to time. The Existing Facility provides short-term secured borrowings in an aggregate principal amount of $2 billion but may be increased to $3 billion if OCC so requests and sufficient commitments from lenders are received and accepted. To obtain a loan under the Existing Facility, OCC must pledge as collateral U.S. dollars or certain securities issued or guaranteed by the U.S. Government or the Government of Canada. Certain mandatory prepayments or deposits of additional collateral are required depending on changes in the collateral's market value. In connection with OCC's past implementation of the Existing Facility, OCC filed an advance notice with the Commission on September 9, 2015 [sic], and the Commission published a Notice of No-Objection on October 1, 2015.
The Existing Facility is set to expire on October 3, 2016, and OCC is therefore currently negotiating the terms of a new credit facility (“New Facility”) on substantially similar terms as the Existing Facility.
The terms and conditions applicable to the New Facility are set forth in the Summary of Terms and Conditions, which is not a public document.
The New Facility involves a variety of customary fees payable by OCC, including: (1) An arrangement fee payable to the joint lead arrangers; (2) administrative and collateral agent fees payable to the administrative agent and collateral agent if the New Facility closes; (3) upfront commitment fees payable to the lenders based on the
Completing timely settlement is a key aspect of OCC's role as a clearing agency performing central counterparty services. Overall, the New Facility would continue to promote the reduction of risks to OCC, its clearing members and the options market in general because it would allow OCC to obtain short-term funds to address liquidity demands arising out of the default or suspension of a clearing member, in anticipation of a potential default or suspension of clearing members or the insolvency of a bank or another securities or commodities clearing organization. The existence of the New Facility would therefore help OCC minimize losses in the event of such a default, suspension or insolvency, by allowing it to obtain funds on extremely short notice to ensure clearance and settlement of transactions in options and other contracts without interruption. OCC believes that the reduced settlement risk presented by OCC resulting from the New Facility would correspondingly reduce systemic risk and promote the safety and soundness of the clearing system. By drawing on the New Facility, OCC would also be able to avoid liquidating margin or clearing fund assets in what would likely be volatile market conditions, which would preserve funds available to cover any losses resulting from the failure of a clearing member, bank or other clearing organization. Because the New Facility generally preserves the same terms and conditions as the Existing Facility, OCC believes that the change would not otherwise affect or alter the management of risk at OCC. Moreover, and [sic] while the credit agreement for the New Facility would contain the “bail-in” acknowledgment discussed above, OCC has existing processes in place to monitor the financial health of lenders under the Existing and New Facilities, including European-based lenders under the New Facility. In the event that a lender were experiencing [sic] financial difficulties that triggered a bail-in risk, OCC could exercise its right to seek a replacement lender.
OCC believes that the New Facility is consistent with Section 805(b)(1) of the Payment Clearing and Settlement Supervision Act
Pursuant to Section 806(e)(1)(I) of the Payment, Clearing and Settlement Supervision Act,
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. OCC shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the OCC with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies OCC in writing that it does not object to the proposed change and authorizes OCC to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
OCC shall post notice on its Web site of proposed changes that are implemented.
Interested persons are invited to submit written data, views and arguments concerning the foregoing. 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.
Although the Payment, Clearing and Settlement Supervision Act does not specify a standard of review for an advance notice, its stated purpose is
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Payment, Clearing and Settlement Supervision Act
The Commission believes that the proposal in the advance notice is consistent with the Clearing Agency Standards, in particular, Rule 17Ad-22(d)(11) under the Act and Rule 17Ad-22(b)(3) under the Act.
Rule 17Ad-22(b)(3) under the Act
For these reasons, the Commission believes the proposal contained in the advance notice is consistent with the objectives and principles described in Section 805(b) of the Payment, Clearing and Settlement Supervision Act,
For these reasons, stated above, the Commission does not object to the advance notice.
By the Commission.
Department of State.
Notice.
The Department of State (“State Department”) hereby gives notice that, on September 7, 2016, it received an application from the Texas Department of Transportation (TXDOT) for an Amended Presidential Permit to construct a second bridge structure for southbound traffic on the U.S.-Mexico border at Presidio, Texas and Ojinaga, Chihuahua, Mexico. The State Department issued the original Presidential Permit to Presidio County on July 2, 1976, and an Amended Presidential Permit to TXDOT on May 4, 1982. The application may be found at:
The State Department's review of this application is based upon Executive Order 11423 of August 16, 1968, as amended. As provided in E.O. 11423,
Interested members of the public are invited to submit written comments regarding this application. The public comment period will end 30 days from the publication of this notice. Comments are not private. They will be posted on the site
Comments must be submitted no later than October 27, 2016 at 11:59 p.m.
For reasons of efficiency, the State Department encourages the electronic submission of comments through the federal government's eRulemaking Portal (
Office of Mexican Affairs, Bureau of Western Hemisphere Affairs, via email at
By virtue of the authority vested in the Secretary of State, including Section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. 2651a); the transfer provisions of the Foreign Affairs Reform and Restructuring Act of 1998, codified in 22 U.S.C. 6532; and pursuant to Executive Order 12048, as amended, I hereby delegate to the Assistant Secretary of State for South and Central Asian Affairs, to the extent authorized by law, the authority of the President under Section 102(a)(3) of the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-286, to provide for U.S. participation in “Astana Expo 2017.”
Any act, executive order, regulation, or procedure subject to, or affected by, this delegation shall be deemed to be such act, executive order, regulation, or procedure as amended from time to time.
Notwithstanding this delegation of authority, the Secretary, the Deputy Secretary, the Deputy Secretary for Management and Resources, the Under Secretary for Political Affairs, and the Under Secretary for Public Diplomacy and Public Affairs may at any time exercise any authority or function delegated by this delegation of authority.
This delegation of authority does not rescind, supersede, or in any way affect the validity of any other delegation of authority. This includes Delegation of Authority 234, dated October 1, 1999, which remains in effect.
This delegation of authority shall be published in the
By virtue of the authority vested in the Secretary of State, including Section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. § 2651a); the transfer provisions of the Foreign Affairs Reform and Restructuring Act of 1998, codified in 22 U.S.C. § 6532; and pursuant to Executive Order 12048, as amended, I hereby delegate to the Assistant Secretary of State for South and Central Asian Affairs, to the extent authorized by law, the authority of the President under Section 102(a)(3) of the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-286, to provide for U.S. participation in “Astana Expo 2017.”
Any act, executive order, regulation, or procedure subject to, or affected by, this delegation shall be deemed to be such act, executive order, regulation, or procedure as amended from time to time.
Notwithstanding this delegation of authority, the Secretary, the Deputy Secretary, the Deputy Secretary for Management and Resources, the Under Secretary for Political Affairs, and the Under Secretary for Public Diplomacy and Public Affairs may at any time exercise any authority or function delegated by this delegation of authority.
This delegation of authority does not rescind, supersede, or in any way affect the validity of any other delegation of authority. This includes Delegation of Authority 234, dated October 1, 1999, which remains in effect.
This delegation of authority shall be published in the
Dated: August 29, 2016.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Department of State.
Notice.
Notice is hereby given that the Department of State (DOS) has received an application from Borrego Crossing Pipeline, LLC (“Borrego”) for a Presidential Permit authorizing the construction, connection, operation, and maintenance of pipeline facilities for the export of refined petroleum products. If the application is approved, the proposed pipeline facilities will transport refined products, including gasoline, ultra-low-sulfur diesel (“ULSD”), and jet fuel across the U.S.-Mexican border under the Rio Grande River. Minimum pipeline depth under the river bed will be 45 feet, and minimum pipeline depth under the river surface at the river banks will be 65 feet. The ultimate parent corporation of Borrego is Howard Midstream Energy Partners, LLC (“HEP”). Under E.O. 13337, the Secretary of State is designated and empowered to receive all applications for Presidential Permits for the construction, connection, operation, or maintenance, at the borders of the United States, of facilities for the exportation or importation of liquid petroleum, petroleum products, or other nongaseous fuels to or from a foreign country. The Department of State has the responsibility to determine whether issuance of a new Presidential Permit for construction, connection, operation, and maintenance of the proposed Borrego pipeline border facilities would serve the U.S. national interest. The Department will conduct an environmental review consistent with the National Environmental Policy Act of 1969. The Department will provide more information on the review process in a future
Presidential Permit Coordinator, Energy Resources Bureau, (ENR/EGA/PAPD) United States Department of State, 2201 C St. NW., Suite 4422, Washington, DC 20520.
CSX Transportation, Inc. (CSXT) has filed a verified notice of exemption under 49 CFR pt. 1152 subpart F—
CSXT has certified that: (1) No local freight traffic has moved over the Line for at least two years; (2) because the Line is not a through route, no overhead traffic has operated; and, therefore, none needs to be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is either pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial
A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void ab initio.
CSXT has filed environmental and historic reports that address the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by September 30, 2016. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by CSXT's filing of a notice of consummation by September 27, 2017, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Susquehanna River Basin Commission.
Notice.
This notice lists the projects approved by rule by the Susquehanna River Basin Commission during the period set forth in
August 1-31, 2016.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(f) for the time period specified above:
Pub. L. 91-575, 84 Stat. 1509
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice; request for comments.
The FHWA is interested in gathering public comments on how certain provisions of the current law surrounding commercial activities in rest areas should be interpreted and applied in consideration of advancements in technology and the interests of the States.
Comments must be received on or before December 27, 2016.
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
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For questions about this notice contact Virgil Pridemore, Office of Real Estate Services, telephone at 202-366-2058, or via email at
You may retrieve a copy of the notice through the Federal eRulemaking portal at
The FHWA provides financial aid (Federal-aid) to States for the construction, maintenance and operation of highway transportation facilities that are primarily on the National Highway System (NHS). The NHS consists of highways important to the Nation's economy, defense, and mobility, including the Interstate System.
States that receive Federal-aid for their NHS highway facilities or who wish to maintain eligibility to receive it must adhere to applicable Federal statutes and regulations. Section 111, of Title 23, United States Code, and 23 CFR 752.5 prohibit over the counter sales of merchandise in rest areas located on the Interstate. Allowable commercial activity in rest areas on the Interstate System includes:
• Installation of commercial advertising and media displays, if such advertising and displays are exhibited solely within any facility constructed in the rest area and are not legible from the main traveled way;
• sale of items designed to promote tourism in the State, limited to books, DVDs, and other media;
• sale of tickets for events or attractions in the State of a historical or tourism-related nature;
• distribution of travel-related information, including maps, travel booklets, and hotel coupon booklets;
• installation and operation of lottery machines; and
• installation and operation of vending machines which may only dispense such food, drink, and other articles as the State transportation department determines are appropriate and desirable and which are operated in accordance with the Randolph-Sheppard Act of 1936 found at 20 U.S.C. 107.
Recently, several State departments of transportation have raised questions about what constitutes a vending machine and consequently what can or should be allowed in Interstate rest areas. There is currently no definition of vending machine either in the statute at 23 U.S.C. 111 or the regulation at 23 CFR 752.5. The current regulation and law have remained substantially the same and have not defined the term “vending machine” for more than 30 years. At the time of publication of both the statute and final rule, vending machines were generally similar in that they accepted coins or paper currency, were operated by either a push button or a pull lever, and dispensed similar limited products. In the last several years, however, technology has evolved well beyond the types of machines that were available when the law was enacted and the final regulation was published. Vending machines can now accept electronic means of payment and can vend a continually evolving and broad range of products. Additionally, there is now technology that is similar to vending machines, but not in existence at the time the statute was enacted. For example, self-serve kiosks at which the customer scans the goods for sale and then pays by cash or electronic method and which requires no assistance from either the kiosk owner or employee have become readily available.
The FHWA is interested in gathering public comments on how certain provisions of the current law should be interpreted and applied in consideration of advancements in technology and the interests of the States. Specifically, FHWA is interested in comments concerning the definition of vending machines. The FHWA is also interested in public input concerning the provision of law that allows the sale of items designed to promote tourism in the State, currently limited to books, DVDs, and other media.
Specific questions to guide the input are as follows:
• Considering advances in technology, what defines a vending machine in today's world?
• What types of “media” should be considered as promoting tourism in the State?
• Should local agricultural products be considered media that promotes tourism?
• Are there other commercial activities that should be allowed consistent with Federal law?
• Is there a need for additional Federal guidance on commercial activities in Interstate rest areas, and if so, what should the guidance address?
23 U.S.C. 111, 315, and 502(b); 23 CFR 752.5.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides public notice of the Nashville and Eastern Railroad Corporation's (NERR) submission to FRA of its Positive Train Control Development Plan (PTCDP) Revision 2.5, dated June 22, 2016, and the availability of NERR's PTCDP for public comment. NERR requests that FRA approve its PTCDP, which describes NERR's Argenia Railway Technologies' Positive Train Control System (SafeNet System) as required under FRA regulations.
FRA must receive comments by October 27, 2016. FRA may consider comments received after that date if practicable.
All communications concerning this proceeding should identify Docket Number FRA-2015-0063 and may be submitted by any of the following methods:
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Dr. Mark Hartong, Senior Scientific Technical Advisor, at (202) 493-1332 or
In its PTCDP, NERR states the SafeNet System it is implementing is designed as a non-vital overlay PTC system under 49 CFR 236.1015(e)(1). The PTCDP describes NERR's SafeNet System implementation per 49 CFR 236.1013. During its review of the PTCDP, FRA will consider whether the SafeNet System satisfies the requirements for PTC systems under 49 CFR part 236, subpart I and whether the PTCDP makes a reasonable showing a system built to the stated requirements would achieve the level of safety mandated for such a system under 49 CFR 236.1015,
NERR's PTCDP is available for review online at
Interested parties may comment on the PTCDP by submitting written comments or data. During its review of the PTCDP, FRA will consider any relevant comments or data submitted. However, FRA may elect not to respond to any particular comment and, under 49 CFR 236.1013(b), FRA maintains authority to approve or disapprove the PTCDP at its sole discretion. FRA does not anticipate scheduling a public hearing regarding NERR's PTCDP because the circumstances do not appear to warrant a hearing. If an interested party desires an opportunity for oral comment, the party must notify FRA in writing before the end of the
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of 12 individuals and 25 entities whose property and interests in property are blocked, as well as 1 property that is blocked, pursuant to Executive Order 13581 of July 24, 2011, “Blocking Property of Transnational Criminal Organizations.”
The designations by the Director of OFAC, pursuant to Executive Order 13581, of the 12 individuals, 25 entities, and 1 blocked property identified in this notice were effective on September 22, 2016.
The Department of the Treasury's Office of Foreign Assets Control: Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director for Regulatory Affairs, tel.: 202-622-4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Department of the Treasury's Office of the Chief Counsel (Foreign Assets Control), Office of the General Counsel, tel.: 202-622-2410.
This document and additional information concerning OFAC are available from OFAC's Web site (
On July 24, 2011, the President issued Executive Order 13581, “Blocking Property of Transnational Criminal Organizations” (the “Order”), pursuant to,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, of persons listed in the Annex to the Order and of persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to satisfy certain criteria set forth in the Order.
On September 22, 2016, the Director of OFAC, in consultation with the Attorney General and the Secretary of State, designated, pursuant to one or more of the criteria set forth in subparagraphs (a)(ii)(A) through (a)(ii)(C) of Section 1 of the Order, 12 individuals, 25 entities, and 1 blocked property whose property and interests in property are blocked pursuant to the Order.
The listings for these individuals, entities, and blocked property on OFAC's List of Specially Designated Nationals and Blocked Persons appear as follows:
1. BOIVIN, Marie (a.k.a. BOIVIN, Marie Claude), 13 Beechgrove Gardens, Stittsville, Ottawa, Ontario K25 1W5, Canada; 2571 Carling Avenue, Ottawa, Ontario K2B 7H7, Canada; DOB 03 Jul 1975 (individual) [TCO] (Linked To: ACCU-RATE CORPORATION; Linked To: PACNET GROUP).
2. BOTTCHER, Monica Elizabete (a.k.a. BOTTCHER, Monica Elizabeth), 45 Knock Rushen, Castletown, Isle of Man IM9 1TQ, United Kingdom; DOB 26 Feb 1973 (individual) [TCO] (Linked To: PACNET BRAZIL; Linked To: PACNET GROUP).
3. DAVIS, Robert Paul (a.k.a. DAVIS, Paul; a.k.a. DAVIS, Paul Nadin; a.k.a. DAVIS, R. Paul Nadin; a.k.a. DAVIS, Robert; a.k.a. NADIN-DAVIS, Robert Paul), 45 Knock Rushen Scarlett, Castletown, Isle of Man IM9 1TQ, United Kingdom; 69 Buchanan Street, Glasgow, Scotland G1 3HL, United Kingdom; D11, Glyme Court, Oxford Office Village, Langford Lane, Kidlington, Oxon, England OX5 1LQ, United Kingdom; Avondale House, Queens Promenade, Douglas, Isle of Man IM2 4ND, United Kingdom; Parkshot House, 5 Kew Road, Richmond, Surrey TW9 2PR, United Kingdom; 1 Ros Na Greine, Balleycasey, Shannon, Ireland; 1 Ros Na Greinne, Balleycasey, Shannon, Co. Clare, Ireland; 70 Empress Court, Oxford, United Kingdom; 2571 Carling Avenue, Ottawa, Ontario K2B 7H7, Canada; DOB 19 Jan 1956; POB Fulwood, United Kingdom; Passport 460085575 (United Kingdom); alt. Passport VF275682 (Canada); alt. Passport BD103703 (Canada) (individual) [TCO] (Linked To: PACNET AIR; Linked To: PACNET EUROPE; Linked To: PACNET ZAR; Linked To: PACNET INDIA; Linked To: ACCU-RATE CORPORATION; Linked To: CHEXX ITALIA SRL; Linked To: CHEXX INC.; Linked To: COUNTING HOUSE SERVICES LTD.; Linked To: THE PAYMENTS FACTORY LTD.; Linked To: PACNET SERVICES LTD.; Linked To: PACNET SERVICES (IRELAND) LIMITED; Linked To: AEROPAY LIMITED; Linked To: MANX RARE BREEDS LTD.; Linked To: PACNET GROUP).
4. DAY, Rosanne Phyllis (a.k.a. DAY, Rosanne; a.k.a. DRONSFIELD, Rosanne Phyllis), 3928 West 22nd Avenue, Vancouver, British Columbia V65 1K1, Canada; 69 Buchanan Street, Glasgow, Scotland G1 3HL, United Kingdom; Parkshot House, 5 Kew Road, Richmond, Surrey TW9 2PR, United Kingdom; DOB 12 Mar 1968; nationality United Kingdom (individual) [TCO] (Linked To: DEEPCOVE LABS; Linked To: PACNET SERVICES LTD.; Linked To: PACNET ZAR; Linked To: CHEXX INC.; Linked To: PACNET EUROPE; Linked To: PACNET GROUP).
5. DRISCOLL, Mary Ann, Vancouver, British Columbia, Canada; DOB 01 Jun 1950 to 30 Jun 1950; nationality Canada (individual) [TCO] (Linked To: CHEXX
6. FERLOW, Ruth (a.k.a. FERLOW, Ruth Hilda Rose), D11 Glyme Court, Oxford Office Village, Langford Lane, Kidlington, Oxon OX5 1LQ, United Kingdom; 4910 Keith Road, Vancouver, BC V7W 2NI, Canada; 4th Floor, 595 Howe Street, Vancouver, BC V6C 2TF, Canada; DOB 05 Jan 1967; nationality Canada (individual) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: CHEXX INC.; Linked To: INDIAN RIVER (UK) LTD.; Linked To: PACNET GROUP).
7. FERRARI, Raffaella, Parkshot House, 5 Kew Road, Richmond, Surrey TW9 2PR, United Kingdom; Kingston upon Thames, United Kingdom; 69 Buchanan Street, Glasgow, Scotland G1 3HL, United Kingdom; DOB 01 Nov 1972 to 30 Nov 1972; nationality Italy (individual) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: CHEXX ITALIA SRL; Linked To: THE PAYMENTS FACTORY LTD.; Linked To: COUNTING HOUSE SERVICES LTD.; Linked To: PACNET GROUP).
8. HANRAHAN, Siobhan Ann, Shannon Airport House, Shannon Free Zone, Shannon, County Clare, Ireland; Meadow View, Clonlohan, Newmarket-on-Fergus, County Clare, Ireland; DOB May 1972 (individual) [TCO] (Linked To: PACNET HOLDINGS LIMITED; Linked To: PACNET SERVICES LTD.; Linked To: PACNET CONNECTIONS LIMITED; Linked To: PACNET SERVICES (IRELAND) LIMITED; Linked To: AEROPAY LIMITED; Linked To: PACNET EUROPE; Linked To: PACNET GROUP).
9. HUMPHREYS, Gerard Alphonsus (a.k.a. HUMPHREYS, Gerry), Brittas House, Brittas, County Limerick, Ireland; D11 Glyme Court, Oxford Office Village, Langford Lane, Oxford Oxon OX5 1LQ, United Kingdom; DOB 17 Jul 1958; nationality Ireland; Passport B781829 (Ireland) (individual) [TCO] (Linked To: PACNET AIR; Linked To: PACNET HOLDINGS LIMITED; Linked To: CHEXX INC.; Linked To: PACNET SERVICES (IRELAND) LIMITED; Linked To: AEROPAY LIMITED; Linked To: PACNET EUROPE; Linked To: PACNET GROUP).
10. MACBAIN, Donna Maria, Parkshot House, 5 Kew Road, Richmond, Surrey TW9 2PR, United Kingdom; DOB 01 Feb 1979 to 28 Feb 1979; nationality United Kingdom (individual) [TCO] (Linked To: COUNTING HOUSE SERVICES LTD.; Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
11. SNYMAN, Estelle, Shannon Airport House, Shannon, County Clare, Ireland; DOB 01 Nov 1964 to 30 Nov 1964 (individual) [TCO] (Linked To: PACNET HOLDINGS LIMITED; Linked To: PACNET GROUP).
12. WEEKES, Brian, Attyterilla, Ballygriffey Road, Ruan, County Clare, Ireland; DOB 18 Feb 1963 (individual) [TCO] (Linked To: PACNET EUROPE; Linked To: PACNET GROUP).
1. PACNET GROUP, Canada; Chile; United Kingdom; United States; Ireland; Brazil; France; Hong Kong; India; Malta; Switzerland; South Africa [TCO].
2. ACCU-RATE CORPORATION, 2573 Carling Ave., Ottawa, ON K2B 7H7, Canada; Web site
3. AEROPAY LIMITED (a.k.a. POINTS EAST LIMITED), D11 Glyme Court, Oxford Office Village, Langford Lane, Oxford Oxon OX5 1LQ, United Kingdom; 70 Empress Court, Woodin's Way, Oxford, Oxfordshire OX1 1HG, United Kingdom; Company Number 05648577 (United Kingdom) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET HOLDINGS LIMITED; Linked To: PACNET GROUP).
4. CHEXX INC. (a.k.a. CHEXX AMERICAS; a.k.a. CHEXX INC. LIMITED), 4th Floor, 595 Howe St., Vancouver, BC V6C 2T5, Canada; Shannon Airport House, Shannon, Co. Clare V14E370, Ireland; Bishopbrook House, Cathedral Avenue, Wells, Somerset BA5 1FD, United Kingdom; nationality Canada; alt. nationality United Kingdom; alt. nationality Ireland; Web site
5. CHEXX ITALIA SRL, Largo San Giuseppe 3/32, Genova 16121, Italy; V.A.T. Number IT02326870991; Commercial Registry Number GE 477550 (Italy); Fiscal Code 02326870991 (Italy) [TCO] (Linked To: DAVIS, Robert Paul; Linked To: FERRARI, Raffaella; Linked To: PACNET GROUP).
6. COUNTING HOUSE SERVICES LTD. (a.k.a. UK COUNTING HOUSE LTD.), 595 Howe Street, 4th Floor, Vancouver, BC V6C 2T5, Canada; 410-900 Howe Street, Vancouver, British Columbia V672M4, Canada; 4410-900 Howe Street, Vancouver, BC V6Z 2M4, Canada; 5 Kew Road, Richmond, Surrey TW9 2PR, United Kingdom; 43 Princeton Highstown Rd., Suite D, Princeton Junction, NJ 08550, United States; Tel Aviv, Israel; Web site
7. DEEPCOVE LABS (a.k.a. DEEPCOVE LABORATORIES LTD.), 4th Floor, 595 Howe Street, Vancouver, BC V6C 2T5, Canada; Web site
8. INDIAN RIVER (UK) LTD., D11 Glyme Court, Oxford Office Village, Langford Lane, Kidlington, Oxon OX5 1LQ, United Kingdom; Company Number 07927999 (United Kingdom) [TCO] (Linked To: PACNET CONNECTIONS LIMITED; Linked To: PACNET GROUP).
9. MANX RARE BREEDS LTD. (a.k.a. BALLALOAGHTAN FARM), The Barn Ballaloaghtan Kerrowkeil Hamlet, Grenaby IM9 3BB, United Kingdom; Web site
10. PACNET AIR (a.k.a. PACIFIC NETWORK AIR LTD.), Suite 3, 3rd Floor, Britannia House, St. Georges Street, Douglas, Isle of Man IM1 1JD, United Kingdom; Web site
11. PACNET BRAZIL (a.k.a. MMC CLUB; a.k.a. PACNET SERVICES DO BRASIL LTDA.; a.k.a. PACNET SERVICES DO BRASIL S S LTDA ME), Rue Adelino Fernandes 679, 1340 sala 6, Bairro Jardim Planalto, CEP 13160.000 Artur Nogueira, SP, Brazil; Rua Doutor Fernando Arens 679, Artur Nogueira, Sao Paulo 13160-000, Brazil; Identification Number 05032174000150 (Brazil) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
12. PACNET CHILE (a.k.a. THE PAYMENTS FACTORY CHILE LIMITADA), Av. Vicuna Mckenna 2598, Macul, Santiago de Chile, Chile [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
13. PACNET CONNECTIONS LIMITED, Shannon Airport House, Shannon Free Zone, Co. Clare, Ireland; 4 Michael Street, Co. Limerick, Ireland; Registration ID 332576 (Ireland) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
14. PACNET EUROPE, Shannon Airport House, SFZ, Country Clare, Ireland; Web site
15. PACNET FRANCE (a.k.a. PACNET SERVICES (FRANCE) SARL), 17 rue de Teheran, 75008 Paris, France [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
16. PACNET HOLDINGS LIMITED (f.k.a. COUNTING HOUSE (EUROPE) LIMITED), Shannon Airport House, Shannon Free Zone, Co. Clare, Ireland; Four Michael Street, Limerick, Ireland; Registration ID EO348346 (Ireland) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
17. PACNET HONGKONG (a.k.a. PACNET SERVICES (HK) LTD.), 2001 Central Plaza, 18 Harbour Road, Wanchai, Hong Kong [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
18. PACNET INDIA (a.k.a. PACNET SERVICES (INDIA) PRIVATE LIMITED), 208, Rewa Chambers, 31 New Marine Lines, Mumbai 400 020, India; National ID No. U67190MH2005PTC15766 (India) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
19. PACNET MALTA (a.k.a. PACNET SERVICES (MALTA) LTD.), The Dixcart Suite, Level 11, Le Meridien, St. Julians, Malta; The Dixcart Suite, Level 11, LE, 39, Main Street, Balluta Bay, St. Julians STJ1017, Malta; Company Number C 52227 (Malta) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
20. PACNET SERVICES (IRELAND) LIMITED, 222 Shannon Airport House, Shannon, Co. Clare, Ireland; Registration ID 452666 (Ireland) [TCO] (Linked To: PACNET HOLDINGS LIMITED; Linked To: PACNET GROUP).
21. PACNET SERVICES LTD. (a.k.a. PACIFIC NETWORK SERVICES LTD.; a.k.a. PACNET AMERICAS; a.k.a. PACNET CANADA; a.k.a. PACNET SERVICES AMERICAS LTD.), Fourth Floor, 595 Howe St, Vancouver, BC V6C 2T5, Canada; Parkshot House, 5 Kew Road, Richmond, Surrey, England TW9 2PR, United Kingdom; Registration ID M08842780 (Canada); Company Number BC0469083 (Canada); License 15128950 (Canada) [TCO] (Linked To: DAY, Rosanne Phyllis; Linked To: PACNET GROUP).
22. PACNET SUISSE (a.k.a. PACNET SERVICES (SUISSE) SA), Carrefour du Rive 1, Geneva, Switzerland; Alpenstrasse 15, 6304, Zug, Switzerland; Identification Number CHE-109.623.231 (Switzerland); alt. Identification Number CH66012280021 (Switzerland) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
23. PACNET UK (a.k.a. PACIFIC NETWORK SERVICES (UK) LTD.), The Old Mill, Park Road, Shepton Mallet, Somerset IK BA4 5BS, United Kingdom [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
24. PACNET ZAR (f.k.a. GOLDEN DIVIDEND 234 (PTY) LTD.; a.k.a. PACNET SERVICES ZAR (PROPRIETARY) LTD.), 13 Wellington Road, Parktown, Johannesburg 2193, South Africa; 22 Wellington Road, Parktown, Western Cape 2193, South Africa; Private Bag X60500, Houghton, Guateng 2041, South Africa; Registration ID 200503498307 (South Africa); Tax ID No. 9871659141 (South Africa) [TCO] (Linked To: PACNET SERVICES LTD.; Linked To: PACNET GROUP).
25. THE PAYMENTS FACTORY LTD. (f.k.a. RUMENO SONCE 60 D.O.O.; a.k.a. THE PAYMENTS FACTORY D.O.O.; a.k.a. THE PAYMENTS FACTORY LLC; a.k.a. THE PAYMENTS FACTORY LLC—PERU; a.k.a. THE PAYMENTS FACTORY PERU LLC), 69 Buchanan Street, Glasgow, Scotland G1 3HL, United Kingdom; 4th Floor, 595 Howe Street, Vancouver, BC V6C 2T5, Canada; Suite 3, 3rd Floor, Britannia House, St. Georges Street, Douglas, Isle of Man IM1 1JD, United Kingdom; 1521 Concord Pike, #303, Wilmington, DE 19803, United States; Pasaje Retiro 574 of. 201, Ciudad Satelite, Santa Rosa, Provincia Callao, Peru; 2-22-7, Shibuya, Shibuya-ku, Tokyo 150-0002, Japan; Jr. Retiro No. 574, Dpto. 201, Callao 01, Peru; 3 Independent Dr., Jacksonville, FL 32202-5004, United States; Tehnoloski park 24, Ljubljana 1000, Slovenia; Shannon Airport House SFZ, County Clare V14 E370, Ireland; 89/247 Soi Ruammit Phatthana Yeak 1, Tharang Sub-District, Bang Kehn District, Bangkok Province, Thailand; Web site
1. N840PN; Aircraft Model 690c; Aircraft Operator Pacnet Air; Aircraft Manufacturer's Serial Number (MSN) 11679; Aircraft Tail Number N840PN (aircraft) [TCO] (Linked To: DAVIS, Robert Paul; Linked To: PACNET AIR; Linked To: PACNET GROUP).
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 28, 2016.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
VBA conducted a benchmark study in Fiscal Year 2013 (October 2012 through January 2013) in order to validate the survey instruments, identify Key Performance Indicators, and establish performance benchmarks. Findings and recommendations were presented to VBA Leadership and stakeholders within each line of business in April 2013.
Based on interviews conducted, VBA has separated the Veterans experience with VBA into two categories:
1.
2.
Each business line desired to understand the components of the overall customer experience. Each VBA business line wanted to engage their Veteran population with relevant questions regarding their experience. The following outlines how that is approached with each of the lines of business.
During 2014 J.D. Power fielded three survey instruments for the Compensation and Pension programs. Discussions with stakeholders from both programs indicated that one survey instrument could be used for both Compensation and Pension
The
J.D. Power fielded two survey instruments for Education Service. The
J.D. Power fielded two survey instruments for Loan Guaranty Service. The survey pool for the tracking study for the
J.D. Power fielded three survey instruments for Vocational Rehabilitation & Employment Service (VR&E). The
By direction of the Secretary.
National Cemetery Administration, Department of Veterans Affairs.
OMB Review.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the National Cemetery Administration (NCA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before October 27, 2016.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-5870 or email
By direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is promulgating a final Federal Implementation Plan (FIP) addressing the requirements of the Regional Haze Rule and interstate visibility transport for the portions of Arkansas' Regional Haze State Implementation Plan (SIP) that EPA disapproved in a final rule published in the
This final rule is effective on October 27, 2017.
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2015-0189. All documents in the docket are listed on the
Ms. Dayana Medina at 214-665-7241; or
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. Also throughout this document, when we refer to the Arkansas Department of Environmental Quality (ADEQ), we mean Arkansas.
B. EPA's Authority To Promulgate a FIP
The purpose of Federal and state regional haze plans is to achieve a national goal, declared by Congress, of restoring and protecting visibility at 156 Federal Class I areas across the United States, most of which are national parks and wilderness areas with scenic vistas enjoyed by the American public. The national goal, as described in CAA Section 169A, is “the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from man-made air pollution.” States are required to submit SIPs that ensure reasonable progress toward the national goal of remedying anthropogenic visibility impairment in Federal Class I areas. Arkansas has two Federal Class I areas, the Caney Creek Wilderness Area (Caney Creek) and Upper Buffalo Wilderness Area (Upper Buffalo). Please refer to our previous rulemaking on the Arkansas Regional Haze SIP for additional background information regarding the CAA, regional haze, and the Regional Haze Rule.
In our previous action on the Arkansas Regional Haze SIP, we approved a number of elements but disapproved others.
We are also making a finding that the combination of the approved portion of the Arkansas Regional Haze SIP and this FIP satisfy the requirements of CAA section 110(a)(2)(D)(i)(II) with respect to visibility (interstate visibility transport requirement) for the 1997 8-hour ozone and 1997 PM
In this document, we summarize our responses to comments received during our comment period on our proposed rule and indicate where we have made adjustments based on the comments and additional information we received. In some cases, we have adjusted the emission limits, compliance deadlines, and requirements for testing and demonstration of compliance in response to information received during the comment period. We also received several comments, from Entergy and Sierra Club, after the close of the comment period, which included new information on an alternative approach for White Bluff. We do not address these late comments in our rulemaking and they are not a basis for our decision in this action. We do note that the new information regarding an alternative approach may have promise with respect to addressing the BART requirements for White Bluff, and we encourage the State to consider it as it develops a SIP revision to replace our FIP.
EPA is promulgating this partial FIP to address the deficiencies in the Arkansas Regional Haze SIP and the SIP revision submitted by the State to address the interstate visibility transport requirements.
Arkansas submitted a SIP to address the regional haze requirements for the first planning period on September 23, 2008. On August 3, 2010, Arkansas submitted a SIP revision that addressed the Arkansas Pollution Control and Ecology Commission (APCEC) Regulation 19, Chapter 15, which is the State rule that identifies the BART-eligible and subject-to-BART sources in Arkansas and establishes the BART emission limits that subject-to-BART sources are required to comply with. On September 27, 2011, the State submitted supplemental information related to regional haze. We are hereafter referring to these regional haze submittals collectively as the “Arkansas Regional Haze SIP.” On April 2, 2008, Arkansas submitted a SIP revision to address the interstate visibility transport requirement of CAA section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and 1997 PM
Our final partial disapproval of the Arkansas RH SIP and interstate visibility transport SIP started a 2-year FIP clock such that we have an obligation to approve a SIP revision and/or promulgate a FIP to address the disapproved portions of the SIP within 2 years of our final partial disapproval action. We began working in 2012 with ADEQ and the affected facilities to revise the disapproved portions of the SIP. However, a SIP revision was not submitted and the FIP clock expired in April 2014. On April 8, 2015, we proposed a FIP to address the disapproved portions of the Arkansas Regional Haze SIP and interstate visibility transport SIP.
Under CAA section 110(c), EPA is required to promulgate a FIP at any time within 2 years of the effective date of a finding that a state has failed to make a required SIP submission or has made an incomplete submission, or of the date that EPA disapproves a SIP in whole or in part. The FIP requirement is terminated only if a state submits a SIP, and EPA approves that SIP as meeting applicable CAA requirements before promulgating a FIP. CAA section 302(y) defines the term “Federal implementation plan” in pertinent part, as a plan (or portion thereof) promulgated by EPA “to fill all or a portion of a gap or otherwise correct all or a portion of an inadequacy” in a SIP, and which includes enforceable emission limitations or other control measures, means or techniques (including economic incentives, such as marketable permits or auctions or emissions allowances).
As discussed above, in a final action published on March 12, 2012, we disapproved in part the Arkansas Regional Haze SIP and the SIP submitted by the state to address the interstate visibility transport requirement of CAA section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and 1997 PM
In this section, we provide a summary of our proposed rule that was published in the
Our FIP proposal addressed the disapproved portions of the Arkansas Regional Haze SIP and interstate visibility transport SIP. In our March 12, 2012 final action on the Arkansas Regional Haze SIP, we disapproved some of the state's BART determinations and we also determined that the SIP did not include the required analysis of the four reasonable progress factors. Therefore, we partially disapproved the state's LTS for Caney Creek and Upper Buffalo and also disapproved the RPGs established by the state.
CAA section 169A(b)(2)(A) requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate the “best available retrofit technology,” as determined by the state or EPA in the case of a plan promulgated under section 110(c) of the CAA. Under the Regional Haze Rule, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. Rather than requiring source-specific BART controls, states or EPA in a FIP also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART. CAA section 169(g)(2) and the Regional Haze Rule at 40 Code of Federal Regulations (CFR) § 51.308(e)(1)(A) provide that in determining BART, the state or EPA in a FIP shall take into consideration the following factors: Costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. We commonly refer to these as the BART factors, or the five statutory factors. CAA section 169(g)(1) and § 51.308(d)(1) also require that in determining reasonable progress, there shall be taken into consideration the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements. We commonly refer to these as the reasonable progress factors, or the four statutory factors. Consistent with the requirement in CAA section 169A(b) that states include in their regional haze SIP a 10—15 year strategy for making reasonable progress, § 51.308(d)(3) requires that states include a LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet any applicable RPGs. The LTS must include enforceable emissions limitations, compliance schedules, monitoring and recordkeeping requirements, and various supporting documentation and analyses to ensure that the SIP or FIP will provide reasonable progress toward the national goal of natural visibility conditions.
Our FIP proposal included proposed BART determinations for nine units at six facilities and proposed reasonable progress determinations for two units at one facility in Arkansas. These determinations resulted in proposed emission limits, compliance schedules, and other requirements for these sources. The proposed regulatory language was included under Part 52 at the end of that document. We also addressed the RPGs, as well as the LTS requirements. Lastly, we proposed that the approved measures in the Arkansas Regional Haze SIP and measures in our proposed FIP would adequately address the interstate transport of pollutants that affect visibility requirement for the 1997 8-hour ozone and 1997 PM
We proposed that BART for NO
We proposed that BART for NO
Power Boiler No. 2 is subject to the Boiler Maximum Achievable Control Technology (MACT) standards for PM required under CAA section 112, and found at 40 CFR part 63, subpart DDDDD—National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. We proposed to find that the current Boiler MACT PM standard satisfies the PM BART requirement for Power Boiler No. 2. We also proposed that the same method for demonstrating compliance with the Boiler MACT PM standard is to be used for demonstrating compliance with the PM BART emission limit. We proposed to require the source to comply with this emission limit for BART purposes as of the effective date of the final rule.
As a starting point in our analysis to determine whether additional controls on Arkansas sources are necessary to make reasonable progress in the first regional haze planning period, we examined the most recent SO
We conducted source-specific reasonable progress analyses of potential SO
We proposed to require SO
We also proposed to require NO
In addition to Options 1 and 2, we also solicited public comment on any alternative SO
On May 1, 2015, we published a notice in the
Our proposed revised RPGs and our methodology for calculating the revised RPGs were discussed in detail in our FIP proposal and in our technical support documentation,
Among other things, CAA section 110(a)(2)(D)(i)(II) requires that all SIPs contain adequate provisions to prohibit emissions that will interfere with measures required to protect visibility in other states. We refer to this as the interstate transport visibility requirement. Our proposed FIP included emission limits for Arkansas sources under the BART and reasonable progress requirements that would ensure a level of emissions reductions at least as great as what surrounding states relied on in developing their regional haze SIPs. We proposed that the combination of the measures in the approved portions of the Arkansas Regional Haze SIP and our FIP proposal would satisfy the visibility requirement of CAA section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and 1997 PM
Below, we present a summary of our final Arkansas Regional Haze FIP. In this section, we provide a summary of our final BART determinations, reasonable progress determinations, revised RPGs, LTS provisions, and interstate transport provisions. This final FIP includes emission limits, compliance schedules, and requirements for equipment maintenance, monitoring, testing, recordkeeping, and reporting for all affected sources and units.
We note that we are finalizing our FIP with certain changes to our proposal in response to comments we received during the public comment period. In particular, we are finalizing a bifurcated NO
We are finalizing SO
These changes to our proposal are discussed in more detail in the subsections that follow and in our separate Response to Comment (RTC) document, which can be found in the docket for this final rulemaking. The final regulatory language for the FIP is under Part 52 at the end of this notice.
The final FIP requires that subject-to-BART sources comply with the emission limits contained in Table 1 below and that the Independence Plant comply with the emission limits contained in Table 2 below. We are determining that the BART emission limits for the sources listed in Table 1 are also sufficient for reasonable progress. Throughout this section of the final rule, we specify the averaging basis of each emission limit and associated compliance dates.
We are finalizing our determination that the Georgia-Pacific Crossett Mill 6A Boiler is a BART-eligible source, but is not subject to BART. We are also finalizing our determination that the 9A Boiler, which the State had previously determined is BART-eligible, is not subject to BART. These determinations are based on the company's newly provided analysis and documentation, as described above and in our proposal. Therefore, the CAA and Regional Haze Rule do not require BART determinations for the 6A and 9A Boilers.
Bailey Unit 1 burns primarily natural gas, but is also permitted to burn fuel oil. Our proposal explains why the source needs to retain the flexibility to use fuel oil. Taking into consideration the BART factors, we are finalizing BART determinations and emission limits for SO
Our final BART determination for NO
AECC McClellan Unit 1 burns primarily natural gas, but is also permitted to burn fuel oil. Our proposal explains why the source needs to retain the flexibility to use fuel oil. Taking into consideration the BART factors, we are finalizing BART determinations and emission limits for SO
Our final BART determination for NO
Taking into consideration the BART factors, we are finalizing our determination that BART for SO
In our proposal, we stated that we believed that the maximum compliance time of 5 years allowed under the CAA and Regional Haze Rule was appropriate for a new scrubber retrofit and proposed to require the source to comply with this emission limit no later than 5 years from the effective date of the final rule.
Taking into consideration the BART factors, we are finalizing our determination that BART for NO
We received comments from the company requesting that we extend our proposed 3-year compliance date for the NO
Several commenters submitted comments stating that Arkansas is subject to the Cross State Air Pollution Rule (CSAPR) for ozone season NO
Taking into consideration the BART factors, we are finalizing our determination that BART for SO
Several commenters requested that we rely on CSAPR to satisfy the NO
We are requiring White Bluff Units 1 and 2 to each meet a NO
In addition to the 0.15 lb/MMBtu emission limit that is intended to control NO
As discussed in section V.F. of this final rule, in response to comments we received, we are shortening the compliance date for the NO
In our proposal, we also solicited public comment on any alternative SO
We are finalizing our determination that the existing emission limit of 105.2 lb/hr is BART for SO
Taking into consideration the BART factors, we are finalizing our determination that BART for NO
We are also finalizing our determination that Lake Catherine Unit 4 shall not burn any fuel oil unless or until Arkansas submits a SIP revision that contains BART determinations for SO
In response to comments received from the company, we are finalizing an SO
We are finalizing a NO
In response to comments we received from the company, we are finalizing one alternative method for demonstrating compliance with the SO
In response to comments we received from the company, we are revising our definition of “boiler-operating-day” as it applies to Power Boilers Nos. 1 and 2 under this FIP. The company commented that for mill operation purposes, it defines boiler-operating-day as “a 24-hr period between 6 a.m. and 6 a.m. the following day during which any fuel is fed into and/or combusted at any time in the power boiler.” After carefully considering the comment, we agree with the company that it is reasonable and appropriate to harmonize our definition of a boiler-operating day with that of the mill to avoid any unnecessary modification or reprogramming of Power Boilers 1 and 2. Therefore, for purposes of BART for Power Boilers No. 1 and 2, we are defining a boiler-operating-day as a 24-hour period between 6 a.m. and 6 a.m. the following day during which any fuel is fed into and/or combusted at any time in the power boiler. The 30-day rolling average for Power Boiler No. 1 shall be determined by adding together the pounds of SO
In response to comments we received from the company, we are also revising our proposed compliance dates for SO
In response to comments we received from the company, we are finalizing an emission limit of 91.5 lb/hr based on a 30 boiler-operating-day rolling average instead of 0.11 lb/MMBtu. As discussed in our proposal, Domtar provided monthly average data for 2011, 2012, and 2013 on monitored SO
During the public comment period, the company submitted comments requesting that we finalize an SO
We also received comments from Domtar expressing uncertainty as to whether our proposed SO
As discussed in more detail elsewhere in this final rule and in our RTC document, we disagree that it is appropriate to use 2001-2003 as the baseline period for purposes of calculating the SO
We proposed to require the facility to demonstrate compliance with the SO
Taking into consideration the BART factors, we are finalizing our determination that BART for NO
We proposed to require the facility to demonstrate compliance with this NO
As discussed above, in response to comments we received from Domtar, we are also revising our definition of “boiler-operating-day” as it applies to Power Boilers No. 1 and 2 for BART purposes. For purposes of SO
We proposed to require the Domtar Ashdown Mill to comply with the SO
We are finalizing our determination that Domtar must satisfy the PM BART requirement by relying on the applicable Boiler MACT PM standard as revised.
In response to comments we received from the company, we are revising our proposed compliance date for PM BART for Power Boiler No. 2. The company submitted comments requesting that we finalize a compliance date of 30 days after the effective date of the final rule instead of requiring the source to comply with BART as of the effective date of the final rule. The company noted that this would provide additional time for it to prepare compliance records. We determined that the company's request is reasonable and would provide the mill with additional time to understand the applicable BART requirements and to prepare compliance records and adjust recordkeeping systems without unduly delaying compliance with the BART emission limit. Therefore, we are requiring Power Boiler No. 2 to comply with the PM BART emission limit no later than 30 days from the effective date of this final rule.
In our proposed rule, we explained that the CENRAP CAMx modeling with PSAT showed that sulfate from all source categories combined contributed 87.05 inverse megameters (Mm
In our proposal, we explained that point sources are responsible for a majority of the total light extinction at each Class I area, contributing approximately 60% of the total light extinction. Point sources contributed 81.04 Mm
As a starting point in our analysis to determine whether additional controls on Arkansas sources are necessary to make reasonable progress in the first regional haze planning period, we examined the most recent SO
We also found that the remaining point sources in the state had much lower SO
In our reasonable progress analysis for Independence, we considered the four statutory factors under CAA section 169A(g)(1) and 40 CFR 51.308(d)(1)(i)(A): The costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements. Alongside the four statutory factors, we also considered the visibility improvement of controls. Although visibility is not one of the four mandatory factors explicitly listed for consideration under CAA section 169A(g)(1) or 40 CFR 51.308(d)(1)(i)(A), states or EPA have the option of considering the projected visibility benefits of controls in determining if the controls are necessary to make reasonable progress. In our proposal, we explained that SO
Based on our reasonable progress analysis under 40 CFR 51.308(d)(1), we discussed in our proposal that SO
Based on our consideration of the four reasonable progress factors and the visibility impacts from Independence and the visibility improvement of controls, we proposed two alternative options for reducing emissions at Independence Units 1 and 2. Under Option 1, we proposed to require both SO
We received many comments opposed to our proposal to establish
Other comments we received stated that Arkansas' point sources have a very small impact on visibility impairment at Arkansas' Class I areas on the 20% worst days and that we should therefore not require any controls at Independence under the reasonable progress requirements. At a minimum, these commenters argued, the contribution to visibility impairment at Arkansas' Class I areas on the 20% worst days from point-source nitrate emissions was insignificant, so NO
While the majority of the visibility impacts due to Independence on the 20% worst days are due to SO
In response to comments we received on our initial cost analysis presented in our proposal, we have revised our cost estimate for dry FGD for Independence Units 1 and 2. Based on this revision to our cost analysis, we find that dry FGD is estimated to cost $2,853/SO
As discussed in our proposal, LNB/SOFA controls on Independence are estimated to cost $401/NO
We received comments from the company stating that Independence Units 1 and 2 are no longer expected to be able to consistently meet our proposed NO
We also received comments during the public comment period from Entergy that presented an alternative multi-unit approach to address the regional haze requirements for White Bluff Units 1 and 2 and Independence Units 1 and 2.
We proposed RPGs for the 20% worst days for Caney Creek and Upper Buffalo of 22.27 dv and 22.33 dv, respectively that reflected the anticipated visibility conditions resulting from the combination of control measures from the approved portion of the 2008 Arkansas Regional Haze SIP and our FIP proposal. We received comments on our proposal indicating that our proposed RPGs for the 20% worst days for Caney Creek and Upper Buffalo improperly incorporated visibility improvements that would not occur until after 2018. After considering these comments, we agree that the RPGs should reflect anticipated visibility conditions at the end of the implementation period in 2018 rather than the anticipated visibility conditions once the FIP has been fully implemented. This approach is consistent with the purpose of RPGs and the direction provided in our 2007 Reasonable Progress Guidance.
Section 169B(e)(1) of the CAA directed the Administrator to promulgate regulations that “include[e] criteria for measuring `reasonable progress' toward the national goal.” Consequently, we promulgated 40 CFR 51.308(d)(1) as part of the Regional Haze Rule. This provision directs states to develop RPGs for the most and least impaired days to “measure” the progress that will be achieved by the control measures in the state's long-term strategy “over the period of the implementation plan.”
In this instance, we are taking final action on the Arkansas Regional Haze FIP 9 years after the state's initial SIP submission was due.
We are finalizing our determination that the provisions in this final rule, in combination with provisions in the approved portion of the Arkansas Regional Haze SIP, fulfill the Regional Haze Rule's long-term strategy requirements. The long-term strategy must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve reasonable progress at Class I areas impacted by emissions from Arkansas. In this final rule, we are promulgating emission limits, compliance schedules, and other requirements for nine units subject to BART and for two reasonable progress units.
We are finalizing our determination that the control measures in the approved portion of the Arkansas Regional Haze SIP and our final FIP are adequate to prevent Arkansas' emissions from interfering with other states' required measures to protect visibility. Thus, the combined measures from both plans satisfy the interstate transport visibility requirement of CAA section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and the 1997 PM
We received comments at the public hearing held in Little Rock, as well as comments submitted electronically on
As an initial matter, we note that Entergy does not appear to be proposing that we apply the provisions of sections 308(e)(2) and 308(e)(3) to determine that its multi-unit strategy is an alternative program that provides more reasonable progress than BART. To the extent that this is Entergy's proposal, we cannot approve Entergy's multi-unit plan as an alternative to BART because it does not meet the requirements of section 308(e)(2)(iii) that “all necessary emission reductions take place during the first planning period,”
Entergy proposes that White Bluff Units 1 and 2 would meet an SO
Even if it were not necessary to evaluate DSI or if we found it to not be cost effective for use at White Bluff in the interim period before coal combustion ceases, Entergy's alternative proposal would still not satisfy the BART requirements for White Bluff because it does not propose SO
Although, as we have already established, Entergy's alternative proposal cannot constitute a BART alternative because all necessary emission reductions will not take place during the first implementation period and the alternative proposal also does not satisfy the source-specific BART requirements of section 308(e)(1) for White Bluff, in response to Entergy's comment that its alternative proposal would achieve almost the same level of visibility benefit as the FIP, we compared the potential impacts of Entergy's proposal to our FIP. Despite the ambiguity in the comments submitted by Entergy regarding its alternative proposal, for purposes of assessing the visibility impacts of the company's proposed approach we have assumed that post-2028 SO
As shown in Table 17, considering the four units combined, we estimate that our FIP proposal would achieve annual emissions reductions of 21,283 SO
We also note that Entergy does not appear to be requesting in the comments submitted during the comment period that we adopt the elements in its alternative proposal that are unique to White Bluff as an alternative to our proposed BART emission limits at the facility unless we also conclude that the remaining elements address any reasonable progress requirements for Independence. In other words, Entergy's comments provide no indication that it is willing to accept a binding requirement to cease coal combustion at White Bluff by 2027/2028, unless we also accept the elements of its alternative proposal that are applicable to Independence as satisfying the reasonable progress requirements. Even if we had interpreted Entergy's comments as requesting that we adopt the elements in its alternative proposal that are unique to White Bluff as an alternative to our proposed BART emission limits at the facility without these elements being linked to the remaining elements addressing the reasonable progress requirements for Independence, we conclude that we would not be able to incorporate the Entergy alternative proposal into the final FIP as a way of meeting the BART requirement for White Bluff for the reasons already discussed above.
Similarly, we also conclude that we cannot consider Entergy's proposal to meet the reasonable progress requirements with respect to Independence if Independence is considered in isolation. SO
We recognize that ceasing coal combustion at White Bluff Units 1 and 2 could result in greater nonair environmental benefits and in more emission reductions of mercury and other hazardous air pollutants and CO
In response to Entergy's comment regarding the cost to install dry FGD and as discussed in more detail in our RTC document, we have revised our cost calculations of SO
As we discuss in more detail elsewhere in this final rule, based on our consideration of the four reasonable progress factors and of the visibility impacts and visibility improvement of controls on Independence, we have determined that dry scrubbers and LNB/SOFA controls on Independence Units 1 and 2 are necessary to make reasonable progress at Arkansas' Class I areas. We have also revised our cost calculations of SO
We are requiring White Bluff Units 1 and 2 under BART and Independence Units 1 and 2 under reasonable progress to each meet an SO
We do note that if Arkansas submits a regional haze SIP revision to replace our FIP, the state has the discretion to consider an approach to address the BART requirements for White Bluff that involves ceasing coal combustion at Units 1 and 2 by 2027/2028, but an approvable SIP revision must also include consideration and evaluation of DSI as a possible interim BART control option. With respect to Independence, a strategy that includes controls for Independence similar to the elements of Entergy's alternative proposal that are specific to White Bluff (
With regard to the comment that Entergy's alternative multi-unit strategy would ensure that Arkansas' Class I areas remain below the URP glidepath, we discuss in section V.C. of this final rule and in our RTC document that being on or below the URP glidepath does not mean that the BART requirements for White Bluff Units 1 and 2 and the reasonable progress requirements for Independence Units 1 and 2 are automatically satisfied.
We commonly refer to the evaluation of these four statutory factors as the “four-factor analysis” or “reasonable progress analysis.” The statute and regulations are both clear that the states or EPA in a FIP have the authority and obligation to evaluate the four reasonable progress factors and that the decision regarding the controls required to make reasonable progress and the establishment of the RPG must be based on these factors identified in the CAA section 169A(g)(1) and the Regional Haze regulations under § 51.308(d)(1)(i)(A). While the regulations require that a state must also consider the URP glidepath in establishing the RPGs, this should not be interpreted to mean that the URP can or should be automatically adopted as the RPG without completing the requisite analysis of the four statutory factors. It also should not be interpreted to mean that a set of controls sufficient to achieve the URP is automatically sufficient for an approvable long-term strategy. Clearly, a state's obligation to set reasonable progress goals based on CAA section 169A(g)(1) and § 51.308(d)(1) applies in all cases, without regard to the Class I area's position on the URP. Since an evaluation of the factors is required regardless of the Class I area's position on the glidepath, this necessarily means that the CAA and the Regional Haze regulations envisioned that controls could be required under reasonable progress even when a Class I area is on or below the URP glidepath. There is nothing in the CAA or Regional Haze regulations that suggests that a State's obligation, or EPA's in a FIP, to ensure reasonable progress can be met by just meeting the URP.
Some commenters also argue that the EPA's 2007 Reasonable Progress
Given the significant emissions reductions that we anticipate to result from BART, the CAIR, and the implementation of other CAA programs, including the ozone and PM
We see nothing in the Reasonable Progress Guidance indicating that additional controls can only be required if further action beyond BART is needed to remain on or below the URP glidepath. Nor do we see anything in the Reasonable Progress Guidance indicating that a state (or EPA) is exempt from completing the four factor analysis if a Class I area is on or below the URP glidepath. As discussed above, the CAA and Regional Haze regulations are clear that an evaluation of the four statutory factors is required, and this requirement applies regardless of the Class I area's position on the glidepath. We noted in our FIP proposal that the preamble to the Regional Haze Rule states that the URP does not establish a “safe harbor” for the state in setting its progress goals:
If the State determines that the amount of progress identified through the [URP] analysis is reasonable based upon the statutory factors, the State should identify this amount of progress as its reasonable progress goal for the first long-term strategy, unless it determines that additional progress beyond this amount is also reasonable. If the State determines that additional progress is reasonable based on the statutory factors, the State should adopt that amount of progress as its goal for the first long-term strategy.
Being projected to meet the URP for 2018 does not justify dismissing the analysis required under CAA section 169A(g)(1) and § 51.308(d)(1) in determining reasonable progress and establishing the RPGs, nor does it automatically mean that no additional controls beyond BART are required under reasonable progress. The URP is an analytical requirement created by regulation to ensure that states consider the possibility of setting an ambitious reasonable progress goal. Its purpose is to complement, not usurp, the reasonable progress analysis. Based on the analysis of the four statutory factors required under the CAA and Regional Haze regulations, a state (or EPA in a FIP) may determine that a greater or lesser amount of visibility improvement than what is reflected in the URP is necessary to demonstrate reasonable progress.
We note that our conclusion here is consistent with our final action on the Arkansas Regional Haze SIP, where we disapproved Arkansas' RPGs specifically because the state established its RPGs without conducting an evaluation of the four statutory factors and did so based on the fact that its Class I areas are below the URP glidepath. In the preamble to our final action on the Arkansas Regional Haze SIP, we were clear that an evaluation of the four statutory factors is required regardless of the Class I area's position on the URP glidepath:
[B]eing on the “glidepath” does not mean a state is allowed to forego an evaluation of the four statutory factors when establishing its RPGs. Based on an evaluation of the four statutory factors, states may determine that RPGs that provide for a greater rate of visibility improvement than would be achieved with the URP for the first implementation period are reasonable.
Our final action on the Arkansas Regional Haze SIP was published in the
With regard to the comment contending that we are ignoring data from ADEQ's Five-Year Progress Report SIP revision, we note that Arkansas submitted the first 5-year report to EPA in June 2015, and that we are not addressing that SIP revision within this action.
We acknowledge that recent IMPROVE monitoring data indicate there has been visibility improvement in Arkansas' Class I areas. But even assuming that the current trend in visibility improvement will continue, as the commenter argues, this does not divest us from our authority and obligation to conduct a reasonable progress analysis, nor does it justify the dismissal of controls for Independence that we have determined, pursuant to that analysis, are cost-effective and would result in meaningful visibility benefit at Arkansas' Class I areas. The commenters point out that even without the BART and reasonable progress controls required by our FIP, Caney Creek has achieved 73% and Upper Buffalo has achieved 66% of their respective 2018 RPGs established by Arkansas based on 5-year average data from IMPROVE monitors as of 2011. However, even if we had approved these RPGs (which we did not), achieving or being projected to achieve the RPG does not necessarily demonstrate that a state has satisfied its requirements under BART and reasonable progress. The state or EPA must complete the requisite analyses to determine appropriate controls and emission limits under the BART and reasonable progress requirements, and must adopt and enforce these controls and emission limits. The numeric RPGs are calculated by taking into account the visibility improvement anticipated from these enforceable emission limitations and other control measures (including BART, reasonable progress, and other “on the books” controls). The Regional Haze Rule provides that these emission limitations and control measures are what is enforceable, not the RPGs
As noted above, we disapproved Arkansas' RPGs in our March 12, 2012 final action on the Arkansas Regional Haze SIP
The commenter's suggestion that because the RPGs are not themselves enforceable we cannot require specific enforceable limits for a single plant is not consistent with the requirement that each regional haze SIP or FIP include enforceable emissions limitations as necessary to ensure that the SIP or FIP will provide reasonable progress toward the national goal of natural visibility conditions. The numeric RPGs established by the state or EPA represent the best estimate of the degree of visibility improvement that will result in 2018 from changes in emissions inventories, changes driven by the particular set of control measures the state has adopted in its regional haze SIP or EPA in a regional haze FIP to address visibility, as well as all other enforceable measures expected to reduce emissions over the period of the SIP from 2002 to 2018.
We also disagree that the fact that a non-BART source has significant SO
The commenter makes the incorrect claim that our primary justification for imposing emission limits under reasonable progress for Independence Units 1 and 2 is that it would be unreasonable to ignore a source representing more than a third of the state's SO
We believe it is appropriate to evaluate Entergy Independence even though Arkansas Class I areas and those outside of Arkansas most significantly impacted by Arkansas sources are projected to meet the URP for the first planning period. This is because we believe that in determining whether reasonable progress is being achieved, it would be unreasonable to ignore a source representing more than a third of the State's SO
As evidenced by the full citation from our FIP proposal, the fact that we considered it unreasonable to ignore a source representing more than a third of the State's SO
We do not agree with the commenter's allegation that we did not appropriately analyze what sources, if any, should be controlled under reasonable progress. To the extent that the commenter contends that our process for determining which sources should be evaluated under reasonable progress was incorrect because we did not conduct photochemical modeling, such argument is incorrect. To the extent that the commenter contends that we treated the Independence facility like a BART source because we evaluated it under the reasonable progress requirements without conducting photochemical modeling to identify potential sources to evaluate under reasonable progress, this is also incorrect. We are not required to conduct photochemical modeling in a reasonable progress analysis. Our 2007 Reasonable Progress Guidance states that “The RHR gives States wide latitude to determine additional control requirements, and there are many ways to approach identifying additional reasonable measures; however, you must at a minimum, consider the four statutory factors.”
Our FIP proposal provided a detailed explanation of how we determined what sources to evaluate for controls under reasonable progress, and we provided a reasonable rationale for the approach we used. The first step in our analysis involved determining what source categories or specific point sources it would be appropriate to look at more closely and evaluate under the reasonable progress requirements in § 51.308(d)(1) to determine if additional controls are necessary. We explained in our proposal that it was appropriate to focus our analysis on point sources since the other source categories (
The CENRAP CAMx modeling shows that on most of the 20% worst days in 2002, total extinction was dominated by sulfate at both Caney Creek and Upper Buffalo.
We explained in our FIP proposal that as a starting point in our analysis to determine whether additional controls on Arkansas point sources are reasonable in the first regional haze planning period, we examined the most recent SO
After White Bluff, Independence, and Flint Creek, the remaining point sources in the state have much lower SO
The fourth largest SO
Future Fuel Chemical Company, the point source with the fourth highest SO
Because our examination of the Arkansas emissions inventory revealed that the number of point sources that emit SO
We do note that while we did not conduct photochemical modeling to identify Arkansas point sources to evaluate under reasonable progress, Entergy conducted CAMx source-apportionment modeling and submitted it during the comment period. Entergy's CAMx source apportionment modeling showed that emissions from the Independence facility alone are projected to contribute approximately 1.3% of the total visibility impairment in 2018 on the 20% worst days at each Arkansas Class I area. This is a large portion (approximately one-third) of the total contribution from all Arkansas point sources, and we consider it to be a significant contribution to visibility impairment Arkansas' Class I areas on the 20% worst days. The CAMx modeling also showed that at Upper Buffalo, the Independence facility's contribution to visibility impairment is greater than the contribution from all of the subject-to-BART sources addressed in this final action combined. In terms of deciviews, the average impact from Independence over the 20% worst days, based on Entergy's CAMx modeling and adjusted to natural background conditions, is over 0.5 dv at the Arkansas Class I areas. The results of Entergy's CAMx modeling confirm and provide additional support to our determination that Independence significantly impacts visibility at Arkansas' Class I areas.
Additionally, we note that because of the controls required during this planning period, we expect that the impact from the facilities in Arkansas that were not controlled and not specifically evaluated in the first planning period will become larger on a percentage basis. These sources will become the largest impacting sources and should be considered for analysis under reasonable progress in future planning periods. The methodology we used here thus allows a consistent procedure to identify facilities for additional control analysis in this and future planning periods and ensures continuing progress towards the goal of natural visibility conditions.
To the extent the commenter contends that additional controls under reasonable progress cannot or should not be evaluated or required unless controls beyond BART are needed for Arkansas to be on or below the URP glidepath or to meet the RPGs established by the state (which, in the case of Arkansas, we disapproved in a previous final action), this is incorrect. As we discuss elsewhere in this section of the final rule and in our RTC document, there is nothing in the CAA or Regional Haze regulations that suggests that a State's obligations to ensure reasonable progress can be met simply by being on or below the URP glidepath or meeting the state's RPGs.
As discussed in our proposal and elsewhere in this final rule, we have found that dry scrubbers for SO
Based on Entergy's CAMx modeling, SO
Under section 110(c) of the Act, whenever we disapprove a mandatory SIP submission in whole or in part, we are required to promulgate a FIP within two years unless we approve a SIP revision correcting the deficiencies before promulgating a FIP. To date, Arkansas has not submitted a SIP revision following our partial disapproval, and EPA is already past-due on its action per the statutory deadlines. In addition, EPA is under an August 31, 2016 court ordered deadline to either finalize a FIP or approve a SIP to address the regional haze requirements and the interstate visibility transport requirements. Therefore, the purpose of our FIP is to correct the deficiencies in the SIP and conduct the required analyses and establish emission limits in accordance with the CAA and the Regional Haze Rule. One of the required analyses we must conduct in this FIP is the consideration of the four statutory factors to determine if additional controls are needed to make reasonable progress. We discuss in a separate response that the reasonable progress requirements under CAA section 169A(g)(1) and our Regional Haze regulations at § 51.308(d)(1) cannot be satisfied by merely being below the URP glidepath and/or meeting the RPGs previously established by the state. The states or EPA in a FIP must conduct an analysis of the four statutory factors regardless of the Class I area's position on the URP glidepath. Based on our consideration of the four statutory factors and of the baseline visibility impacts from Independence and the visibility improvement of potential controls, we determined that reasonable controls for SO
To the extent the commenter believes that we treated the Independence Plant as if it were subject to BART in performing a source-specific reasonable progress analysis, this is incorrect. As we discuss elsewhere in this section of the final rule, individual stationary sources may be subject to source-specific analysis when determining whether additional controls are necessary to make reasonable progress. To the extent the commenter believes that only sources subject to BART can be looked to for emission reductions to promote reasonable progress, this is incorrect. If that were the case, then States, or EPA acting as necessary in the place of a State, would have little to no room for additional progress and even less need for sequential planning periods to build on past progress.
The commenter contends that in our proposed approval of the Kentucky Regional Haze SIP, we approved the state's use of a $2,000/SO
Although the use of a specific threshold for assessing costs means that a state may not fully consider available emissions reduction measures above its threshold that would result in meaningful visibility improvement, EPA believes that the Kentucky SIP still ensures reasonable progress. In proposing to approve Kentucky's reasonable progress analysis, EPA is placing great weight on the fact that there is no indication in the SIP submittal that Kentucky, as a result of using a specific cost effectiveness threshold, rejected potential reasonable progress measures that would have had a meaningful impact on visibility in its Class I area.
It is clear in our proposed approval that we were not approving or otherwise advocating Kentucky's use of a $2,000/SO
North Carolina took a similar approach to that of Kentucky in its SO
Although the use of a specific threshold for assessing costs means that a state may not fully consider available emissions reduction measures above its threshold that would result in meaningful visibility improvement, EPA believes that the North Carolina SIP still ensures reasonable progress. In proposing to approve North Carolina's reasonable progress analysis, EPA is placing great weight on the fact that there is no indication in the SIP submittal that North Carolina, as a result of using a specific cost effectiveness threshold, rejected potential reasonable progress measures that would have had a meaningful impact on visibility in its Class I areas.
As in the case of Kentucky, it is clear that in our proposed approval of North Carolina's reasonable progress determination, we were not approving or otherwise advocating North Carolina's use of that specific cost-effectiveness threshold in the reasonable progress analysis. Therefore, we disagree that our requirement of SO
As a key pollutant, we considered NO
As NO
We disagree that our decision to require NO
[w]hile the cost per ton for SNCR may be reasonable, the projected visibility benefits are relatively small (0.18 dv at the most affected area). The projected visibility benefits of SCR are larger (0.41 dv at the most affected area), but we do not consider them sufficient to warrant the relatively high cost of controls for purposes of RP in this planning period. However, these units should be considered for additional NO
The “relatively high cost” of SCR controls we refer to in that statement is $6,829/ton NO
We agree that we applied the boiler's maximum heat input rating of 820 MMBtu/hr when we calculated our proposed limit of 0.11 lb/MMBtu, and based on information provided by the commenter, we acknowledge that use of the maximum heat input rating is not representative of average (typical) boiler operating conditions. To address the commenter's concern, we are finalizing an SO
We believe it reasonable to set the emission limit using baseline emissions resulting from recent/current fuels. Given that we don't find it appropriate to use emissions from the 2001-2003 period to calculate the SO
To address the potential for a higher NO
Therefore, in this FIP we are requiring White Bluff Units 1 and 2 and Independence Units 1 and 2 to each meet a NO
As such, we are requiring White Bluff Units 1 and 2 and Independence Units 1 and 2 to each meet a NO
We note that we became aware that Power Boiler No. 1 wished to burn only natural gas after the end of the comment period for our proposal, and that the facility has submitted a permit renewal application to ADEQ that will reflect this enforceable change.
We are finalizing our determination that NO
With regard to the request that we include a provision in our FIP that removes all SO
Further, we consider the conditions under which a unit is permanently retired and the mechanism by which this is made enforceable to be critical. Because the company has not decided if and when Power Boiler No. 1 will be permanently retired or decided what the conditions of the retirement will be, we believe that it is reasonable and appropriate to wait until the company makes these decisions instead of including a provision in our FIP that waives the BART recordkeeping requirements in anticipation that the unit's permanent retirement will take place under certain conditions and made enforceable through a particular mechanism that may be different from what ultimately takes place.
We are requiring Power Boiler No. 2 to meet an emission limit of 345 lb/hr to satisfy the NO
We do not have the authority to include in our FIP a provision that removes all SO
Further, we consider the conditions under which a unit is permanently retired and the mechanism by which this is made enforceable to be critical. Because the company has not decided if and when Power Boiler No. 2 will be permanently retired or decided what the conditions of the retirement will be, we believe that it is reasonable and appropriate to wait until the company makes these decisions instead of including a provision in our FIP that waives the BART recordkeeping requirements in anticipation that the unit's permanent retirement will take place under certain conditions and made enforceable through a particular mechanism that may be different from what ultimately takes place.
The CAA and Regional Haze Rule require the installation and operation of BART, in particular, to be carried out expeditiously. The CAA defines the term “as expeditiously as practicable” to mean “as expeditiously as practicable but in no event later than five years after the date of approval of a [Regional Haze] plan revision. . . .”
In determining what is “as expeditiously as practicable” for installation and operation of a particular control technology, the states and EPA
We do note that we are revising some of the compliance dates we proposed in response to source-specific considerations raised in other comments. We address these comments in separate responses.
The commenter has made us aware that the Arkansas PSC has determined that dry scrubber installation at Flint Creek is in the public interest and that the installation of those controls is already underway and anticipated by the company to be complete by May 29, 2016. The commenter also points to the air permit issued to Flint Creek by ADEQ on October 25, 2013, which allows for the installation and operation of new control equipment and associated material handling systems to comply with the requirements of the Utility MATS Rule. These controls include a NID system on Unit 1. The AEP-SWEPCO Web site also indicates that the installation of these scrubber controls is driven by MATS and future Regional Haze rules.
After carefully considering the information the commenter has brought to our attention, we no longer believe that a 5-year compliance date is appropriate for the SO
We address comments contending that we should require SCR controls on White Bluff and Independence elsewhere in this final rule and in our RTC document.
AEP/SWEPCO, which is one of the owners of Flint Creek, also commented on our proposed NO
Additionally, as discussed in a previous response, we agree that LNB/OFA can typically be installed within a 6-8 month timeframe. However, in determining the appropriate compliance date for these NO
The Regional Haze regulations provide generally that “[a] State may opt” to rely on an emissions trading program rather than to require source-specific BART controls.
In its 2008 regional haze SIP submittal, Arkansas decided to not rely on CAIR to satisfy the NO
Our final action on the Arkansas Regional Haze FIP is consistent with our final action on the Texas Regional Haze FIP. Although we proposed to rely on CSAPR to address the NO
As we have noted throughout this document, we are willing to work with ADEQ to develop a SIP revision that could replace our FIP. Such a SIP revision will need to meet the CAA and EPA's Regional Haze regulations. In its SIP revision, ADEQ may elect to rely on CSAPR to satisfy the NO
With regard to the comment that we should not require EGUs that are covered under CSAPR to also install additional emissions controls under reasonable progress analysis, we disagree. In our 2012 finding that CSAPR is better than BART, we stated that states with EGUs covered under CSAPR may rely on CSAPR to satisfy the BART requirement. However, controls under reasonable progress are a separate requirement from BART, and we disagree that states can rely on CSAPR to satisfy the reasonable progress requirements under § 51.308(d)(1). As explained in the 2005 rulemaking addressing reliance on CAIR, our determination that a trading program provides for greater reasonable progress than BART is not a determination that the trading program satisfies all reasonable progress requirements.
We received numerous comments related to the cost analyses we proposed. These comments were received from both industry and environmental groups, and covered all aspects of our cost analyses.
We received comments from industry concerning our proposed scrubber cost analyses that objected to our use of the IPM cost algorithms that Sargent and Lundy (S&L) developed under contract to us. As we discuss in our TSD, we programmed the Spray Dryer Absorber (SDA—a type of dry scrubber), and wet FGD cost algorithms, as employed in version 5.13 of our IPM model, into spreadsheets in our analysis of various aspects of the Entergy White Bluff and Independence scrubber cost analyses.
We received comments relating to our critique of Entergy's White Bluff dry scrubber cost analysis. These primarily involved claims that we (1) improperly escalated Entergy's own cost analyses, (2) improperly excluded costs, (3) under-estimated O&M costs, (4) improperly calculated the SO
We received comments from environmental groups concerning the White Bluff, Independence, and Flint Creek facilities that (1) generally supported our proposed control suite, (2) criticized us in some cases for not proposing stricter control levels, (3) criticized our control cost analyses for being too conservative in some cases and/or containing errors, and (4) criticized us in some cases for not requiring earlier compliance. These groups also generally opposed our BART determination for Lake Catherine Unit 4.
Below we present a summary of our responses to the more significant comments we received that relate to our proposed cost analyses.
We disagree that our cost estimates were not in keeping with the Control Cost Manual. As we stated in our TSD Appendix A, we relied on the methods and principles contained within the Control Cost Manual, namely the use of the overnight costing method. In fact, the Control Cost Manual does not include any method for estimating the costs specific to any of the SO
Entergy did not provide its updated 2015 cost estimate, which it references in its comment, until after our proposal. Entergy's 2015 report uses updated 2013 pricing from Alstom as its basis. As we discuss in our RTC, we reviewed this 2015 cost analysis and found that it presents problems that prevent us from using it, primarily because it is undocumented.
In this comment, Entergy attempts to use its newly submitted 2015 cost analysis to discredit the escalation technique we employed to adjust its previous 2013 cost analysis. It does so without even presenting the 2013 Alstom quote on which it states the 2015 cost estimate relies. Thus, we have no basis to conclude that the costs Entergy presents in its first table above even cover the same scope of work. This is an important consideration and a different scope can cause a significant difference in cost. Entergy itself noted this when it used a revised BOP estimate to adjust its 2009 Alstom quote because the scope had changed. Even different cost estimates received in the same year can result in significantly different totals. For instance, as we also note in our TSD, Entergy stated that it received two different SDA cost estimates for White Bluff: An early 2009 S&L estimate with a total contractor cost of $291,930,000, and a December 2009 estimate from Alstom of $247,856,184.
Escalation from one year's cost basis to another
Entergy also apparently objects to any escalation technique that results in a reduction in a future year's cost basis, holding it up as evidence of our error.
Entergy states that our cost calculations ignored the updated 2012 direct annual costs provided by Entergy, and instead included the 2008 costs. As noted in the first sentence of our response to this comment, we were constrained to use Entergy's revised BART analysis for the White Bluff facility, as submitted by Entergy on October 14, 2013 (hereafter referred to as the “2013 SDA Cost Analysis”). These costs employed a 2008 vintage total direct annual cost, as we indicate in Appendix A of our TSD.
In Appendix A to our TSD, we noted that Entergy used BOP costs from a 2008 S&L quote to supplement its adjusted 2009 Alstom quote in its 2013 SDA cost analysis for the White Bluff BART determination. However, due to a lack of documentation, it appeared that a number of items were either not appropriate for a SO
We do agree that Entergy has provided documentation for other costs, including demonstrating that recalibration of the CEMS and painting of the chimney are justified, and we have adjusted our White Bluff scrubber cost analysis accordingly. Other costs that were calculated as percentages of the equipment, material, and labor costs were similarly adjusted. We have revised our cost analysis to include these adjustments, and have determined that dry scrubbers are estimated to cost $2,565/SO
How do I calculate baseline emissions?
1. The baseline emissions rate should represent a realistic depiction of anticipated annual emissions for the source. In general, for the existing sources subject to BART, you will estimate the anticipated annual emissions based upon actual emissions from a baseline period.
2. When you project that future operating parameters (
Regarding the baseline used in our Independence reasonable progress analysis, our 2007 Reasonable Progress Guidance notes the similarity between some of the reasonable progress factors and the BART factors contained in § 51.308(e)(1)((ii)(A), and suggests that the BART Guidelines be consulted regarding cost, energy and nonair quality environmental impacts, and remaining useful life.
The difference between our baseline calculations and any of the alternative procedures S&L outlines is small and would not change our conclusions for the White Bluff BART determinations and the Independence reasonable progress determinations.
The White Bluff and Independence facilities are sister facilities. According to EIA,
We further presented satellite photographs to demonstrate that the layout of these facilities are extremely similar. We consequently expect that the differences Entergy describes in its comments result in minor differences in the cost to install and operate scrubbers. As we have discussed in our response to another comment, the Control Cost Manual explains that the sole input required for making an “order of magnitude” estimate is the control
In apparent agreement with our basic approach, Entergy recalculates its variable and fixed O&M costs on the basis of 0.68 lb/MMBtu fuel sulfur levels. We note that our own variable and fixed O&M costs are actually greater, adding to the conservativeness of our calculation. To illustrate the small difference in capital costs associated with the revised design basis (1.2 lb/MMBtu versus 0.68 lb/MMBtu), Entergy then performs a sensitivity analysis and concedes there is a “small difference in capital costs associated with the revised design basis (1.2 lb/MMBtu versus 0.68 lb/MMBtu). . . .” This conclusion is borne out by our own figures, which indicate there is a small difference in capital costs to even the 2.0 lbs/MMBtu case; the capital, engineering and construction costs, which cover the fundamental design parameter of a scrubber—gas flow rate—were only changed by less than 5%. In sum, Entergy's assertion that our cost analysis improperly designed the White Bluff scrubber system is without merit and would make an insignificant difference in the final outcome.
Lastly, we agree with Entergy that we misapplied a correction factor to our total direct and indirect costs. We incorporate that correction in our final SDA cost analysis for the White Bluff and Independence facilities, which we discuss in more detail in our response to other comments. This correction has a relatively minor impact on the overall cost analysis.
The Sierra Club's consultant performed a cost analysis of dry and wet scrubber systems, including Alstom's NID circulating dry scrubber, and concluded that our White Bluff scrubber cost analysis was conservative, that scrubbers are cost effective compared to controls required pursuant to other BART determinations, and that we should have required compliance in 3 years instead of 5 years.
We agree that the Alstom NID circulating dry scrubber is a promising SO
After addressing all comments from Entergy and the Sierra Club concerning our White Bluff and Independence scrubber cost analyses, we made several minor corrections.
We find that these revised cost-effectiveness calculations do not change our proposed findings for BART and reasonable progress for these units.
In addition, we have examined the effect of adding back in a number of the BOP and other costs we excluded (based on these costs being either disallowed by the Control Cost Manual, or having lacked documentation from Entergy). This exercise also appears in the file “White Bluff_R6 cost revisions2-revised.xlsx.” These costs include:
• BOP Costs associated with the reagent prep enclosure and the reagent handling system, totaling $21,229,000.
• BOP Costs associated with the flue gas system ductwork, totaling $1,754,000.
• BOP indirect costs of $8,474,666 (escalated to 2013).
• Miscellaneous contract labor costs of $4,448,074 (escalated to 2013).
• Entergy internal costs of $19,482,518 (escalated to 2013).
• Capital suspense costs of $8,101,226 (escalated to 2013).
We continue to believe that these costs are either disallowed by the Control Cost Manual, or are properly disallowed because they lack documentation from Entergy. We have presented this information to indicate that these disallowed costs have a relatively minor effect on the final cost effectiveness. Although our final decision regarding BART and reasonable progress for the White Bluff and Independence units does not rest upon these cost-effectiveness calculations that include the disallowed costs, had our final decision rested on these cost-effectiveness calculations, we would have reached the same conclusions regarding BART and reasonable progress for these units.
We extensively analyzed the performance potential of wet scrubbers in our recent Texas-Oklahoma FIP.
Regarding the Sierra Club's consultant's SCR control cost analysis, we do not believe that a NO
We agree that the Lake Catherine Unit 4 historical capacity has sometimes exceeded the 10% capacity Entergy has assumed in its control cost analyses. However, the average from the last ten years of data (2006 to 2015) has been 4.4%. Typically, we place the most emphasis on the last five years of data, and our recent practice has been to discard the high and low values and average the remaining three years.
Oklahoma first suggests EPA should not have rejected the visibility analysis it conducted in the SIP, which used the dollar-per-deciview method. This argument is misguided. The EPA rejected the SIP because of the flawed cost estimates. When promulgating its own implementation plan, it did not need to use the same metric as Oklahoma. The guidelines merely permit the BART-determining authority to use dollar per deciview as an optional method of evaluating cost effectiveness.
We see no reason to deviate from our view of the $/deciview metric here.
The commenters also suggest that the use of a “total dv” metric is inconsistent with BART guidelines (40 CFR part 51 Appendix Y, IV.D.5) that state it is appropriate to model impacts at the nearest Class I area as well as other nearby Class I areas to determine where the impacts are greatest. Modeling at other Class I areas may be unwarranted if the highest modeled effects are observed at the nearest Class I area. The commenters claim the analysis should be focused on the visibility impacts at the most impacted area, not all areas. Other commenters supported the use of the cumulative visibility metric, stating that it is appropriate and lawful, and within the spirit of the statutory mandate and expressly permissible within the regulation to consider cumulative impacts.
The comment opposing cumulative modeling does not provide the full context when citing to the BART guidelines. The portion referred to by the commenter discusses the development of a modeling protocol and establishing the receptors to model. The full portion of the BART Guidelines that the commenter referenced states:
The receptors that you use should be located in the nearest Class I area with sufficient density to identify the likely visibility effects of the source. For other Class I areas in relatively close proximity to a BART-eligible source, you may model a few strategic receptors to determine whether effects at those areas may be greater than at the nearest Class I area. For example, you might chose to locate receptors at these areas at the closest point to the source, at the highest and lowest elevation in the Class I area, at the IMPROVE monitor, and at the approximate expected plume release height. If the highest modeled effects are observed at the nearest Class I area, you may choose not to analyze the other Class I areas any further as additional analyses might be unwarranted.
This section of the BART Guidelines addresses how to determine visibility impacts as part of the BART determination. Several paragraphs later in the BART Guidelines it states: “You have flexibility to assess visibility improvements due to BART controls by one or more methods. You may consider the frequency, magnitude, and duration components of impairment,” emphasizing the flexibility in method and metrics that exists in assessing the net visibility improvement.
In fully considering the visibility benefits anticipated from the use of an available control technology as one of the factors in selection of BART, it is appropriate to account for visibility benefits across all affected Class I areas and the BART guidelines provide the flexibility to do so. One approach as noted above is to qualitatively consider, for example, the frequency, magnitude, and duration of impairment at each and all affected Class I areas. Where a source significantly impacts more than one Class I areas, the cumulative visibility metric is one way to take magnitude of the impacts of the source into account.
With respect to our analysis of controls under reasonable progress, we rely on our Reasonable Progress Guidance.
Also, similar to a BART analysis, we are also considering the projected visibility benefit in our analysis following the BART guidelines and the use of CALPUFF.
For each subject-to-BART source and the source evaluated for reasonable progress controls, we evaluated the visibility impacts from the source and benefits of controls at four separate Class I areas. In addition to providing the visibility impacts and potential benefits at each Class I area in the proposal, we also summed the impact and improvement across the four Class I areas. The results show that some sources significantly impact visibility at more than one Class I area, emission reductions result in visibility benefits at all impacted class I areas, and in some situations, the largest visibility benefits from controls can occur at Class I areas other than the most impacted.
Therefore, consistent with the BART Guidelines, and based upon these facts, we determined additional analyses were not only warranted but necessary. The BART Guidelines only indicate that additional analyses may be unwarranted at other Class I areas, and in no way exclude such analyses, as the commenter suggests. We concluded that a quantitative analysis of visibility impacts and benefits at only the most impacted area would not be sufficient to fully assess the impacts and benefits of controlling emissions from the sources evaluated for BART and reasonable progress.
Nothing in the Regional Haze Rule suggests that a state (or EPA in issuing a FIP) should ignore the full extent of the visibility impacts and improvements from controls at multiple Class I areas. Given that the national goal of the program is to improve visibility at
Commenters also state that the EPA may not require a source “to spend millions of dollars for new technology that will have no appreciable effect on haze in any Class I area.”
Even though the visibility improvement from an individual source may not be perceptible, it should still be considered in setting BART because the contribution to haze may be significant relative to other source contributions in the Class I area. Thus, we disagree that the degree of improvement should be contingent upon perceptibility. Failing to consider less-than-perceptible contributions to visibility impairment would ignore the CAA's intent to have BART requirements apply to sources that contribute to, as well as cause, such impairment.
Section 169A of the CAA requires that certain major sources that emit any pollutant which may reasonably be anticipated to cause or contribute to visibility impairment in Class I Areas install BART. The following factors must be taken into account in determining BART: The costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.
The CAA also requires that in determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compliance, the energy and nonair
We accordingly disagree that selection of control measures under BART or for reasonable progress should be contingent upon perceptible visibility improvement. As we stated in our previous rulemaking addressing the BART determinations in Oklahoma:
Given that sources are subject to BART based on a contribution threshold of no greater than 0.5 deciviews, it would be inconsistent to automatically rule out additional controls where the improvement in visibility may be less than 1.0 deciview or even 0.5 deciviews. A perceptible visibility improvement is not a requirement of the BART determination because visibility improvements that are not perceptible may still be determined to be significant.
The Regional Haze Rule provides that BART-eligible sources with a 0.5 dv impact at a Class I area “contribute” to visibility impairment and must be analyzed for BART controls. BART determining authorities, however, are free to establish thresholds less than 0.5 dv. Consequently, even though the visibility improvement from controlling an individual source may not be perceptible, it should still be considered because the contribution to haze may be significant when the aggregate contribution of other sources in the Class I area is taken into account and because the contribution to haze from the source may be significant relative to other source contributions in the Class I area. Thus, in our visibility improvement analysis for BART sources and in consideration of visibility benefits from controls under our reasonable progress analysis, we have not considered perceptibility as a threshold criterion for considering improvements in visibility to be meaningful.
We have considered visibility improvement in a holistic manner, taking into account all reasonably anticipated improvements in visibility, and the fact that, in the aggregate, improvements from controls on multiple sources (either under BART or reasonable progress) will contribute to visibility progress towards the goal of natural visibility conditions. Visibility impacts below the thresholds of perceptibility cannot be ignored because regional haze is produced by a multitude of sources and activities which are located across a broad geographic area. In this action, we found that the required cost-effective controls reduce visibility impairment from those BART sources that contribute or cause visibility impairment at nearby Class I areas and result in meaningful visibility benefits towards the goal of natural visibility conditions. Similarly, we also found that the required cost-effective controls at the Entergy Independence facility reduce visibility impairment from the source with the largest potential visibility impacts (among all Non-BART sources) and result in meaningful visibility benefits towards the goal of natural visibility conditions.
The commenter mischaracterizes a statement made by the D.C. Circuit Court of Appeals in
The Court disagreed with the approach used by EPA to determine what BART eligible sources are reasonably anticipated to cause or contribute to regional haze and therefore subject to BART.
Our analysis does not give greater weight to one factor over another; rather, we considered all five BART factors fully, revealing that the cost and visibility factors were the two most important factors in our decisions. In
The Court also noted that it is the State's and not EPA's duty to determine what BART is (provided that the State's determination complies with the Act and EPA guidelines.
We also disagree with commenter's statement that we required emissions reductions just for the sake of doing so under the guise of imperceptible visibility improvements or solely for the sake of reducing emissions. As discussed above, we considered all the statutory factors, including the “degree of improvement in visibility which may reasonably be anticipated to result from the use of such [best available retrofit] technology” in our BART determinations. We do not consider perceptibility as a threshold criterion for considering improvements in visibility to be meaningful. Failing to consider less-than-perceptible contributions to visibility impairment would ignore the CAA's intent to have BART requirements apply to sources that contribute to, as well as cause, such impairment.
EPA used CALPUFF and did not perform refined, multi-state modeling to determine the amount of visibility improvements that would be achieved through the installation of controls because it would be difficult, time-consuming, and expensive. Instead, the Agency took a “thumbnail” approach in an attempt to justify the proposed controls based on how long it would take to achieve background levels.
EPA recognized in their action on Texas regional haze that CAMx, a photochemical transport 3-dimensional grid model, is a more appropriate modeling tool for reasonable progress purposes.
The draft
Notably, EPA recently issued a proposal, which would remove CALPUFF from EPA's preferred list of air dispersion models in its
EPA's
Another commenter, EarthJustice, states that the other commenter's assessment of the methodology used for Texas sources is incorrect. In fact, EPA also used an emission “scaling” approach to determine the effects of various control scenarios for their evaluation of Texas sources that is
The 2005 BART Guidelines recommended the use of CALPUFF for assessing visibility (secondary chemical impacts) but noted that CALPUFF's chemistry was fairly simple. The visibility results from CALPUFF could be used as one of the five factors in a BART evaluation and the impacts should be utilized in a somewhat relative sense because CALPUFF was not explicitly approved for full chemistry calculations.
Under the BART guidelines, CALPUFF should be used as a screening tool and appropriate consultation with the reviewing authority is required to use CALPUFF in a BART determination as part of a SIP or FIP. The BART Guideline cited and referred to EPA's Guideline on Air Quality Models (Appendix W)
We and some states have used CALPUFF to model visibility benefits as part of the reasonable progress analysis, and have used largely the same methodology as in BART modeling (
Consistent with the examples discussed above,
As we discuss elsewhere in this final rule, Entergy submitted CAMx model results as part of their comments. The modeled contribution to visibility impairment due to baseline emissions from the Independence facility alone were approximately 1.3% of the total visibility impairment at each Arkansas Class I area. In terms of deciviews, the average impact over the 20% worst days based on Entergy's CAMx modeling (adjusting to natural background conditions) is over 0.5 dv at the Arkansas Class I areas and even larger at the Class I areas in Missouri. These results estimate the visibility impacts from the source on the 20% worst days and confirm and provide additional support to our determination that Independence significantly impacts visibility, both in terms of maximum visibility impairment and visibility impairment on the 20% worst days, and that emissions controls provide for meaningful visibility benefits towards the goal of natural visibility conditions. In conclusion, both approaches, CALPUFF and CAMx, support the determination that the required controls are reasonable.
The commenter cites the BART guidelines and asserts that EPA recognizes that the CALPUFF model is overly simplistic and overstates the effect of single-source emissions. This is not an accurate characterization. EPA recognized the uncertainty in the CALPUFF modeling results when EPA made the decision, in the final BART Guidelines, to recommend that the model be used to estimate the 98th percentile visibility impairment rather than the highest daily impact value. We made the decision to consider the less conservative 98th percentile primarily because the chemistry modules in the CALPUFF model are simplified and likely to provide conservative (higher) results for peak impacts. Since CALPUFF's simplified chemistry could lead to model over predictions and thus be conservative, EPA decided to use the less conservative 98th percentile.
With regard to comments concerning the draft
The commenters cite to the proposed revisions to the Guideline on Air Quality Models (Appendix W)
The IWAQM Phase 3 modeling report
We address comments concerning the contribution to visibility impairment from Arkansas point sources and the benefit of controls on Independence on Arkansas Class I areas elsewhere. We find that the contribution to visibility impairment from Arkansas point sources to be significant and that controls on Independence will result in meaningful visibility improvements towards the goal of natural visibility conditions and addresses a significant portion of the visibility impairment due to Arkansas sources.
It is inappropriate to utilize CALPUFF as a screening tool to qualify a source as subject to BART and subsequently use it to determine a facility's required implementation of a control technology at a significant financial cost. EPA in its final regional haze rules stated that “because of the scale of the predicted impacts from these sources, CALPUFF is an appropriate or a reasonable application to determine whether such a facility can reasonably be anticipated to cause or contribute to any impairment of visibility. In other words, to find that a source with a predicted maximum impact greater than 2 to 3 deciviews meets the contribution threshold adopted by the States does not require the degree of certainty in the results of the model that might be required for other regulatory purposes.”
EPA's visibility analysis in the Proposed FIP systematically overstates both the baseline visibility impacts of White Bluff, Flint Creek and Independence, and the visibility benefits that would result from installation of EPA's required controls.
EPA's admission that CALPUFF is a reasonable tool to evaluate a facility's visibility impacts only if those impacts exceed 2 to 3 deciviews, combined with the inability of the model to make accurate determinations below the 1 deciview threshold of perceptibility, discredits the results of the visibility analyses in the Proposed FIP. For these reasons, EPA has not adequately explained how the baseline and subsequent controlled visibility analyses in the Proposed FIP justify the selected control technologies.
CALPUFF is the best modeling application available for predicting a single source's contribution to visibility impairment. It is the only EPA-approved model for use in estimating single source pollutant concentrations resulting from the long range transport of primary pollutants. In addition, it can also be used for some purposes, such as the visibility assessments addressed in today's rule, to account for the chemical transformation of SO
The use of CALPUFF in the context of the Regional Haze rule provides results that can be used in a relative manner and are only one factor in the overall BART determination. We determined the visibility results from CALPUFF could be used as one of the five factors in a BART evaluation and the impacts should be utilized somewhat in a relative sense because CALPUFF was not explicitly approved for full chemistry calculations.
EPA's modeling in this action was consistent with the BART Guidelines and Appendix W. In recommending the use of CALPUFF for assessing source specific visibility impacts, EPA recognized that the model had certain limitations but concluded that “[f]or purposes of the regional haze rule's BART provisions . . . CALPUFF is sufficiently reliable to inform the decision-making process.”
The commenters also refer to the 2005 Rule where we discuss the use of CALPUFF as a screening tool to qualify a source as subject to BART
With respect to our analysis of controls under reasonable progress, we rely on our Reasonable Progress Guidance.
Also, similar to a BART analysis, we are considering the projected visibility benefit in our reasonable progress analysis following the BART guidelines and the use of CALPUFF.
We also disagree with the commenters conclusions concerning CALPUFF model performance and assertions that model predictions are overestimated by a factor of 5. We note that our regulations do not allow for the calibration of model results to try to adjust for potential biases as suggested by the commenter.
As discussed more fully in the RTC document, the CALPUFF model can both under-predict and over-predict visibility impacts. While recognizing the limitations of the CALPUFF model in the Preamble of the Regional Haze Rule EPA concluded that, for the specific purposes of the Regional Haze Rule's BART provisions, CALPUFF is sufficiently reliable to inform the decision making process.
We disagree with the commenter's assertion that we were incorrect in not utilizing the puff-splitting option
The commenter refers to the Hoffnagle report (Ex. 19 of Nucor comments) to support claims that the CALPUFF model overpredicts concentrations, that the model is unreliable beyond 200km, and that the modeling is not sufficiently accurate to make determinations of deciview differences of 1 dv. We disagree with the conclusions of the Hoffnagle report and note significant flaws in that analysis. We also note that all the large EGU sources modeled in this action are less than 200 km for at least one Class I area. We specifically address Hoffnagle's analysis of modeled to measured results in response to comments elsewhere where we address comments concerning the “margin of error” of the model and case study comparisons of CALPUFF modeled values to measured values.
We disagree with the commenter that the model we utilized is outdated. We used the regulatory version of the CALPUFF model.
The commenters also refer to the proposed revisions to the Guideline on Air Quality Models (Appendix W). Proposed revisions to Appendix W discuss removing the requirement to use CALPUFF for long-range transport assessments and as a preferred model due to the need to provide flexibility in estimating single-source secondary pollutant impacts and concerns about management and maintenance of the CALPUFF modeling code.
Finally, the CAMx modeling provided by Entergy Arkansas provides additional information that directly contradicts the commenter's assertion that CALPUFF greatly overestimates visibility impacts by at least a factor of 5. As we discuss elsewhere in this final rule, the CAMx visibility modeling estimates a maximum visibility impact (limited to only the days comprising the 20% worst days and based on annual emissions) of over 1.5 dv from the Independence facility at both Caney Creek and Upper Buffalo. For the White Bluff facility, the CAMx maximum visibility impact is approximately 3.5 dv at Caney Creek and 0.8 dv at Upper Buffalo. In some situations, the CALPUFF modeled maximum or 98th percentile impacts of the facility may not coincide with the days that make up the worst 20% monitored days at the Class I area, therefore the true maximum impact considering all days based on CAMx modeling could be even higher. This compares to a CALPUFF modeled visibility 98th percentile impact (based on maximum emissions) due to the Independence facility of 2.5 dv at Caney Creek and 2.3 at Upper Buffalo. For White Bluff, the CALPUFF modeled impact (98th percentile) is approximately 3.3 dv at Caney Creek and 2.3 dv at Upper Buffalo.
We address more general comments concerning the use of CALPUFF modeling and model uncertainty in separate response to comments.
The CAA does not require visibility improvements that cannot be reasonably anticipated. Conversely, visibility improvements that are less than the margin of error were expressly found to be invalid. Until such time as EPA can provide assurance that the CALPUFF model is a reliable indicator of visibility projections, many of the numerical projections contained in the Proposed FIP are themselves, unreliable. For this reason, the Proposed FIP is flawed and is overly expansive and should be withdrawn.
In response to the court's finding in
In promulgating the 2005 BART guidelines, we responded to comments concerning the limitations and
CALPUFF is the best modeling application available for predicting a single source's contribution to visibility impairment. It is the only EPA-approved model for use in estimating single source pollutant concentrations resulting from the long range transport of primary pollutants. In addition, it can also be used for some purposes, such as the visibility assessments addressed in today's rule, to account for the chemical transformation of SO
In the 2003 revisions to the Guideline on Air Quality Models, CALPUFF was added as an approved model for long-range transport of primary pollutants. At that time, we considered approving CALPUFF for assessing the impact from secondary pollutants but determined that it was not appropriate in the context of a PSD review because the impact results could be used as the sole determinant in denying a permit.
We also recognized the uncertainty in the CALPUFF modeling results when we made the decision, in the final BART Guidelines, to recommend that the model be used to estimate the 98th percentile visibility impairment rather than the highest daily impact value. We made the decision to consider the less conservative 98th percentile primarily because the chemistry modules in the CALPUFF model are simplified and likely to provide conservative (higher) results for peak impacts. Since CALPUFF's simplified chemistry could lead to model over predictions and thus be conservative, EPA decided to use the less conservative 98th percentile.
We disagree with the commenter's general statement that there is an acknowledged over-prediction of the CALPUFF model or an acknowledged inaccuracy at low levels, and that the actual visibility impacts from the BART sources are lower. The CALPUFF model can both under-predict and over-predict visibility impacts when compared to photochemical grid model. For example, the 2012 ENVIRON report on
The CALPUFF modeling following the BART guidelines and using the 98th percentile value does not lend itself to model performance evaluations of the type suggested by the commenters (see comments below concerning the “Margin of error” analysis), comparing measured visibility impairment at a specific time and place to modeled impairment at that same time and place to derive some “margin of error” in the modeled estimates. The BART modeling is a worst case assessment, utilizing maximum emissions,
CALPUFF uses a pseudo-first-order chemical reaction mechanism to model the conversion of SO
The utility of the model used must be judged based on the available data, the known limitations or simplifications inherent to the model, and the purpose of the modeling or manner in which the model results are used in informing decisions. The use of the 98th percentile value and considering a minimum of three years of meteorological data within CALPUFF provides a snapshot of the worst case visibility impacts, simulating impacts (based on maximum emissions and assumed ammonia concentrations) on a day when modeled meteorological conditions are most conducive to formation and transport of visibility impairing pollutants to a receptor within a Class I area. While there is some uncertainty in the absolute visibility impacts and benefits due to the model and some of the simplifications and assumptions used in the BART guideline modeling approach, the relative level of impact is a reliable assessment of the degree of visibility impacts and benefit from controls. Any uncertainties in meteorological conditions that govern the transport and diffusion of pollutants are less important in comparing impacts between two control scenarios, since the same effects will be included in both the base and the control scenario model simulations. CALPUFF modeling will be better at predicting changes in visibility impairment due to the application of controls than at predicting the absolute visibility impacts. BART determinations are only made for sources that have already been shown to reasonably be anticipated to cause or contribute to any visibility impairment in a Class I area. Modeling of control scenarios is used to estimate the amount that this visibility impact can be reduced due to a reduction in emissions. The modeling of these control scenarios is done in a manner that holds all variables constant except for the emissions of the pollutant of interest. A relative reduction in visibility impact due to a change in emissions is an indication that visibility benefits are reasonably anticipated to occur. The modeled magnitude of the visibility improvement is not a determinative factor in the BART determination, but only one factor and is considered on a relative basis to the baseline impact and the benefits of other controls. The relative visibility benefit of all controls is weighed along with the absolute and relative costs of controls, energy and nonair environmental impacts, any existing controls, and the remaining useful life of the source. As stated above, we are confident that CALPUFF distinguishes, comparatively, the relative contributions from sources such that the differences in source configurations, sizes, emission rates, and visibility impacts are well-reflected in the model results.
CALPUFF visibility modeling, performed using the regulatory CALPUFF model version and following all applicable guidance and EPA/FLM recommendations, provides a consistent tool for comparison with the 0.5 dv subject-to-BART threshold. The CALPUFF model, as recommended in the BART guidelines, has been used for almost every single-source BART analysis in the country and has provided a consistent basis for assessing the degree of visibility benefit anticipated from controls as one of the factors under consideration in a five-factor BART analysis. Since almost all states have completed their BART analyses and have either approved SIPs or FIPs in place, there is a large set of available data on modeled visibility impacts and benefits, and how those model results were utilized to screen out sources and as part of the five-factor analysis in making BART control determinations for comparison with.
In its analysis, the pre-BART impact from Lake Catherine Unit 4 at Caney Creek and Upper Buffalo is inconsequential when compared with the IMPROVE measurements, which capture the impact of all other sources, including Lake Catherine, on the Class I areas.
The proposed NO
These analyses include a discussion of work performed by TRC Environmental Corporation, including a June 2012 paper prepared by Gale Hoffnagle that discusses several case studies that compared CALPUFF modeled values to measured values from the IMPROVE monitoring network.
The Trinity analysis
We respond to specific comments concerning each separate case study in our RTC document.
Entergy stated that EPA's own analysis counsels against imposing emission limits on Independence. EPA asserts that CENRAP modeling shows that sulfate from
Entergy's CAMx modeling confirms that Independence's contribution to visibility impairment is insignificant in both Class I areas. Independence is projected to contribute to only 0.119 dv of visibility impairment at Caney Creek and Upper Buffalo on W20 days in 2018.
We disagree with the commenter that the CAMx modeling submitted by the commenter confirms that contributions to visibility impairment from the Independence facility are insignificant. When properly assessed, as detailed in the RTC document, the commenter's CAMx modeling supports and reinforces our finding that visibility impairment from Entergy Independence is significant and emission reductions will result in meaningful visibility benefits towards the goal of natural visibility conditions. Entergy's CAMx modeling shows a visibility impact of 0.12 dv at both Caney Creek and Upper Buffalo when compared to 2018 “dirty” or “degraded” background conditions. The commenter then calculates that this 0.12 dv impact is 0.5% of the total 23 dv visibility impairment. As discussed in the RTC document, the deciview scale is a logarithmic function of extinction, and therefore the calculations by the commenter are incorrect because they are based on deciview values and must be performed based on light extinction to properly calculate the percent contribution to visibility impairment. Spreadsheets submitted by the commenter present the light extinction attributable to each source (in inverse megameters) based on the results of their CAMx source apportionment modeling and calculate the percent contribution to total visibility impairment at each Class I area.
Furthermore, the deciview visibility impacts for individual sources should be assessed based on natural “clean” background visibility conditions. The deciview improvement based on the 2018 background conditions provides an estimate of the amount of benefit that can be anticipated in 2018 and the impact a control/emission reduction may have on the established RPG for 2018. However, this estimate based on degraded or “dirty” background conditions underestimates the visibility improvement that would be realized for the control options under consideration. The source impacts and the potential benefits of controls must be considered relative to a light extinction level that represents a clean/natural background, rather than the current visibility conditions or projected visibility conditions at the end of the planning period.
Using existing conditions as the baseline for single source visibility impact determinations would create the following paradox: The dirtier the existing air, the less likely it would be that any control is required. This is true because of the nonlinear nature of visibility impairment. In other words, as a Class I area becomes more polluted, any individual source's contribution to changes in impairment becomes geometrically less. Therefore the more polluted the Class I area would become, the less control would seem to be needed from an individual source. . . . Such a reading would render the visibility provisions meaningless, as EPA and the States would be prevented from assuring “reasonable progress” and fulfilling the statutorily-defined goals of the visibility program. Conversely, measuring improvement against clean conditions would ensure reasonable progress toward those clean conditions.
The same logic applies to the evaluation of visibility impacts and benefits for sources examined for controls for reasonable progress. Accordingly, the EPA has used clean background conditions in evaluating the benefits of controls on individual reasonable progress sources and has disapproved reasonable progress decisions by states that relied on modeling employing dirty background conditions.
We note that while CALPUFF results are not directly comparable to CAMx model results due to differences in metrics, models and model inputs,
We recalculated the average modeled visibility impact for the 20% worst days based on the commenter's CAMx modeled average visibility impact for the 20% worst days using a clean background approach (using annual average natural conditions background).
For SO
With respect to the anticipated visibility improvement due to SO
Furthermore, as discussed elsewhere throughout this final rule, results of Entergy Arkansas' CAMx modeling with source apportionment provide additional support that the Independence facility has significant impacts on visibility at nearby Class I areas on the 20% worst days and that controlling these units would result in significant visibility benefits towards the goal of natural visibility conditions. We address comments concerning the consideration of cumulative visibility benefits and imperceptible visibility benefits elsewhere.
Based on CALPUFF modeling, EPA's proposed BART limits will result in projected combined visibility benefits of approximately 4.3 dv at Caney Creek. Based on Entergy's statistical projection of the haze index in Caney Creek, that would result in a haze index of 15.76 dv, which would put Caney Creek closer to natural background levels than the glide path. The URP would not reach that haze level until approximately 2048.
If EPA insists on relying on CALPUFF to evaluate the projected visibility benefits of requiring controls on Independence, it must be consistent and use CALPUFF to evaluate the need for such controls for purposes of demonstrating reasonable progress. As demonstrated in Figures 11 and 12, controls at Independence cannot be justified for reasonable progress based on the CALPUFF results, which predict an improvement of several deciviews solely from BART controls.
First, the commenter incorrectly estimates that the impact from sulfate point source emissions in Arkansas is 0.81-0.86 dv. Because the deciview metric is a logarithmic function of extinction, the percent extinction cannot be directly applied to the total deciview impairment. Recalculating the impact from sulfate point sources to correct for this error yields approximately a 0.32 dv impact based on a “dirty” background 2018 projected visibility conditions and 0.92 dv based on a natural background approach.
Second, 0.92 dv represents the estimated deciview improvement from eliminating sulfate emissions at all point sources in Arkansas (based on typical or average emissions) on average across the 20% worst days, as defined by the 20% worst days of monitored visibility at Caney Creek. This CAMx derived value is not directly comparable to the CALPUFF modeled 1.952 dv improvement from controls on both units at Independence, due to differences in models, model inputs and metrics. CALPUFF modeling following the BART guidelines and recommended protocol provides an estimate of the maximum (98th percentile) visibility benefit based on 24-hr maximum actual emissions modeled over a period of three years. The CAMx modeling results presented by the commenter represent the average visibility impacts over the 20% worst days (as defined by monitored data) based on modeling actual emissions levels. In addition, CALPUFF uses an estimated constant background ammonia level and does not account for the competition for ammonia due to emissions from other sources. A maximum value of 1.952 dv for visibility benefits of controlling Independence based on CALPUFF modeling is not inconsistent with an estimated 0.92 dv impact from all sulfate point source emissions averaged over the 20% worst days. In general, the maximum value could be several times larger than the average over the 20% worst days (representing the average visibility over the 73 days, or 24 monitored days with the worst visibility). Furthermore, the maximum value as modeled by CALPUFF is based on maximum 24-hr emissions, which may be much higher than the average emissions. As discussed in a separate response to comment above, CAMx modeling using source apportionment provided by the commenter (Entergy) modeled a facility-wide impact from Entergy Independence of 1.64 dv on the maximum day within the subset of days that make up the 20% worst days. The maximum modeled impact across the full 365 days modeled could be much larger. Furthermore, this modeling is based on actual emissions and not maximum 24-hr emissions as modeled by CALPUFF. Therefore, the 1.952 dv visibility benefit estimated by CALPUFF is not “impossible” and is in fact in line with the visibility impacts estimated using the CAMx model as supplied by the commenter.
Third, the commenter is incorrect in estimating a 4.3 dv improvement from all BART controls and using this value to adjust projected visibility conditions
This demonstrates the illogic of relying on CALPUFF for reasonable progress. Independence's contribution to the deciview improvements EPA projects based on the CENRAP modeling would be much less than the total deciview improvement at Caney Creek of 0.21 dv from the installation of controls at all of the proposed FIP sources and 0.19 dv at Upper Buffalo would not be perceptible to the human eye; nowhere close to the 1.95 dv and 1.78 dv improvement that EPA is claiming based on CALPUFF. Requiring imperceptible visibility improvements is simply unreasonable. The CAA requires only “reasonable progress, not the
With regard to the quote the commenter reproduced from the Eighth Circuit Court's decision in
We interpret the Court's statement as meaning broadly that just because a more stringent level of control could be technically feasible in a particular instance, it does not mean it necessarily must be required under reasonable progress. We see no conflict with this determination and our proposed Arkansas FIP and requiring controls that may not result in perceptible visibility improvements. In North Dakota's case, we noted technical flaws in North Dakota's analysis, and we noted that we could have reached a different conclusion had we conducted the analysis ourselves, but we ultimately determined these issues did not prevent us from accepting North Dakota's reasonable progress determination. The Court did not find that our conclusions on the issue were arbitrary, stating in part that, “[e]ven if [the control in question] were perhaps the most reasonable technology available, the CAA requires only that a state establish reasonable progress, not the most reasonable progress. In contrast, and as explained in greater detail elsewhere, in our 2012 rulemaking,
Entergy's proposal achieves less visibility benefit than the FIP controls at Arkansas' Class I areas, most significantly at Upper Buffalo where the benefit from Entergy's proposal is approximately only 63% of the benefit from the FIP (1.54 Mm
We also disagree with the commenter's use of the results of their ranked statistical analysis (the “projected haze index” shown in the Entergy Arkansas Inc.'s submitted comments in figures 13 and 14) as the starting point for calculating the overall visibility benefits from the FIP or the commenter's proposed alternative. As discussed elsewhere in this section of the final rule, the ranked statistical analysis is simply a projection of future visibility conditions based on past improvement and is not directly tied to any additional required emission reductions in the next few years that would result in this future visibility improvement from current conditions to this projected value in 2018.
For Caney Creek and Upper Buffalo, respectively, the observed values are well below the glide path with a consistent downward trend in the observations. This downward trend is consistent with the historical (2002-2011) trend in decreasing sulfur dioxide (SO
In order to statistically calculate the future deciview haze index values using observed data instead of relying on the CENRAP modeling, two statistical analyses were performed and evaluated to determine the most appropriate analysis for predicting the haze index values based on observed data: Trend Analysis, and Ranked Statistical Analysis. The 2018 average of the 20% worst days for visibility was calculated to be 20.07 dv for Caney Creek and 20.91 dv for Upper Buffalo. These numbers are far below the URP for the first planning period and demonstrate that no source in Arkansas, including Independence, needs to install controls for Arkansas to remain below the glide path.
We disagree with the commenter that the CENRAP CAMx predicted 2018 haze index is overly conservative. The comments indicate a lack of understanding of how reasonable progress goals are established, as well as the imports of the goals as opposed to the measures adopted to ensure reasonable progress. As we state in the Regional Haze Rule, the reasonable progress goal(s) set by the state, or EPA when promulgating a FIP, are not enforceable. The reasonable progress goals are an analytical tool used by EPA and the states to estimate future visibility conditions and track progress towards the goal of natural visibility conditions. Accordingly, the RPGs must represent an estimate of the degree of visibility improvement that will result in a future year from changes in emissions inventories, changes driven by the particular set of control measures adopted in the regional haze SIP or FIP to address visibility, as well as all other enforceable measures expected to reduce emissions. Given the forward-looking nature of reasonable progress goals and the range of assumptions that must be made as to emissions in the future, we expect there to be some uncertainty in the estimates of future visibility.
The statistical analyses provided by the commenter are simply extrapolations of future visibility conditions based on observed reductions in visibility impairment in the past. Future visibility projections must be directly tied to projections of future emissions, and anticipated reductions due to federal and state requirements. Current 5-yr average (2010-2014) observed visibility conditions are 21.8 dv at Caney Creek and 21.6 dv at Upper Buffalo. Any future improvements in overall visibility conditions at the Arkansas Class I areas between now and 2018 will be due to future emission reductions during that time period. Commenters have not provided any specific information suggesting anticipated enforceable emission reductions from those Arkansas point sources with significant visibility impacts or other sources that would result in the almost 2 dv visibility improvement by 2018 projected by the commenter at Caney Creek in their statistical analysis. Furthermore, as discussed above, any anticipated emission reductions from sources in other states do not relieve Arkansas of its regional haze obligations. The BART requirements under § 51.308(e) must be met for those specific sources that meet the BART criteria and contribute to visibility impairment. The determination of whether an RPG and the emission limitations and other control measures upon which it is based constitute reasonable progress is made by conducting certain analyses and
The RPGs are an analytical tool the state and we use to evaluate whether the measures in the implementation plan are sufficient to achieve reasonable progress. What is enforceable under the RH rule are the emission limitations and other control measures that apply to specific sources, and upon which the RPGs are based. Since the emission limitations we are requiring in our FIP for specific Arkansas sources (which is what our revised RPGs are based upon) are not currently being achieved, we disagree that visibility at the Class I areas has already improved beyond what we would require in our FIP and that our FIP is therefore unjustified and unwarranted. The emission reductions required in this action will result in significant visibility improvements at the Class I areas beyond what is currently being achieved or observed. As discussed elsewhere throughout this final rule, the commenter's photochemical modeling analysis provides an additional demonstration that the controls required in this action result in visibility benefits beyond current observed visibility conditions and serve to accelerate progress towards natural visibility conditions.
The differences in projected 2018 visibility conditions at Caney Creek and Upper Buffalo that are attributable to all of the proposed FIP controls—including both FIP BART and FIP reasonable progress requirements—will be imperceptibly small (
Commenters also state that the methodology utilized by EPA in estimating the RPGs is oversimplified and inaccurate. EPA chose a method of determining RPGs that is admittedly inferior and less sophisticated than the alternative approach, which EPA rejected in Arkansas but used in Texas: CAMx photochemical modeling. EPA admits that it has not performed its own modeling in a manner adequate to develop “refined numerical RPGs.” Some commenters stated that EPA used CALPUFF, which is not a photochemical grid model, to develop a “quick-and-dirty” RPG analysis in the proposed Rule.
We disagree with the commenter that the amount of visibility improvement due to our proposed FIP is “insignificant.” We address comments concerning the perceptibility of visibility improvements in response to comments elsewhere. The required controls are estimated to improve overall visibility benefits compared to the CENRAP projected visibility conditions for 2018 by approximately 0.2 deciviews, a reduction in light extinction of about 2 Mm
We disagree with the commenter that our proposed RPGs overstated the visibility benefit of controls or that they are inaccurate. In our proposal, we acknowledged that the methodology we utilized to estimate the revised RPGs is
We discuss our selection of the CALPUFF model for evaluating single-source visibility impacts in a separate response to comment above. In the response, we also explain the model selection for our Texas action and refer the reader to our detailed explanation in the RTC that accompanies that action. Commenters are incorrect and confuse the single-source visibility analysis used to evaluate the visibility benefit of controls on a specific source with the assessment of overall visibility conditions. We did not use the CALPUFF modeling to develop the new reasonable progress goals we establish in this rulemaking. The RPGs are based on adjusting the CENRAP 2018 CAMx photochemical modeling based on source apportionment modeling results and emission inventory data. As we stated in the proposed rulemaking, we did not perform additional photochemical modeling to directly model the new projected visibility goals due to the time and resource demands associated with photochemical modeling. The commenters are also incorrect in their comparison of approaches for establishing new RPGs between this action for Arkansas and our previous action in Texas. For both Texas and Arkansas, we utilized the CENRAP 2018 CAMx modeling that estimated the 2018 RPGs and then adjusted those RPGs to account for estimated visibility improvement due to required controls. In neither case did we perform a full photochemical modeling analysis to model all the required controls and project the future visibility conditions. In both cases, the 2018 RPGs were adjusted based on a scaling of the source apportionment model results and emission inventory changes.
Another commenter was supportive of our approach, stating that in Texas, the model results were used to demonstrate that the overall change in species concentrations was very nearly linearly proportional to the change in emission levels for an individual source (with very high linear correlation coefficients near 1.0). This strongly supports the use of the emission scaling approach for Arkansas. If the CAMx model were used to determine the impact of emission controls on a single source in Arkansas (such as Independence), it is therefore expected that the modeled reductions in sulfate and nitrate concentrations at each of the Class I areas will be very nearly proportional to the SO
We agree with the commenters, that in general, the relationship between downwind concentrations and emissions can be complicated and non-linear due to complex chemistry, including the fact that reductions in sulfur emissions can result in an increase in ammonium nitrate. For estimating the total visibility benefit from all controls and estimating a new reasonable progress goal that reflects those controls, we relied on the CENRAP's 2018 CAMx modeling results, including source apportionment results, and the projected emission inventories, and scaled the results as described in the TSD, similar to what was done in our previous action in Arizona and Texas. While we acknowledge that this approach is not as refined an estimate as would be attained in performing a new photochemical modeling run, it is based on scaling to adjust earlier photochemical modeling results that took into account the complex chemistry that impacts the overall visibility. The uncertainty in the visibility benefit from these controls introduced by the linear extrapolation does not impact the overall conclusions. Furthermore, in our technical analysis developed to support our action on Texas regional haze, we observed that for each facility and Class I area, the available modeled visibility impact was linear with respect to emissions with
In this regard, EPA fails to explain why (a) the Agency may permissibly use a concededly oversimplified and inaccurate shortcut methodology for calculating RPGs in its FIP, on the grounds that EPA otherwise would have to conduct time-consuming and complicated modeling,
Section 169B(e)(1) of the CAA directed the Administrator to promulgate regulations that “include[e] criteria for measuring `reasonable progress' toward the national goal.” Consequently, we promulgated 40 CFR 51.308(d)(1) as part of the Regional Haze Rule. This provision directs states to develop RPGs for the most and least impaired days to “measure” the progress that will be achieved by the control measures in the state's long-term strategy “over the period of the implementation plan.”
In this instance, we are taking final action on the Arkansas Regional Haze FIP 9 years after the state's initial SIP submission was due.
We disagree with the commenter that the proposed RPGs overstated the visibility benefit of controls or that they are inaccurate. In our proposal, we acknowledged that the methodology we utilized to estimate the RPGs is not as refined as developing an updated model projection. However, it allows us to translate the emission reductions contained in the proposed FIP into quantitative RPGs, based on modeling previously performed by the CENRAP.
We disagree that Arkansas would be held to a higher standard or that the methodology utilized by EPA to adjust the RPGs would not be approvable if submitted by a state. The approach followed by EPA in this action, using scaling to adjust the modeled RPGs based on photochemical source apportionment model results is reasonable and meets the requirements of the Regional Haze Rule. In our 2012 rulemaking,
We received several comments on EPA's legal authority to promulgate a FIP under the Regional Haze Rule, and, more specifically, to address the Rule's reasonable progress requirements. Below is a summary of some of the more significant comments. For a more detailed explanation, please refer to the RTC document that is a part of the docket for this rulemaking.
We received comments that EPA is prohibited from requiring controls for this planning period if they cannot be installed during this planning period. We disagree with these comments. The CAA establishes our authority and responsibility to promulgate a FIP that addresses the requirements of the regional haze program where a State's SIP submission fails to meet the program requirements. Although the first planning period, ending in 2018, includes RPGs specific to that planning period, there is no limitation in the CAA or the Regional Haze Rule that controls contained in a SIP (or a FIP) must be fully implemented by the end of the planning period. As both the long-term strategy and BART requirements may extend beyond the first planning period, it follows that EPA has FIP authority to fill in “gaps” or “inadequacies” related to those components irrespective of whether controls can be put into place by 2018. In addition, any emission limitations that prove to be required by the CAA for the first planning period need to be achieved at their soonest opportunity, not delayed, deferred, or avoided for later planning periods when even further progress may be required in order to achieve the national visibility goal.
We also received comments that we had no legal basis for requiring alternative proposals for SO
In addition, we received several comments that our proposed FIP was not in keeping with the legal requirements for reasonable progress and long term strategy as spelled out in the Regional Haze Rule and EPA Guidance. We disagree and explain in more detail in the RTC document that we disapproved the reasonable progress determination Arkansas submitted in 2012 because the State did not conduct the required four-factor analysis. The CAA requires us to stand in the State's shoes and promulgate a FIP that addresses the requirements of the Regional Haze Rule that we disapproved, including reasonable progress and the long term strategy for Arkansas' Class I areas.
We also received comments that our proposed FIP did not take into account the leading role of the state in developing a plan that addresses the regional haze program and thus is not in keeping with cooperative federalism. We disagree that EPA ignored the principles of cooperative federalism. Arkansas did develop a regional haze plan. We reviewed it and partially approved and disapproved the plan in 2012. The CAA creates a mandatory duty for EPA to either approve a state SIP revision submittal that corrects the deficiency or promulgate a FIP within two years of the effective date of the disapproval of a state plan.
We received comments that EPA does not have authority to finalize a FIP after two years have elapsed from our initial disapproval of the Arkansas Regional Haze SIP. We describe in more detail in the RTC document our disagreement with this interpretation of what is required under the Clean Air Act. The Tenth Circuit has upheld EPA's authority to finalize a Regional Haze FIP after the two years have passed for EPA to act on Oklahoma's Regional Haze SIP.
We also received comments that our proposed FIP was not in keeping with Executive Orders 12866 and 13211. Our response is that our proposed action is not subject to Executive Order 13211 because it is not a “significant regulatory action” under Executive Order 12866; therefore, the proposed FIP is not a rule of general applicability because its requirements apply and are tailored to only seven individually identified facilities. Thus, it is not a “rule” or “regulation” within the meaning of E.O. 12866 and this action is not a “regulatory action” subject to 12866. Since E.O. 13211 applies only to “significant regulatory actions” under E.O. 12866, this action is not subject to review under E.O. 13211.
We respond in greater detail in the RTC document to comments that EPA did not adequately consider costs to ratepayers as is required under Arkansas law in developing air regulations. States are under an obligation to submit a Regional Haze SIP to EPA which complies with federal requirements. While states enjoy flexibility in developing a SIP and can meet additional state requirements as long as the federal requirements are satisfied, in the event that EPA must step in and create a Federal Implementation Plan, we must meet all federal requirements. We are not subject to state law requirements related to how the cost
We received several general comments including a claim that documents that EPA relied for its rulemaking were not in the docket. As explained more fully in our RTC document, the documents referred to are briefing sheets and did not serve as the basis for EPA's decision making. The docket contains all of the documents that serve as our basis for our rulemaking for Arkansas Regional Haze.
Arkansas chose to address the interstate visibility transport requirement under section 110(a)(2)(D)(i)(II) by relying on its 2008 Regional Haze SIP submittal to achieve the emissions reductions necessary to meet this requirement. However, due to our previous partial disapproval of this submittal,
We disagree with the commenter's contention that our interpretation is contrary to the CAA because the Act gives clear direction that each state is to determine its own emission limits, schedules of compliance and other measures for sources in that state for purposes of visibility protection under section 169A. The commenter states that our interpretation would impermissibly give one state the power to control another state's regional haze SIP decisions. However, the commenter's interpretation is inconsistent with section 110(a)(2)(D)(i)(II)'s “good neighbor” provision, which requires states to prohibit emissions that interfere with other states' measures to protect visibility. This statutory requirement anticipates that a state may be required to adjust its own emissions based on the impacts of those emissions on other states. Our Regional Haze Rule, which was promulgated through notice-and-comment rulemaking in 1999, also requires that states develop “coordinated emission management strategies” when necessary to prevent interstate visibility impairment.
As stated above, Arkansas elected to address the interstate visibility transport requirement under section 110(a)(2)(D)(i)(II) by relying on the BART determinations that are part of its
We address elsewhere in this document comments contending that there is uncertainty in the CALPUFF modeling and uncertainty that our proposed controls will result in actual visibility improvements.
We are finalizing a FIP to remedy the deficiencies in the Arkansas Regional Haze SIP and Interstate Visibility Transport SIP to address the visibility transport requirement under section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and PM
Our final FIP includes SO
Based on our technical analysis, we have calculated the following RPGs for the 20% worst days for Arkansas' Class I areas:
We are finalizing our determination that the control measures in the approved portion of the Arkansas Regional Haze SIP and our final FIP are sufficient to prevent Arkansas' emissions from interfering with other states' required measures to protect visibility. Thus, the combined measures from both plans satisfy the interstate transport visibility requirement of CAA section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone and the 1997 PM
This action is exempt from review by the Office of Management and Budget (OMB) because it imposes requirements that apply and are tailored to only six individual power plants (AECC Bailey; AECC McClellan; AEP Flint Creek; Entergy White Bluff; Entergy Lake Catherine; and Entergy Independence) and one paper mill in Arkansas (Domtar Ashdown Paper Mill). This FIP is not a rule of general applicability. Thus, it is not a “rule” or “regulation” within the meaning of E.O. 12866, and this action is not a “regulatory action” subject to 12866.
This action does not impose an information collection burden under the provisions of the PRA, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This FIP will apply to seven facilities, none of which fall under the definition of small entities.
EPA has determined that Title II of the UMRA does not apply to this rule. In 2 U.S.C. 1502(1) all terms in Title II of UMRA have the meanings set forth in 2 U.S.C. 658, which further provides that the terms “regulation” and “rule” have the meanings set forth in 5 U.S.C. 601(2). Under 5 U.S.C. 601(2), “the term `rule' does not include a rule of particular applicability relating to . . . facilities.” Because this rule is a rule of particular applicability relating to seven named facilities, EPA has determined that it is not a “rule” for the purposes of Title II of the UMRA.
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. The final rule does not impose significant economic costs on state or local governments. Thus, Executive Order 13132 does not apply to the final rule.
This action does not have tribal implications as specified in Executive Order 13175. This action applies to seven facilities in Arkansas and to Federal Class I areas in Arkansas. This action does not apply on any Indian reservation land, any other area where 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 implements specific standards established by Congress in statutes.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This FIP limits emissions of SO
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 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, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides, Visibility, Interstate transport of pollution, regional haze, Best available retrofit technology.
Title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c)
(1)
(2)
(3)
(4)
(5)
(ii)
(iii) The owner or operator shall continue to maintain and operate a CEMS for NO
(iv) Continuous emissions monitoring shall apply during all periods of operation of the units listed in paragraph (c)(3) of this section, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments. Continuous monitoring systems for measuring NO
(6)
(7)
(8)
(ii) For purposes of determining compliance with the 0.15 lb/MMBtu NO
(A) Summing the total pounds of NO
(B) Summing the total heat input in MMBtu to the unit during the current boiler-operating-day and the preceding 29 boiler-operating-days while including only the heat input during hours when the unit was dispatched at 50% or greater of the unit's maximum heat input rating; and
(C) Dividing the total pounds of NO
(iii) For purposes of determining compliance with the 671 lb/hr NO
(A) Summing the total pounds of NO
(B) Dividing the total pounds of NO
(iv) The owner or operator shall continue to maintain and operate a CEMS for SO
(v) Continuous emissions monitoring shall apply during all periods of operation of the units listed in paragraph (c)(6) of this section, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments. Continuous monitoring systems for measuring SO
(9)
(10)
(11)
(12)
(13)
(14)
(ii) The owner or operator shall continue to maintain and operate a CEMS on the unit listed in paragraph (c)(12) of this section in accordance with 40 CFR part 75, Appendix E as long as the unit meets the definition of a peaking unit under 40 CFR part 75. The owner or operator shall comply with the quality assurance procedures for CEMS found in 40 CFR part 75.
(iii) Continuous emissions monitoring shall apply during all periods of operation of the unit listed in paragraph (c)(12) of this section, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments.
(15)
(16)
(17)
(B) The owner or operator must confirm the site-specific curve equation through stack testing. By October 27, 2017, the owner or operator must provide a report to EPA showing confirmation of the site specific-curve equation accuracy. Records of the quantity of fuel input to the boiler for each fuel type for each day must be compiled no later than 15 days after the end of the month and must be maintained by the owner or operator and made available upon request to EPA and ADEQ representatives. Each boiler-operating-day of the 30-day rolling average for the boiler must be determined by adding together the pounds of SO
(ii) If the air permit is revised such that Power Boiler No. 1 is permitted to burn only pipeline quality natural gas, this is sufficient to demonstrate that the boiler is complying with the SO
(iii) To demonstrate compliance with the NO
(iv) If the air permit is revised such that Power Boiler No. 1 is permitted to burn only pipeline quality natural gas, the owner or operator may demonstrate compliance with the NO
(18)
(19)
(20)
(ii) The owner or operator shall continue to maintain and operate a CEMS for SO
(iii) Continuous emissions monitoring shall apply during all periods of operation of the boiler listed in paragraph (c)(18) of this section, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments. Continuous monitoring systems for measuring SO
(iv) If the air permit is revised such that Power Boiler No. 2 is permitted to burn only pipeline quality natural gas, this is sufficient to demonstrate that the boiler is complying with the SO
(v) If the air permit is revised such that Power Boiler No. 2 is permitted to burn only pipeline quality natural gas and the operation of the CEMS is not required under other applicable requirements, the owner or operator may demonstrate compliance with the NO
(21)
(22)
(23) Alternative
(24)
(25)
(26)
(ii) For purposes of determining compliance with the 0.15 lb/MMBtu NO
(A) Summing the total pounds of NO
(B) Summing the total heat input in MMBtu to the unit during the current boiler-operating-day and the preceding 29 boiler operating days while including only the heat input during hours when the unit was dispatched at 50% or greater of the unit's maximum heat input rating; and
(C) Dividing the total pounds of NO
(iii) For purposes of determining compliance with the 671 lb/hr NO
(A) Summing the total pounds of NO
(B) Dividing the total pounds of NO
(iv) The owner or operator shall continue to maintain and operate a CEMS for SO
(v) Continuous emissions monitoring shall apply during all periods of operation of the units listed in paragraph (c)(24) of this section, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments. Continuous monitoring systems for measuring SO
(27)
(i) For each emissions limit under paragraph (c) of this section where compliance shall be determined by using data from a CEMS, comply with the notification, reporting, and recordkeeping requirements for CEMS compliance monitoring in 40 CFR 60.7(c) and (d).
(ii) [Reserved]
(28)
(29)
(ii) Emissions in excess of the level of the applicable emission limit or requirement that occur due to a malfunction shall constitute a violation of the applicable emission limit.
(d)
Department of Defense (DoD).
Interim final rule; amendment.
This rule contains amendments to an interim final rule published in the
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:
•
•
Diana Rangoussis, Senior Policy Advisor, DoD Sexual Assault Prevention and Response Office (SAPRO), (571) 372-2648.
This rule amends the interim final rule published in the
(a) Incorporating Secretary of Defense policy initiatives in furtherance of the Department's continuous goal to eliminate sexual assault through the focus efforts of leadership to include:
• CMG Chair inquiry into incidents of retaliation involving the victim, witnesses, bystanders (who intervened), SARC, SAPR VA, or responders;
• Specialized training for all supervisors (officer, enlisted, civilian) that explain requirement to protect victim from retaliation, reprisal, ostracism, and maltreatment; what constitutes retaliation, reprisal, ostracism, and maltreatment; list of resources available for victims to report instances of retaliation, reprisal, ostracism, or maltreatment.
(b) Incorporating NDAA FY14 requirements for updated SAPR training standards for Service members, which include specific standards for: Accessions, annual, professional military education and leadership development training, pre- and post-deployment, pre-command, General and Field Officers and SES, military recruiters, civilians who supervise military, and responders (to include legal assistance attorneys) training;
(c) Incorporating NDAA FY15 requirement for training on the new military rule of evidence (MRE) 513 that established the victim advocate privilege in UCMJ cases;
(d) Establishing requirements for a sexual assault victim safety assessment and the execution of a high-risk team to monitor cases where the sexual assault victim's life and safety may be in jeopardy;
(e) Elevating SAPR oversight to senior leadership through an eight-day incident report in response to Unrestricted Report of sexual assault;
(f) Establishing a special victim capability to provide legal representation to victims of sexual assault;
(g) Incorporating NDAA FY13 requirements to retain or recall to active duty reserve component members who are victims of sexual assault while on active duty;
(h) Requiring the Department of Defense to establish a record on the disposition of any Unrestricted Report of sexual assault;
(i) Incorporating NDAA requirement to post and widely disseminate SAPR information available to report and respond, including hotline and Internet Web sites;
(j) Requiring that commanders conduct a command assessment within 120 days of assumption of command;
(k) Establishing requirement for a general or flag officer review of and concurrence in the separation of a victim of sexual assault making an Unrestricted Report from the Armed Forces;
(l) Providing notification to Armed Forces members completing Standard Form 86 of the Questionnaire for National Security Positions the ability to answer “no” to question 21 if the individual is a victim of sexual assault and consultation occurred strictly in relation to the sexual assault.
(m) Preempting state and local laws requiring disclosure of PII of the service member (or adult military dependent) victim or alleged perpetrator to state or local law enforcement agencies, unless such reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of an individual, as determined by an authorized Department of Defense official.
The Department of Defense is publishing this rule as interim to maintain and enhance the current SAPR program which elucidates the prevention, response, and oversight of sexual assaults involving members of the U.S. Armed Forces and Reserve Component, to include the National Guard.
Until this interim final rule is published, DoD is limited in its ability to properly address issues associated with sexual assault such as minimal leadership involvement, hostile command environment, retaliation, ostracism, and maltreatment.
For example, until this rule is published:
• Sexual assault victims do not have the ability to receive legal assistance from Special Victims Counsel (SVC) and Victims' Legal Counsel (VLC).
• Victims of sexual assault regardless of their geographic location will not have the option of a restricted report. This reporting option allows victims to confidentially disclose the assault to specified individuals (
• State and local laws are not preempted and would require disclosure of PII of the service member (or adult military dependent), a victim or the alleged perpetrator.
• Military members who are sexually assaulted cannot receive the ability to request an Expedited Transfer as a means to getting a `fresh start' to support the victim's recovery.
• Reserve Component and National Guard members who are victims of sexual assault will not receive the same SAPR advocacy regardless of when the sexual assault incident occurred, similar to the advocate support afforded their active duty counterparts.
The authorities for this rule are based on the following:
(1) Incorporates all applicable congressional mandates from Public Laws 112-239, 113-66, 113-291, 114-92 and all applicable policy guidance from the IG, DoD; GAO; DoD Task Force on Care for Victims of Sexual Assault; and Defense Task Force on Sexual Assault in the Military Service (DTFSAMS);
(2) Establishes the creation, implementation, maintenance, and function of DSAID, an integrated database that will meet congressional reporting requirements, support Service SAPR program management, and inform DoD SAPRO oversight activities;
(3) Increases the scope of applicability of this part by expanding the categories of persons covered by this part to include:
(i) National Guard (NG) and Reserve Component members who are sexually assaulted when performing active service, as defined in 10 U.S.C. 101(d)(3), and inactive duty training. If reporting a sexual assault that occurred prior to or while not performing active service or inactive training, NG and Reserve Component members will be eligible to receive timely access to SAPR advocacy services from a Sexual Assault Response Coordinator (SARC) and a SAPR Victim Advocate (SAPR VA). They also have access to a Special Victim Counsel and are eligible to file a Restricted or Unrestricted Report. Additionally, the Reserve Component members can report at any time and do not have to wait to be performing active service or be in inactive training to file their report.
(ii) Military dependents 18 years of age and older who are eligible for treatment in the military healthcare system (MHS), at installations in the continental United States (CONUS) and outside the continental United States (OCONUS), and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner.
(iii) Adult military dependents who may file unrestricted or restricted reports of sexual assault.
(iv) The Family Advocacy Program (FAP), consistent with DoDD 6400.1
(4) Non-military individuals who are victims of sexual assault who are only eligible for limited emergency care medical services at a military treatment facility, unless that individual is otherwise eligible as a Service member or TRICARE (
(i) DoD civilian employees and their family dependents 18 years of age and older when they are stationed or performing duties OCONUS and eligible for treatment in the MHS at military installations or facilities OCONUS. These DoD civilian employees and their family dependents 18 years of age and older only have the Unrestricted Reporting option.
(ii) U.S. citizen DoD contractor personnel when they are authorized to accompany the Armed Forces in a contingency operation OCONUS and their U.S. citizen employees. DoD contractor personnel only have the Unrestricted Reporting option. Additional medical services may be provided to contractors covered under this part in accordance with DoDI 3020.41
(5) Service members who are on active duty but were victims of sexual assault prior to enlistment or commissioning are eligible to receive SAPR services under either reporting option. The DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place.
The authorities for these changes are provided by the following.
• Public Law 114-92, National Defense Authorization Act for Fiscal Year 2016 which preempts state and local laws requiring disclosure of PII of the service member (or adult military dependent) victim or alleged perpetrator to state or local law enforcement agencies, unless such reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of an individual, as determined by an authorized Department of Defense official.
• Public Law 113-291, Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 which provides
• Public Law 112-239, National Defense Authorization Act for Fiscal Year 2013 which
• Public Law 113-66, National Defense Authorization Act for Fiscal Year 2014 which
For Fiscal Year 2015, the preliminary estimate of the anticipated costs associated with this rule is approximately $15 million. Additionally, each Military Services must establish its own SAPR budget for the programmatic costs arising from the implementation of the training, prevention, reporting, response, and oversight requirements established by this rule.
The anticipated benefits associated with this rule include the following.
(1) Requires medical care and SAPR services be gender responsive, trauma informed, culturally competent and recovery oriented. This includes requirements to assign at least one full-time sexual assault medical forensic examiner to each military treatment facility with an 24-hour emergency department.
(2) Requires both Unrestricted and Restricted Reports to be retained for 50 years to preserve the historical record of a sexual assault victims case for future claims for support or medical services.
(3) Allows a commander authority to temporarily reassign or remove subject from current assignment for the purposes of maintaining good order and discipline.
(4) Protects Military Service members who file Unrestricted or Restricted Reports of sexual assault from reprisal, or threat of reprisal, for filing a report.
(5) Expands the applicability of SAPR services to military dependents 18 years and older who have been sexually assaulted and giving the option of both reporting options
(6) Supports to an active duty Military Service member regardless of when or where the sexual assault took place.
(7) Mandates training standards for legal assistance attorneys in performance of their role as SVCs/VLCs.
(8) Establishes “victim advocate privilege” through implementation of Executive Order 13593 establishing a new military rule of evidence (MRE) 514 which ensures the communications between a sexual assault victim and victim advocate is protected from disclosure.
(9) Addresses sexual assault victims safety concerns through the administering of a “safety assessment” by trained first responders.
(10) Increases efforts to effect change in the military culture by improving SAPR training standards specifically targeting accessions, annual, professional military education and leadership development, pre and post deployment, pre command, senior leadership (military and civilian), military recruiters, and responders.
It has been determined that this rule does not:
(a) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(b) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; or
(c) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof.
However, it has been determined that this rule does raise novel legal or policy issues arising out of legal mandates, and the principles set forth in these Executive Orders.
It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified 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. This rule provides guidance and procedures for the DoD SAPR Program only.
Section 105.15 of this interim final rule contains information collection requirements. These collection requirements have been assigned OMB Control Number 0704-0482, “Defense Sexual Assault Incident Database.” The System of Records Notice for the rule is available at
It has been certified that this rule does have federalism implications, as set forth in Executive Order 13132, because it incorporates the pre-emption language in section 536 of Public Law 114-92, which preempts state and local laws requiring disclosure of personally identifiable information of the service member (or adult military dependent) victim or alleged perpetrator to state or local law enforcement agencies, unless such reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of an individual, as determined by an authorized Department of Defense official. This rule does have substantial direct effects on:
(a) The States;
(b) The relationship between the National Government and the States; or
(c) The distribution of power and responsibilities among the various levels of Government.
Crime, Health, Military personnel, Reporting and recordkeeping requirements.
Accordingly, 32 CFR part 105 is amended as follows:
Secs. 570, 573, 574, and 578, Pub. L. 112-239, 126 Stat. 1632; secs. 1705, 1709, 1713, 1723, 1743, and 1747, Pub. L. 113-66, 127 Stat. 672; secs. 531, 537, 538,
The revisions read as follows:
(e) Incorporates and cancels DTM 11-063, DTM 11-062, and DTM 14-007.
(f) Implements DoD policy and assigns responsibilities for the SAPR Program on prevention, response, and oversight to sexual assault according to the policies and guidance in:
(1) DoDI 6495.02, “Sexual Assault Prevention and Response Program Procedures,” June 23, 2006 (hereby cancelled);
(2) DoD Directive 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R)),” June 23, 2008;
(3) 32 CFR part 103;
(4) Title 10, U.S.C.;
(5) Under Secretary of Defense for Personnel and Readiness, “Task Force Report on Care for Victims of Sexual Assault,” April 2004;
(6) Sections 561, 562, and 563 of Public Law 110-417, “Duncan National Defense Authorization Act for Fiscal Year 2009,” October 14, 2008;
(7) Sections 584, 585, and 586 of Public Law 112-81, “National Defense Authorization Act for Fiscal Year 2012,” December 31, 2011;
(8) Public Law 112-239, “National Defense Authorization Act for Fiscal Year 2013,” January 2, 2013;
(9) Public Law 113-66, “National Defense Authorization Act for Fiscal Year 2014,” December 26, 2013;
(10) Public Law 113-291, “Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act for Fiscal Year 2015,” December 29, 2014;
(11) Public Law 114-92, “National Defense Authorization Act for Fiscal Year 2016,”
(12) Directive Type Memorandum 11-063, “Expedited Transfer of Military Service Members Who File Unrestricted Reports of Sexual Assault,” December 16, 2011;
(13) Directive Type Memorandum 11-062, “Document Retention in Cases of Restricted and Unrestricted Reports of Sexual Assault,” December 16, 2011;
(14) Directive Type Memorandum 14-007, “Sexual Assault Incident Response Oversight (SAIRO) Report,” September 30, 2014, hereby cancelled;
(15) DoDI 3020.41, “Operational Contract Support (OCS),” December 20, 2011;
(16) DoD 6400.1-M-1, “DoD Manual for Child Maltreatment and Domestic Abuse Incident Reporting System,” July 2005, as amended;
(17) U.S. Department of Defense, “Manual for Courts-Martial, United States,” current edition amended;
(18) DoDI 1332.14, “Enlisted Administrative Separations,” January 27, 2014, as amended, which can be found at
(19) DoDI 1332.30, “Separation of Regular and Reserve Commissioned Officers,” November 25, 2013, which can be found at
(20) Title 5, U.S.C.;
(21) DoD Directive 5400.11, “DoD Privacy Program,” October 29, 2014;
(22) Public Law 104-191, “Health Insurance Portability and Accountability Act of 1996,” August 21, 1996;
(23) DoDI 5505.18, “Investigation of Adult Sexual Assault in the Department of Defense,” January 25, 2013, as amended, which can be found at
(24) Presidential Memorandum, “Implementing the Prison Rape Elimination Act,” May 17, 2012;
(25) Part 115 of title 28, Code of Federal Regulations, May 17, 2012;
(26) DoD Manual 8910.01, Volume 2, “DoD Information Collections Manual: Procedures for DoD Public Information Collections,” June 30, 2014, which can be found at
(27) DoDI 5545.02, “DoD Policy for Congressional Authorization and Appropriations Reporting Requirements,” December 19, 2008, which can be found at
(28) DoD Manual 8910.01, Volume 1, “DoD Information Collections Manual: Procedures for DoD Internal Information Collections,” June 30, 2014, which can be found at
(29) DoDI 6495.03, “Defense Sexual Assault Advocate Certification Program (D-SAACP),” September 10, 2015, which can be found at
(30) U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” current version, which can be found at
(31) DoDI 5505.19, “Establishment of Special Victim Investigation and Prosecution (SVIP) Capability within the Military Criminal Investigative Organizations (MCIOs),” February 3, 2015, can be found at
(32) DoDI 1030.2, “Victim and Witness Assistance Procedures,” June 4, 2004, which can be found at
(33) DoD Directive 7050.06, “Military Whistleblower Protection,” April 17, 2015, which can be found at
(34) Under Secretary of Defense (Personnel and Readiness) Memorandum, “Guidelines for the DoD Safe Helpline,” January 22, 2015;
(35) DoD Directive 1350.2, “Department of Defense Military Equal Opportunity (MEO) Program,” August 18, 1995, as amended, which can be found at
(36) Directive Type Memorandum 14-003, “DoD Implementation of Special Victim Capability (SVC) Prosecution and Legal Support,” February 12, 2014, (as amended), which can be found at
(37) Under Secretary of Defense (Personnel and Readiness) Memorandum, “Certification Standards for Department of Defense Sexual Assault Prevention and Response Program Managers,” March 10, 2015;
(38) DoDI 6400.07, “Standards for Victim Assistance Services in the Military Community,” November 25, 2013, which can be found at
(39) DoD 6025.18-R, “DoD Health Information Privacy Regulation,” January 24, 2003, which can be found at
(40) Executive Order 13593, “2011 Amendments to the Manual for Courts-Martial, United States,” December 13, 2011, can be found at
(41) AD 2014-20/AFI 36-2909/SECNAVINST 5370.7D, dated 4 Dec 14,
(42) DoD Directive 1030.01, “Victim and Witness Assistance,” April 13, 2004, which can be found at
(43) Executive Order 13696 Amendments to the Manual for Courts-Martial, dated June 17, 2015;
(44) Department of Defense 2014-2016 Sexual Assault Prevention Strategy, April 30, 2014, which can be found at
(45) DoD Directive 5136.13, “Defense Health Agency (DHA),” September 30, 2013, which can be found at
(46) U.S. Department of Justice, Office on Violence Against Women, “National Training Standards for Sexual Assault Medical Forensic Examiners,” current version, which can be found at
(47) DoDI 6025.13, “Medical Quality Assurance (MQA) and Clinical Quality Management in the Military Health Care System (MHS)”, February 17, 2011, as amended, which can be found at
(48) Under Secretary of Defense for Personnel and Readiness Memorandum, “Legal Assistance for Victims of Crime,” October 17, 2011, which can be found at
(49) DoD 4165.66-M, “Base Redevelopment and Realignment Manual,” March 1, 2006, which can be found at
(a) This part applies to:
(1) Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the IG, DoD, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (hereafter referred to collectively as the “DoD Components”).
(2) National Guard and Reserve members, who are sexually assaulted when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training. If reporting a sexual assault that occurred prior to or while not performing active service or inactive training, NG and Reserve members will be eligible to receive timely access to SAPR advocacy services from a SARC and a SAPR VA, and the appropriate non-medical referrals, if requested, in accordance with section 584(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012, as amended by section 1724 of NDAA for FY 2014 (Public Law 113-66). They also have access to a Special Victims Counsel in accordance with section 1044e of title 10, U.S.C. and are eligible to file a Restricted or Unrestricted Report. Reports of prior-to-military service sexual assault shall be handled in accordance with the procedures for Restricted and Unrestricted Reports outlined in this part, as appropriate based on the type of report made (Restricted or Unrestricted). Reserve Component members can report at any time and do not have to wait to be performing active service or be in inactive training to file their report.
(3) Military dependents 18 years of age and older who are eligible for treatment in the MHS, at installations continental United States (CONUS) and outside of the continental United States (OCONUS), and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner (See § 105.3). Adult military dependents may file unrestricted or restricted reports of sexual assault.
(4) The following non-military individuals who are victims of sexual assault are only eligible for limited emergency care medical services at a military treatment facility, unless that individual is otherwise eligible as a Service member or TRICARE (
(i) DoD civilian employees and their family dependents 18 years of age and older when they are stationed or performing duties OCONUS and eligible for treatment in the MHS at military installations or facilities OCONUS. These DoD civilian employees and their family dependents 18 years of age and older only have the Unrestricted Reporting option.
(ii) U.S. citizen DoD contractor personnel when they are authorized to accompany the Armed Forces in a contingency operation OCONUS and their U.S. citizen employees. DoD contractor personnel only have the Unrestricted Reporting option. Additional medical services may be provided to contractors covered under this part in accordance with DoDI 3020.41 as applicable.
(5) Service members who were victims of sexual assault PRIOR to enlistment or commissioning are eligible to receive SAPR services (see § 105.3) under either reporting option. The DoD shall provide support to Service members regardless of when or where the sexual assault took place. The SARC or SAPR VA will assist a victim to complete a DD Form 2910, “Victim Reporting Preference Statement,” and provide advocacy services and the appropriate referrals, if requested, for victimization occurring prior to military service.
(i) Prior-to-military service victimization includes adult sexual assault (including stranger sexual assault and intimate partner sexual assault, if the victim is no longer in the same intimate relationship) and sexual assault that was perpetrated on the Service member while he or she was still a child.
(ii) Reports of prior to military service sexual assault will be handled in accordance with the procedures for Restricted and Unrestricted Reports outlined in this part, as appropriate based on the type of report made (Restricted or Unrestricted).
(b) This part does not apply to victims of sexual assault perpetrated by a spouse or intimate partner (see § 105.3), or military dependents under the age of 18 who are sexually assaulted. The FAP, as described in DoD 6400.1-M-1, provides the full range of services to those individuals. When a sexual assault occurs as a result of domestic abuse or involves child abuse, the installation SARC and the installation FAP staff will direct the victim to FAP.
The revisions and additions read as follows:
(1) Licensed physicians practicing in the military healthcare system (MHS) with clinical privileges in obstetrics and gynecology, emergency medicine, family practice, internal medicine, pediatrics, urology, general medical officer, undersea medical officer, flight surgeon, psychiatrists, or those having clinical privileges to perform pelvic examinations or treat mental health conditions.
(2) Licensed advanced practice registered nurses practicing in the MHS with clinical privileges in adult health, family health, midwifery, women's health, mental health, or those having clinical privileges to perform pelvic examinations.
(3) Licensed physician assistants practicing in the MHS with clinical privileges in adult, family, women's health, or those having clinical privileges to perform pelvic examinations.
(4) Licensed registered nurses practicing in the MHS who meet the requirements for performing a SAFE as determined by the local privileging authority. This additional capability shall be noted as a competency, not as a credential or privilege.
(5) A psychologist, social worker or psychotherapist licensed and privileged to provide mental health are or other counseling services in a DoD or DoD-sponsored facility.
(1) Is available 24/7 worldwide with “click, call, or text” user options for anonymous and confidential support.
(2) Can be accessed by logging on to
(3) Is to be utilized as the sole DoD hotline.
(4) Does not replace local base and installation SARC or SAPR VA contact information.
(1) Investigate and prosecute allegations of child abuse (involving sexual assault or aggravated assault with grievous bodily harm), domestic violence (involving sexual assault or aggravated assault with grievous bodily harm), and adult sexual assault (not involving domestic offenses).
(2) Provide support for the victims of such offenses.
It is DoD policy, in accordance with 32 CFR part 103, that:
(a) This part and 32 CFR part 103 establish and implement the DoD SAPR program. Unrestricted and Restricted Reporting Options are available to Service members and their adult military dependents in accordance with this part.
(b) The DoD goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability (see § 105.3), victim support, reporting procedures, and appropriate accountability that enhances the safety and well-being of all persons covered by this part and 32 CFR part 103.
(1) While a sexual assault victim may disclose information to whomever he or she chooses, an official report is made only when a DD Form 2910 is signed and filed with a SARC or SAPR VA, or when a Military Criminal Investigative Organization (MCIO) investigator initiates an investigation.
(2) For Restricted and Unrestricted Reporting purposes, a report can be made to healthcare personnel, but healthcare personnel then immediately contact the SARC or SAPR VA to fill out the DD Form 2910. Chaplains and military attorneys cannot take official reports.
(3) Unless a DD Form 2910 is filed with a SARC, a report to a Chaplain or military attorney may not result in the rendering of SAPR services or investigative action because of the privileges associated with speaking to these individuals. A Chaplain or military attorney should advise the victim to consult with a SARC to understand the full scope of services available or facilitate, with the victim's consent, contact with a SARC.
(c) The SAPR Program shall:
(1) Focus on the victim and on doing what is necessary and appropriate to support victim recovery, and also, if a Service member, to support that Service member to be fully mission capable and engaged.
(2) Require that medical care and SAPR services are gender-responsive, culturally-competent, and recovery-oriented as defined in 32 CFR 103.3.
(3) Not provide policy for legal processes within the responsibility of the Judge Advocates General (JAG) of the Military Departments provided in sections 801-946 of Title 10, United States Code, also known and referred to in this part as the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial, or for criminal investigative matters assigned to the IG, DoD.
(d) Command sexual assault awareness and prevention programs and DoD law enforcement (see § 105.3) and criminal justice procedures that enable persons to be held appropriately accountable for their actions shall be supported by all commanders.
(e) Standardized SAPR requirements, terminology, guidelines, protocols, and guidelines for training materials shall focus on awareness, prevention, and response at all levels, as appropriate.
(f) SARC and SAPR VA shall be used as standard terms as defined in and in accordance with 32 CFR part 103 throughout the Military Departments to facilitate communications and transparency regarding SAPR response capability.
(g) The SARC shall serve as the single point of contact for coordinating care to ensure that sexual assault victims receive appropriate and responsive care. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.
(h) All SARCs shall have direct and unimpeded contact and access to the installation commander (see § 105.3) and the immediate commander of the Service member victim and alleged Service member offender for the purpose of this part and 32 CFR part 103. The installation commander will have direct contact with the SARC(s) and this responsibility is not further delegable.
(1) If an installation has multiple SARCs on the installation, a Lead SARC shall be designated by the Service.
(2) For SARCs that operate within deployable commands that are not attached to an installation, they shall have access to the senior commander for the deployable command.
(i) A 24 hour, 7 day per week sexual assault response capability for all locations, including deployed areas, shall be established for persons covered in this part. An immediate, trained sexual assault response capability shall be available for each report of sexual assault in all locations, including in deployed locations.
(j) SARCs, SAPR VAs, and other responders (see § 105.3) will assist sexual assault victims regardless of Service affiliation.
(k) Service member and adult military dependent victims of sexual assault shall receive timely access to comprehensive medical and psychological treatment, including emergency care treatment and services, as described in this part and 32 CFR part 103.
(l) Sexual assault victims shall be given priority, and treated as emergency cases. Emergency care (see § 105.3) shall consist of emergency medical care and the offer of a SAFE. The victim shall be advised that even if a SAFE is declined the victim shall be encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy.
(m) DoD prohibits granting a waiver for commissioning or enlistment in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault or is required to be registered as a sex offender.
(n) There will be a safety assessment capability for the purposes of ensuring the victim, and possibly other persons, are not in physical jeopardy. A safety assessment will be available to all Service members, adult military dependents, and civilians who are eligible for SAPR services, even if the victim is not physically located on the installation. The installation commander or the deputy installation commander will identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim, regardless of whether he or she filed a Restricted or Unrestricted Report. Individuals tasked to conduct safety assessments must occupy positions that do not compromise the victim's reporting options. The safety assessment will be conducted as soon as possible, understanding that any delay may impact the safety of the victim.
(1) For Unrestricted Reports, if a victim is assessed to be in a high-risk situation, the assessor will immediately contact the installation commander or his or her deputy, who will immediately stand up a multi-disciplinary High-Risk Response Team in accordance with the guidance in § 105.13. This will be done even if the victim is not physically located on the installation.
(2) For Restricted Reports, if the victim is assessed to be in a high-risk situation, it may qualify as an exception to Restricted Reporting, which is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person. The SARC will be immediately notified. The SARC will disclose the otherwise-protected confidential information only after consultation with the staff judge advocate (SJA) of the installation commander, supporting judge advocate, or other legal advisor concerned, who will advise the SARC as to whether an exception to Restricted Reporting applies, and whether disclosure of personally identifiable information (PII) to a military, other Federal, State or local law enforcement agency is necessary to prevent or mitigate an imminent and serious threat to the health and safety of the victim or another person, in accordance with the guidance in § 105.8. If the SJA determines that the victim is not in a high-risk situation or no serious and imminent threat to the health and safety of the victim or another person exists, then the report will remain Restricted. The SARC will ensure a safety assessment is conducted.
(o) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC or SAPR VA at the time of making the report, or as soon as practicable, of the option to request an Expedited Transfer, in accordance with the procedures for commanders in § 105.9. A Service member may request:
(1) A temporary or permanent Expedited Transfer from their assigned command or installation to a different command or installation; or
(2) A temporary or permanent Expedited Transfer to a different location within their assigned command or installation.
(p) An enlisted Service member or a commissioned officer who made an Unrestricted Report of sexual assault and is recommended for involuntary separation from the Military Services within 1 year of final disposition of his or her sexual assault case may request a general or flag officer (G/FO) review of the circumstances of and grounds for the involuntary separation in accordance with DoDI 1332.14 and DoDI 1332.30.
(1) A Service member requesting this review must submit his or her written request to the first G/FO in the separation authority's chain of command before the separation authority approves the member's final separation action.
(2) Requests submitted after final separation action is complete will not be reviewed by a G/FO, but the separated Service member may apply to the appropriate Service Discharge Review Board or Board of Correction of Military/Naval Records of their respective Service for consideration.
(3) A Service member who submits a timely request will not be separated until the G/FO conducting the review concurs with the circumstances of and the grounds for the involuntary separation.
(q) DoD prohibits granting a waiver for commissioning or enlistment in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault, or a conviction for an attempt of a sexual assault crime, or has ever been required to be registered as a sex offender, in accordance with section 657 of Title 10, Unites States Code.
(r) A Service member whose conviction of rape, sexual assault, forcible sodomy, or an attempt to commit one of the offenses is final, and who is not punitively discharged in connection with such convictions, will be processed for administrative separation for misconduct in accordance with DoDI 1332.14 and DoDI 1332.30.
(s) Information regarding Restricted Reports should only be released to persons authorized to accept Restricted Reports or as authorized by law or DoD regulation. Improper disclosure of confidential communications under Restricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions.
(t) Information regarding Unrestricted Reports should only be released to personnel with an official need to know, or as authorized by law. Improper disclosure of confidential communications under Unrestricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions.
(u) The DoD will retain the DD Forms 2910, “Victim Reporting Preference Statement,” and 2911, “DoD Sexual Assault Forensic Examination (SAFE) Report,” for 50 years, regardless of whether the Service member filed a Restricted or Unrestricted Report as defined in 32 CFR part 103. PII will be protected in accordance with sections 552a of Title 5, United States Code, also known as the Privacy Act of 1974 and 32 CFR part 310 and Public Law 104-191.
(1)
(ii) The DD Form 2911 shall be retained in accordance with DoDI 5505.18. The DD Form 2911 is located at the DoD Forms Management Program Web site at
(iii) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in accordance with DoDI 5505.18 and in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81) as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291). When the forensic examination is conducted at a civilian facility through a memorandum of understanding (MOU) or a memorandum of agreement (MOA) with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD
(iv) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. Personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81), as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291) and DoD regulations.
(2)
(ii) If the victim had a SAFE, the Restricted Report DD Form 2911 will be retained for 50 years, consistent with DoD guidance for the storage of PII. The 50-year time frame for the DD Form 2911 will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed. Restricted Report forms will be retained in a manner that protects confidentiality.
(iii) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in a location designated by the Military Service concerned. When the forensic examination is conducted at a civilian facility through an MOU or an MOA with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the forensic kit. The 5-year time frame will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed.
(iv) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. In the event the report is converted to Unrestricted or an independent investigation is conducted, personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the NDAA for FY 2012 (Public Law 112-81), as amended by section 538 of the NDAA for FY 2015 (Public Law 113-291), and DoD regulations.
(v) Current or former Service members who made a report of sexual assault may contact their respective Service SAPR headquarters office or Service or NG SARCs for help accessing their DD Forms 2910 and 2911. Requests for release of information relating to sexual assaults will be processed by the organization concerned, in accordance with the procedures specified in the sections 552 and 552a of Title 5, United States Code also known as “The Freedom of Information Act” and “The Privacy Act of 1974” respectively.
(w) Service members who file Unrestricted and Restricted Reports of sexual assault and/or their dependents shall be protected from retaliation, reprisal, ostracism, maltreatment, or threats thereof, for filing a report.
(x) An incident report must be submitted in writing within 8 days after an Unrestricted Report of sexual assault has been made in accordance with section 1743 of the NDAA for FY 2014 (Public Law 113-66). This 8-day incident report will only be provided to personnel with an official need to know.
(y) At the time of reporting, victims must be informed of the availability of legal assistance and the right to consult with a Special Victims' Counsel or Victims' Legal Counsel (SVC/VLC) in accordance with section 1044e of Title 10, United States Code.
(z) Consistent with the Presidential Memorandum, “Implementing the Prison Rape Elimination Act,” sexual assaults in DoD confinement facilities involving Service members will be governed by 28 CFR part 115.
(a)
(1) Oversee the DoD SAPRO (see 32 CFR 103.3) in accordance with 32 CFR part 103.
(2) Direct DoD Component implementation of this part in compliance with 32 CFR part 103.
(3) Direct that Director, SAPRO, be informed of and consulted on any changes in DoD policy or the UCMJ relating to sexual assault.
(4) With the Director, SAPRO, update the Deputy Secretary of Defense on SAPR policies and programs on a semi-annual schedule.
(5) Direct the implementation, use, and maintenance of DSAID.
(6) Oversee DoD SAPRO in developing DoD requirements for SAPR education, training, and awareness for DoD personnel consistent with this part.
(7) Appoint a G/FO or Senior Executive Service (SES) equivalent in the DoD as the Director, SAPRO, in accordance with section 1611(a) of the Ike Skelton NDAA for FY 2011, as amended by section 583 of the NDAA for FY 2012.
(8) In addition to the Director, SAPRO, assign at least one military officer from each of the Military Services and a National Guard member in title 10 status in the grade of O-4 or above to SAPRO for a minimum tour length of at least 18 months. Of the military officers assigned to the SAPRO, at least one officer shall be in the grade of O-6 or above in accordance with Public Law 112-81.
(9) Maintain the Defense Sexual Assault Advocate Certification Program (D-SAACP), the DoD-wide certification program (see § 105.3), with a national accreditor to ensure all sexual assault victims are offered the assistance of a SARC or SAPR VA who has obtained this certification in accordance with DoDI 6495.03.
(10) Maintain the DoD Safe Helpline (see § 105.3) to ensure members of the DoD community are provided with the specialized hotline help they need, anytime, anywhere.
(b)
(c)
(1) Establish DoD sexual assault healthcare policies, clinical practice guidelines, related procedures, and standards governing the DoD healthcare programs for victims of sexual assault.
(2) Oversee the requirements and procedures in § 105.11.
(3) Establish guidance to:
(i) Give priority to sexual assault patients at MTFs as emergency cases.
(ii) Require standardized, timely, accessible, and comprehensive medical care at MTFs for eligible persons who are sexually assaulted.
(iii) Require that medical care is consistent with established community standards for the healthcare of sexual assault victims and the collection of
(A) Minimum standards of healthcare intervention that correspond to clinical standards set in the community shall include those established in the U.S. Department of Justice SAFE Protocol. However, clinical guidance shall not be solely limited to this resource.
(B) Prescribe training and certification requirements for sexual assault medical forensic examiners.
(C) Healthcare providers providing care to sexual assault victims in theaters of operation are required to have access to the current version of the U.S. Department of Justice SAFE Protocol.
(iv) Include deliberate planning to strategically position healthcare providers skilled in SAFE at predetermined echelons of care, for personnel with the responsibility of assigning medical assets.
(4) Establish guidance for medical personnel that requires a SARC or SAPR VA to be called in for every incident of sexual assault for which treatment is sought at the MTFs, regardless of the reporting option.
(5) Establish guidance in drafting MOUs or MOAs with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims in accordance with § 105.11. As part of the MOU or MOA, a SARC or SAPR VA will be notified for every incident of sexual assault.
(6) Establish guidelines and procedures for the Surgeon Generals of the Military Departments to require that an adequate supply of resources, to include personnel, supplies, and SAFE Kits, is maintained in all locations where SAFEs may be conducted by DoD, including deployed locations. Maintaining an adequate supply of SAFE Kits is a shared responsibility of the ASD(HA) and Secretaries of the Military Departments.
(7) In accordance with § 105.14, establish minimum standards for initial and refresher SAPR training required for all personnel assigned to MTFs and for specialized training for responders and healthcare providers.
(d)
(1) Provide legal advice and assistance on proposed policies, DoD issuances, proposed exceptions to policy, and review of all legislative proposals affecting mission and responsibilities of the SAPRO.
(2) Inform the USD(P&R) of any sexual assault related changes to the UCMJ.
(e)
(1) Establish guidance and provide oversight for the investigations of sexual assault in the DoD to meet the SAPR policy and training requirements of this part.
(2) Inform the USD(P&R) of any changes relating to sexual assault investigation policy or guidance.
(3) DoD IG shall collaborate with SAPRO in the development of investigative policy in support of sexual assault prevention and response.
(f)
(1) Establish SAPR policy and procedures to implement this part.
(2) Coordinate all Military Service SAPR policy changes with the USD(P&R).
(3) Establish and publicize policies and procedures regarding the availability of a SARC.
(i) Require that sexual assault victims receive appropriate and responsive care and that the SARC serves as the single point of contact for coordinating care for victims.
(ii) Direct that the SARC or a SAPR VA be immediately called in every incident of sexual assault on a military installation. There will be situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entity. In these cases, the MOU or MOA will require that a SARC be notified as part of the MOU or MOA
(iii) When a victim has a temporary change of station or PCS or is deployed, direct that SARCs immediately request victim consent to transfer case management documents. Require the SARC to document the consent to transfer in the DD Form 2910. Upon receipt of victim consent, SARCs shall expeditiously transfer case management documents to ensure continuity of care and SAPR services. All Federal, DoD, and Service privacy regulations must be strictly adhered to. However, when the SARC has a temporary change of station or PCS or is deployed, no victim consent is required to transfer the case to the next SARC. Every effort must be made to inform the victim of the case transfer. If the SARC has already closed the case and terminated victim contact, no other action is needed. See § 105.9 for Expedited Transfer protocols and commander notification procedures.
(iv) Require the assignment of at least one full-time SARC and one full-time SAPR VA to each brigade or equivalent unit in accordance with section 584 of the NDAA for FY 2012. Additional full-time or part-time SARCs and SAPR VAs may be assigned as necessary based on the demographics or needs of the unit in accordance with the NDAA for FY 2012. Only Service members or DoD civilians will serve as SARCs and SAPR VAs in accordance with section 584 of the NDAA for FY 2012.
(v) Sexual assault victims shall be offered the assistance of a SARC and/or SAPR VA who has been credentialed by the D-SAACP. D-SAACP certification requirements are contained in the DD Form 2950, “Department of Defense Sexual Assault Advocate Certification Program Application Packet,” and DTM 14-001.
(vi) Issue guidance to ensure that equivalent standards are met for SAPR where SARCs are not installation-based but instead work within operational and/or deployable organizations.
(4) Establish guidance to meet the SAPR training requirements for legal, MCIO, DoD law enforcement, responders and other Service members in § 105.14.
(5) Establish standards and periodic training for healthcare personnel and healthcare providers regarding the Unrestricted and Restricted Reporting options of sexual assault in accordance with § 105.14. Enforce eligibility standards for healthcare providers to perform SAFEs.
(6) Require first responders (see § 105.3) to be identified upon their assignment and trained, and require that their response times be continually monitored by their commanders to ensure timely response to reports of sexual assault. The response for MCIOs is governed by DoDI 5505.19. See § 105.14 for training requirements. Ensure established response time is based on local conditions but reflects that sexual assault victims will be treated as emergency cases.
(7) Upon request, submit a copy of SAPR training programs or SAPR training elements to USD(P&R) through SAPRO for evaluation of consistency and compliance with DoD SAPR training standards in this part and current SAPR core competencies and learning objectives. The Military Departments will correct USD(P&R) identified DoD SAPR policy and training standards discrepancies.
(8) Establish policy that ensures commanders are accountable for implementing and executing the SAPR
(9) Require the assignment of at least one full-time sexual assault medical forensic examiner to each MTF that has an emergency department that operates 24 hours per day. Additional sexual assault medical forensic examiners may be assigned based on the demographics of the patients who utilize the MTF.
(10) In cases of MTFs that do not have an emergency department that operates 24 hours per day, require that a sexual assault medical forensic examiner be made available to a patient of the facility through an MOU or MOA with local private or public sector entities and consistent with U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents”, when a determination is made regarding the patient's need for the services of a sexual assault medical forensic examiner. The MOU or MOA will require that SARCs or SAPR VAs are contacted and that SAFE Kits are collected and preserved in accordance with § 105.12.
(11) Establish guidance to direct that all Unrestricted Reports of violations (to include attempts) of sexual assault and non-consensual sodomy, as defined in title 10, U.S.C., against adults are immediately reported to the MCIO.
(i) A unit commander who receives an Unrestricted Report of an incident of sexual assault shall immediately refer the matter to the appropriate MCIO. A unit commander shall not conduct internal, command-directed investigations on sexual assault allegations (
(ii) Commander(s) of the Service member(s) who is a subject of a sexual assault allegation shall, as soon as possible, provide in writing all disposition data, to include any administrative or judicial action taken, if any, stemming from the sexual assault investigation to the MCIO.
(iii) Once the investigation is completed, MCIOs shall submit case disposition data that satisfies the reporting requirements for DSAID identified in § 105.15 and the annual reporting requirements in § 105.16.
(12) Establish SAPR policy that requires commanders to be responsive to a victim's desire to discuss his or her case with the installation commander tasked by the Military Service with oversight responsibility for the SAPR program in accordance with 32 CFR part 103.
(13) Establish standards for command assessment of organizational SAPR climate, including periodic follow-up assessments. In accordance with section 572 of the NDAA for FY 2013, these standards will require that commanders conduct such climate assessments within 120 days of assuming command and annually thereafter.
(14) As a shared responsibility with ASD(HA), direct installation commanders to maintain an adequate supply of SAFE Kits in all locations where SAFEs are conducted, including deployed locations. Direct that Military Service SAPR personnel, to include medical personnel, are appropriately trained on protocols for the use of the SAFE Kit and comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures.
(15) Establish procedures that require, upon seeking assistance from a SARC, SAPR VA, MCIO, the VWAP, or trial counsel, that each Service member who reports that she or he has been a victim of a sexual assault be informed of and given the opportunity to:
(i) Consult with SVC/VLC, legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct (see § 105.3), to consult with defense counsel.
(A) When the alleged perpetrator is the commander or in the victim's chain of command, such victims shall be informed of the opportunity to go outside the chain of command to report the offense to other commanding officers (CO) or an Inspector General. Victims shall be informed that they can also seek assistance from the DoD Safe Helpline (see § 105.3).
(B) The victim shall be informed that legal services are optional and may be declined, in whole or in part, at any time.
(C) Commanders shall require that information and services concerning the investigation and prosecution be provided to victims in accordance with VWAP procedures in DoDI 1030.2.
(ii) Have a SARC or SAPR VA present when law enforcement or trial counsel interviews the victim.
(iii) Have a SARC or SAPR VA, counsel for the government, or SVC or VLC present, when defense counsel interviews the victim, in accordance with Article 46 of the UCMJ (section 846 of Title 10 U.S.C.)
(16) Establish procedures to ensure that in the case of a general or special court-martial the trial counsel causes each qualifying victim to be notified of the opportunity to receive a copy of the record of trial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court, classified information, or other portions of the record the release of which would unlawfully violate the privacy interests of any party, and without a requirement to include matters attached to the record under Rule for Courts-Martial (R.C.M.) 1103(b)(3) in the Manual for Courts-Martial, United States. A qualifying victim is an individual named in a specification alleging an offense under Articles 120, 120b, 120c, or 125 of the UCMJ (sections 920, 920b, 920c, or 925 of title 10, U.S.C.), or any attempt to commit such offense in violation of Article 80 of the UCMJ (section 880 of title 10, U.S.C.), if the court-martial resulted in any finding to that specification. If the victim elects to receive a copy of the record of proceedings, it shall be provided without charge and within a timeframe designated by regulations of the Military Department concerned. The victim shall be notified of the opportunity to receive the record of the proceedings in accordance R.C.M. 1103(g)(3)(C) in Manual for Courts-Martial, United States.
(17) Require that a completed DD Form 2701, “Initial Information for Victims and Witnesses of Crime,” be distributed to the victim as required by paragraph 6.1 of DoDI 1030.2. (DD Form 2701 may be obtained via the Internet at
(18) Establish procedures to protect Service member victims of sexual assault and/or their dependents from retaliation, ostracism, maltreatment and reprisal in accordance with section 1709 of the NDAA for FY 2014, DoDD 7050.06
(19) Require SARCs and SAPR VAs to advise victims who reported a sexual assault or sought mental health treatment for sexual assault of the opportunity to communicate with a G/FO regarding issues related to their military career that the victim believes are associated with the sexual assault.
(20) Establish procedures to require commanders to protect the SARC and SAPR VA from retaliation, reprisal, ostracism, or maltreatment related to the execution of their duties and responsibilities.
(21) Establish procedures to require commanders to protect witnesses and bystanders who intervene to prevent sexual assaults or who report sexual assaults, from retaliation, reprisal, ostracism, or maltreatment in accordance with section 1709 of the NDAA for FY 2014.
(22) Require specialized training for all supervisors (officer, enlisted, civilian) down to the most junior supervisor that explains:
(i) That all supervisors in the victim's chain of command, officer and enlisted, are required when they become aware of allegations of retaliation, reprisal, ostracism, or maltreatment, to take appropriate measures to protect the victim from retaliation, reprisal, coercion, ostracism, and maltreatment in Unrestricted Reports.
(ii) What constitutes retaliation, reprisal, ostracism, and maltreatment in accordance with Service regulations and Military Whistleblower Protections and procedures for reporting allegations of reprisal in accordance with DoDD 7050.06.
(iii) The resources available for victims (listed in § 105.8) to report instances of retaliation, reprisal, ostracism, maltreatment, or sexual harassment or to request a transfer or MPO.
(iv) That victims who reported a sexual assault or sought mental health treatment for sexual assault, have the opportunity to communicate with the G/FO regarding issues related to their military career that the victim believes are associated with the sexual assault.
(23) Establish Military Service-specific guidance to ensure collateral misconduct is addressed in a manner that is consistent and appropriate to the circumstances, and at a time that encourages continued victim cooperation.
(24) Establish expedited transfer procedures of victims of sexual assault in accordance with §§ 105.4(n) and 105.9.
(25) Appoint a representative to the SAPR IPT in accordance with § 105.7, and provide chairs or co-chairs for working groups, when requested. Appoint a representative to SAPRO oversight teams upon request.
(26) Provide quarterly and annual reports of sexual assault involving Service members to Director, SAPRO, to be consolidated into the annual Secretary of Defense report to Congress in accordance with 32 CFR part 103 and section 1631(d) of Public Law 111-84. (See § 105.16 for additional information about reporting requirements.)
(27) Support victim participation in semi-annual Survivor Meetings with the Director of SAPRO.
(28) Support victim participation in the Survivor Experience Survey referred to in § 105.16, conducted by the Defense Manpower Data Center (DMDC).
(29) Provide budget program and obligation data, as requested by the DoD SAPRO.
(30) Require that reports of sexual assault be entered into DSAID through MCIO case management systems or by direct data entry by SARCs and legal officers. Establish procedures to regularly review and assure the quality of data entered into DSAID.
(i) Data systems that interface with DSAID shall be modified and maintained to accurately provide information to DSAID.
(ii) Only SARCs who are credentialed (and maintain that credential) through D-SAACP and legal officer appointed by their Military Service shall be permitted access to enter sexual assault reports and case outcome data into DSAID.
(31) Provide Director, SAPRO, a written description of any sexual assault related research projects contemporaneous with commencing the actual research. When requested, provide periodic updates on results and insights. Upon conclusion of such research, a summary of the findings will be provided to DoD SAPRO as soon as practicable.
(32) Establish procedures for supporting the DoD Safe Helpline in accordance with the USD(P&R) Memorandum, “Guidelines for the DoD Safe Helpline”, which provides guidance for the referral database, providing a timely response to victim feedback, and publicizing the DoD Safe Helpline to SARCs, SAPR VAs, Service members, and to persons at military correctional facilities.
(i) Utilize the DoD Safe Helpline as the sole DoD hotline to provide crisis intervention, facilitate victim reporting through connection to the nearest SARC, and other resources as warranted.
(ii) The DoD Safe Helpline does not replace local base and installation SARC or SAPR VA contact information.
(33) Establish procedures to implement SAPR training in accordance with § 105.14, to include explaining the eligibility for SVC or VLC for individuals making Restricted and Unrestricted Reports of sexual assault, and the types of legal assistance authorized to be provided to the sexual assault victim in accordance with section 1565b and 1004e of Title 10 U.S.C. Explain that the nature of the relationship between a SVC or VLC and a victim in the provision of legal advice and assistance will be the relationship between an attorney and client, in accordance with section 1044e of Title 10 U.S.C. Training should be provided by subject matter experts on the topics outlined in § 105.14.
(34) Require that reports of sexual assaults are provided to the Commanders of the Combatant Commands for their respective area of responsibility on a quarterly basis, or as requested.
(35) For CMGs:
(i) Require the installation commander or the deputy installation commander chair the multi-disciplinary CMG (see § 105.13) on a monthly basis to review individual cases of Unrestricted Reporting of sexual assault, facilitate monthly victim updates, direct system coordination, accountability, and victim access to quality services. This responsibility will not be delegated.
(ii) Require that the installation SARC (in the case of multiple SARCs on an installation, then the Lead SARC) serve as the co-chair of the CMG. This responsibility will not be delegated.
(iii) If the installation is a joint base or if the installation has tenant commands, the commander of the tenant organization and their designated Lead SARC shall be invited to the CMG meetings when a Service member in his or her unit or area of responsibility is the victim of a sexual assault. The commander of the tenant organization shall provide appropriate information to the host commander, to enable the host commander to provide the necessary supporting services.
(iv) The Secretaries of the Military Departments shall issue guidance to ensure that equivalent standards are met for case oversight by CMGs in situations where SARCs are not installation-based but instead work within operational and/or deployable organizations.
(36) Establish document retention procedures for Unrestricted and Restricted Reports of sexual assault in accordance with § 105.4(t).
(37) When drafting MOUs or MOAs with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims, require commanders to include the following provisions:
(i) Notify the SARC or SAPR VA.
(ii) Local private or public sector providers shall have processes and procedures in place to assess that local community standards meet or exceed those set forth in the U.S. Department of Justice SAFE Protocol as a condition of the MOUs or MOAs.
(38) Comply with collective bargaining obligations, if applicable.
(39) Provide SAPR training and education for civilian employees of the military departments in accordance with Section 585 of Public Law 112-81.
(40) In accordance with Section 572 of Public Law 112-239, establish a record on the disposition of any Unrestricted Report of rape, sexual assault, forcible sodomy, or an attempt to commit these offenses involving a member of the Military Services, whether such disposition is court-martial, nonjudicial punishment, or other administrative action.
(i) The record of the disposition of an Unrestricted Report of sexual assault will, as appropriate, include information regarding:
(A) Documentary information (
(B) Punishment imposed, if any, including the sentencing by judicial or nonjudicial means, including incarceration, fines, restriction, and extra duty as a result of a military court-martial, federal or local court, and other sentencing, or any other punishment imposed.
(C) Adverse administrative actions, if any, taken against the subject of the investigation.
(D) Any pertinent referrals made for the subject of the investigation, offered as a result of the incident, such as drug and alcohol counseling and other types of counseling or intervention.
(ii) The disposition records will be retained for a period of not less than 20 years.
(A) Documentary information (
(B) Punishment imposed by nonjudicial or judicial means, adverse administrative actions, any pertinent referrals made for the subject of the investigation, and information from the records that satisfies the reporting requirements established in section 1631 of Public Law 111-383 will be incorporated into DSAID.
(41) In accordance with DoD Directive 1350.2, require that the commander of each military command and other units specified by the Secretary of Defense for purposes of the policy will conduct, within 120 days after the commander assumes command and at least annually thereafter while retaining command, a climate assessment of the command or unit for purposes of preventing and responding to sexual assaults.
(i) The climate assessment will include an opportunity for members of the Military Services to express their opinions regarding the manner and extent to which their leaders, including commanders, respond to allegations of sexual assault and complaints of sexual harassment and the effectiveness of such response.
(ii) The compliance of commanding officers in conducting organizational climate assessments in accordance with section 572 of Public Law 112-239 as most recently amended by section 1721 of Public Law 113-291 must be verified and tracked.
(42) Establish and publicize policies and procedures for reporting a sexual assault that will clearly explain both reporting options and who can receive Restricted Reports. Mandate the posting and wide dissemination of information about resources available to report and respond to sexual assaults, including the establishment of hotline phone numbers and Internet Web sites available to all members of the Military Services.
(43) Mandate a general education campaign to notify members of the Military Services of the authorities available in accordance with chapter 79 of title 10, U.S.C., for the correction of military records when a member experiences any retaliatory personnel action for making a report of sexual assault or sexual harassment.
(44) Require the SARCs and SAPR VAs to collaborate with designated Special Victims Investigation and Prosecution (SVIP) Capability personnel during all stages of the investigative and military justice process in accordance with DoDI 5505.19, to ensure an integrated capability, to the greatest extent possible, in accordance with DTM 14-003.
(45) Require that, if a complaint of a sex-related offense is made against a Service member and he or she is convicted by court-martial or receives non-judicial punishment or punitive administrative action for that offense, a notation to that effect will be placed in the Service member's personnel service record, regardless of his or her grade.
(i) A notation may NOT be placed in the restricted section of the Service member's personnel service record.
(ii) “Sex-related offenses” include a violation of Articles 120, 120a, 120b, 120c, or 125 of the UCMJ ((sections 920, 920a, 920b, 920c, or 925 of title 10 U.S.C.) or an attempt to commit these offenses punishable under Article 80 of the UCMJ (section 880 of title 10 U.S.C.).
(iii) The commanding officer of a facility, installation, or unit to which a Service member is permanently assigned or transferred will review the history of sex-related offenses as documented in the Service member's personnel service record. The purpose of this review is for commanders to familiarize themselves with such history of the Service member.
(iv) The notation and review requirement should not limit or prohibit a Service member's capacity to challenge or appeal the placement of a notation, or location of placement of a notation, in his or her personnel service record in accordance with otherwise applicable service procedures.
(46) In accordance with the requirements of section 1743 of Public Law 113-66 require the designated commander to submit a written incident report no later than 8 days after whichever happens first:
(i) An Unrestricted Report of sexual assault has been made to a SARC or SAPR VA through a DD Form 2910; or
(ii) An independent investigation has been initiated by an MCIO.
(47) Require timely access to a SARC or SAPR VA by any member of the Reserve Component in accordance with § 105.2.
(48) Require that the Military Service Academies include in their curricula substantive course work that addresses honor, respect, character development, leadership, and accountability, as they pertain to the issue of preventing sexual assault in the Military Services and providing the appropriate response to sexual assault when it occurs.
(i) In addition to the substantive coursework in academy curricula, training will be provided within 14 days after the initial arrival of a new cadet or midshipman at the Military Service Academies and repeated annually thereafter. Training will be conducted in the manner described in § 105.15, using adult learning methods.
(ii) Such training will include, at a minimum, a brief history of the problem of sexual assault in the Military Services, a definition of sexual assault, information relating to reporting a sexual assault, victims' rights, and dismissal and dishonorable discharge for offenders.
(49) Ensure that the provisions of title 17 of Public Law 113-66 apply to the Military Service Academies as required by section 552 of Public Law 113-291.
(50) Provide notice to a Service member, whenever he or she is required to complete Standard Form (SF) 86,
(i) The individual is a victim of a sexual assault; and
(ii) The consultation occurred with respect to an emotional or mental health condition strictly in relation to the sexual assault.
(51) Require the installation SARC and the installation FAP staff to coordinate when a sexual assault occurs as a result of domestic abuse, domestic violence, or involves child abuse, to ensure the victim is directed to FAP.
(52) Require commanders to direct SARCs to provide information on incidents of sexual assault for inclusion in the Commander's Critical Information Requirements (CCIR) report. CCIR reportable incidents are those meeting criteria as determined by the Secretary of Defense.
(53) Establish procedures to implement minimum standards for the qualifications necessary to be selected, trained, and certified for assignment as a SAPR Program Manager in accordance with USD(P&R) Memorandum, “Certification Standards for Department of Defense Sexual Assault Prevention and Response Program Managers.”
(54) Establish a confidential process, utilizing boards for the correction of military records of the Military Departments by which a sexual assault victim during service in the Military may challenge the terms or the characterization of the discharge or separation on the grounds that the terms or characterization were adversely affected by being a sexual assault victim in accordance with section 547 of Public Law 113-291.
(g)
(h)
(i)
(1) Require that a SAPR capability provided by the Executive Agent (see § 105.3) is incorporated into operational planning guidance in accordance with 32 CFR part 103 and this part.
(2) Require the establishment of an MOU, MOA, or equivalent support agreement with the Executive Agent in accordance with 32 CFR part 103 and this part and requires at a minimum:
(i) Coordinated efforts and resources, regardless of the location of the sexual assault, to direct optimal and safe administration of Unrestricted and Restricted Reporting options with appropriate protection, medical care, counseling, and advocacy.
(A) Ensure a 24 hour per day, 7 day per week response capability. Require first responders to respond in a timely manner.
(B) Response times shall be based on local conditions; however, sexual assault victims shall be treated as emergency cases.
(ii) Notice to SARC of every incident of sexual assault on the military installation, so that a SARC or SAPR VA can respond and offer the victim SAPR services. In situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entities, as part of the MOU or MOA, the SARC or SAPR VA shall be notified and shall respond.
The revisions and additions read as follows:
(a) * * *
(7) Develop oversight metrics to measure compliance and effectiveness of SAPR training, sexual assault awareness, prevention, and response policies and programs. Collect and maintain data in accordance with these metrics, analyze data, and make recommendations regarding SAPR policies and programs to the USD(P&R) and the Secretaries of the Military Departments.
(16) Act as the DoD liaison between the DoD and other federal and State agencies on programs and efforts relating to sexual assault prevention and response.
(17) Oversee development of strategic program guidance and joint planning objectives for resources in support of the sexual assault prevention and response program, and make recommendations on modifications to policy, law, and regulations needed to ensure the continuing availability of such resources.
(18) Quarterly include Military Service Academies as a SAPR IPT standard agenda item, and semi-annually meet with the academy superintendents to facilitate oversight of the implementation of SAPR programs.
(19) Develop and administer standardized and voluntary surveys for
(21) Participate in the DoD Victim Assistance Leadership Council in accordance with DoDI 6400.07.
(22) Maintain the SAPRO awards program recognizing SARCS and/or SAPR VAs or SAPR programs within the Military Departments, and with consent of the Secretary of the Department of Homeland Security, the SARCS and/or SAPR VAs of the Department of Homeland Security.
(b) * * *
(1) * * *
(iii) Director, Air Force Sexual Assault Prevention and Response Program.
(2) * * *
(ii) Serve as the implementation and oversight arm of the DoD SAPR Program. Coordinate policy and review the DoD's SAPR policies and programs consistent with this part and 32 CFR part 103, as necessary. Monitor the progress of program elements, to include DoD SAPR Strategic Plan tasks, DoD Sexual Assault Prevention Strategy tasks, and NDAA implementation for adult sexual assault related issues.
The revisions and additions read as follows:
(a) * * *
(1)
(2)
(i) Only the SARC, SAPR VA, and healthcare personnel are designated as authorized to accept a Restricted Report. Healthcare personnel, to include psychotherapist and other personnel listed in Military Rules of Evidence (MRE) 513 pursuant to the Manual for Courts-Martial, United States, who received a Restricted Report (meaning that a victim wishes to file a DD Form 2910 or have a SAFE) shall contact a SARC or SAPR VA in accordance with requirements in § 105.11, to assure that a victim is offered SAPR services and so that a DD Form 2910 can be completed and retained.
(iii) In the course of otherwise privileged communications with a chaplain, SVC/VLC, or legal assistance attorney, a victim may indicate that he or she wishes to file a Restricted Report. If this occurs, a chaplain, SVC/VLC, and legal assistance attorney shall, with the victim's consent, facilitate contact with a SARC or SAPR VA to ensure that a victim is offered SAPR services and so that a DD Form 2910 can be completed. A chaplain, SVC/VLC, or legal assistance attorney cannot accept a Restricted Report.
(iv) A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between a victim and a SARC and SAPR VA, in a case arising under the UCMJ, if such communication
(v) A sexual assault victim certified under the personnel reliability program (PRP) is eligible for both the Restricted and Unrestricted Reporting options. If electing Restricted Reporting, the victim is required to advise the competent medical authority of any factors that could have an adverse impact on the victim's performance, reliability, or safety while performing PRP duties. If necessary, the competent medical authority will inform the certifying official that the person in question should be suspended or temporarily decertified from PRP status, as appropriate, without revealing that the person is a victim of sexual assault, thus preserving the Restricted Report.
(3) * * *
(ii) The victim's decision not to participate in an investigation or prosecution will not affect access to SARC and SAPR VA services, medical and psychological care, or services from an SVC or VLC. These services shall be made available to all eligible sexual assault victims.
(iii) If a victim approaches a SARC, or SAPR VA, or healthcare provider and begins to make a report, but then changes his or her mind and leaves without signing the DD Form 2910 (the form where the reporting option is selected), the SARC, SAPR VA, or healthcare provider is not under any obligation or duty to inform investigators or commanders about this report and will not produce the report or disclose the communications surrounding the report. If commanders or law enforcement ask about the report, disclosures can only be made in accordance with exceptions to the MRE 514 or MRE 513 privilege, as applicable.
(4)
(6)
(ii) The timing of filing a Restricted Report is crucial. In order to take advantage of the Restricted Reporting option, the victim must file a Restricted Report by signing a DD Form 2910 before the SARC is informed of an ongoing independent investigation of the sexual assault.
(A) If a SARC is notified of an ongoing independent investigation and the victim has not signed a DD Form 2910 electing Restricted Report, the SARC must inform the victim that the option to file a Restricted Report is no longer available. However, all communications between the victim and the victim advocate will remain privileged except for the application of an exception to Restricted Reporting
(B) If an independent investigation begins after the victim has formally elected Restricted Reporting (by signing the DD Form 2910), the independent investigation has no impact on the victim's Restricted Report and the victim's communications and SAFE Kit remain confidential, to the extent authorized by law and DoD regulations.
(7)
(8)
(b)
(d)
(2)
(i) Even if the victim chooses not to convert to an Unrestricted Report, or provide PII, the non-PII information provided by the SARC makes the installation commander aware that a sexual assault incident was reported to have occurred. Restricted Reporting gives the installation commander a clearer picture of the reported sexual assaults within the command. The installation commander can then use the information to enhance preventive measures, to enhance the education and training of the command's personnel, and to scrutinize more closely the organization's climate and culture for contributing factors.
(ii) Neither the installation commander nor DoD law enforcement may use the information from a Restricted Report for investigative purposes or in a manner that is likely to discover, disclose, or reveal the identities of the victims unless an exception to Restricted Reporting applies. Improper disclosure of Restricted Reporting information may result in disciplinary action or other adverse personnel or administrative actions.
(e) * * *
(2) The following exceptions to the prohibition against disclosures of Restricted Reporting authorize a disclosure of a Restricted Report only when the SJA consultation described as provided in paragraphs (f) and (g) of this section has occurred and only if one or more of the following conditions apply:
(ii) Disclosure of the personally identifiable information of the military victim or their adult dependent is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person. For example, multiple reports involving the same alleged offender (repeat offender) could meet this criterion. See similar safety and security exceptions in MRE 514, U.S. Department of Defense, Manual for Courts-Martial, United States.
(iii) Required for fitness for duty or disability determinations. This disclosure is limited to only the information necessary to process duty or disability determinations for Service members. Disclosure of a Restricted Report under these circumstances does not change the nature of the victim's Restricted Report, nor does it create an obligation for reporting to law enforcement or command for investigation.
(4) The SARC or SAPR VA shall inform the victim when a disclosure in accordance with the exceptions in this section is made. Whenever possible, the victim should be notified in advance of the disclosure.
(5) If a SARC, SAPR VA, or healthcare personnel make an unauthorized disclosure of a confidential communication, that person is subject to disciplinary action. Unauthorized disclosure has no impact on the status of the Restricted Report. All Restricted Reporting information is still confidential and protected, to the extent authorized by law and this part. However, unauthorized or inadvertent disclosures made to a commander or law enforcement shall result in notification to the MCIO.
(g) Resources for victims to report retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request an expedited/safety transfer or military protective order (MPO)/civilian protective order (CPO). SARCs and SAPR VAs must inform victims of the resources available to report instances of retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request a transfer or MPO. If the allegation is criminal in nature and the victim filed an Unrestricted Report, the crime should be immediately reported to an MCIO, even if the crime is not something normally reported to an MCIO (
(1) A SARC or SAPR VA or SVC/VLC.
(2) A SARC on a different installation, which can be facilitated by the Safe Helpline.
(3) Their immediate commander.
(4) A commander outside their chain of command.
(5) Service personnel to invoke their Service-specific reporting procedures regarding such allegations in accordance with AD 2014/AFI 36-2909/SECNAVINST 5370.7D.
(6) Service Military Equal Opportunity (MEO) representative to file a complaint of sexual harassment.
(7) A G/FO if the retaliation, reprisal, ostracism, or maltreatment involves the administrative separation of victims within 1 year of the final disposition of their sexual assault case. A victim may request that the G/FO review the separation in accordance with DoDI 1332.14 (enlisted personnel) or DoDI 1332.30 (commissioned officers).
(8) A G/FO if the victim believes that there has been an impact on their military career because they reported a sexual assault or sought mental health treatment for sexual assault that the victim believes is associated with the sexual assault. The victim may discuss the impact with the G/FO.
(9) An SVC or VLC, trial counsel and VWAP, or a legal assistance attorney to facilitate reporting with a SARC or SAPR VA.
(10) Service personnel to file a complaint of wrongs in accordance with Article 138 of the UCMJ (section 938 of title 10 U.S.C.)
(11) IG DoD, invoking whistle-blower protections in accordance with DoDD 7050.06.
(12) Commander or SARC to request an Expedited Transfer.
(13) Commander or SARC to request a safety transfer or an MPO and/or CPO, if the victim is in fear for her or his safety.
(14) The MCIO, if the allegation is of an act that is criminal in nature and the victim filed an Unrestricted Report. The allegation should immediately be reported to an MCIO.
(a)
(b)
(1) Develop guidelines to establish a 24 hour, 7 day per week sexual assault response capability for their locations, including deployed areas. For SARCs that operate within deployable commands that are not attached to an installation, senior commanders of the deployable commands shall ensure that equivalent SAPR standards are met. All SARCs will have direct and unimpeded contact and access to the installation commander (see § 105.3), and the immediate commander of both the Service member victim and alleged Service member offender. The installation commander will have direct contact with the SARC; this responsibility will not be delegated.
(2) Require all supervisors, officer and enlisted, down to the most junior supervisor, to receive specialized training that explains:
(i) That all personnel in the victim's chain of command, officer and enlisted, are required when they become aware of allegations of retaliation, reprisal, ostracism, or maltreatment to take appropriate measures to protect the victim.
(ii) What constitutes retaliation, reprisal, ostracism, and maltreatment in accordance with AD 2014-20/AFI-36-2909/SECNAVINST 53.7D, and Military Whistleblower Protections and procedures for reporting allegations of reprisal in accordance with DoDD 7050.06.
(iii) The resources available for victims (listed in § 105.8) to report instances of retaliation, reprisal, ostracism, maltreatment, or sexual harassment or to request a transfer or MPO.
(iv) That victims who reported a sexual assault or sought mental health treatment for sexual assault have the opportunity to discuss issues related to their military career with the G/FO that the victim believes are associated with the sexual assault.
(3) Ensure that a safety assessment will be available to all Service members, adult military dependents, and civilians who are eligible for SAPR services, even if the victim is not physically located on the installation.
(i) Identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim, regardless of whether he or she filed a Restricted or Unrestricted Report. Individuals tasked to conduct safety assessments must occupy positions that do not compromise the victim's reporting options.
(ii) The safety assessment will be conducted as soon as possible.
(c)
(1) Respond appropriately to incidents of sexual assault. Use the “Commander's 30-Day Checklist for Unrestricted Reports” to facilitate the response to the victim and an alleged offender, and an appropriate response for a sexual assault within a unit. The “Commander's 30-Day Checklist for Unrestricted Reports” is located in the SAPR Policy Toolkit, on
(2) Meet with the SARC within 30 days of taking command for one-on-one SAPR training. The training shall include a trends brief for unit and area of responsibility, the confidentiality and “official need to know” requirements for both Unrestricted and Restricted Reporting, the requirements of 8-day incident report in accordance with section 1743 of Public Law 113-66. The Sexual Assault Incident Response Oversight Report template is located in the SAPR Policy Toolkit, on
(3) Require the SARC to:
(i) Be notified of every incident of sexual assault involving Service members or persons covered in this part, in or outside of the military installation when reported to DoD personnel. When notified, the SARC or SAPR VA shall respond to offer the victim SAPR services. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.
(A) In Restricted Reports, the SARC shall be notified by the healthcare personnel in accordance with § 105.11 or the SAPR VA.
(B) In Unrestricted Reports, the SARC shall be notified by the DoD responders or healthcare personnel.
(ii) Provide the victim's installation commander and immediate commander the information regarding an Unrestricted Report within 24 hours of an Unrestricted Report of sexual assault.
(iii) If the victim is a civilian and the alleged offender is a Service member, the immediate commander of that Service member shall be provided relevant information, to include any SAPR services made available to the civilian. The MCIO provides the commander of the alleged offender with information, to the extent available, regarding the victim, and SAPR services offered, if any, to file the 8-day incident report in accordance with section 1743 of Public Law 113-66.
(iv) Provide the installation commander with non-PII, as defined in § 105.3, within 24 hours of a Restricted Report of sexual assault. This notification may be extended to 48 hours after the report of the incident if there are extenuating circumstances in the deployed environment. Command and installation demographics shall be taken into account when determining the information to be provided. To ensure oversight of victim services for Restricted Report cases, the SARC will confirm in his or her report that the victim has been offered SAPR advocacy services; received explanation of the notifications in the DD Form 2910; offered medical and mental health care; and informed of eligibility for a Special Victim's Counsel or Victim's Legal Counsel. An 8-day incident report is not required for Restricted Reports in accordance with section 1743 of Public Law 113-66.
(v) Be supervised and evaluated by the installation commander or deputy installation commander in the performance of SAPR procedures in accordance with § 105.10.
(vi) Receive SARC training to follow procedures in accordance with § 105.10. Upon implementation of the D-SAACP, standardized criteria for the selection and training of SARCs and SAPR VAs shall include the application criteria in DD Form 2950 and comply with specific Military Service guidelines and certification requirements.
(vii) Follow established procedures to store the DD Form 2910 pursuant to Military Service regulations regarding the storage of documents with PII.
(4) Evaluate healthcare personnel pursuant to Military Service regulation in the performance of SAPR procedures as described in § 105.11.
(5) Require adequate supplies of SAFE Kits be maintained by the active component. The supplies shall be routinely evaluated to guarantee adequate numbers to meet the need of sexual assault victims.
(6) Require DoD law enforcement and healthcare personnel to comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures. Modified procedures applicable in cases of Restricted Reports of sexual assault are explained in § 105.12.
(7) Require that a CMG is conducted on a monthly basis in accordance with § 105.13.
(i) Chair or attend the CMG, in accordance with the requirements of § 105.13. Direct the required CMG members to attend.
(ii) Commanders shall provide victims of a sexual assault who filed an Unrestricted Reports monthly updates regarding the current status of any ongoing investigative, medical, legal, status of an Expedited Transfer request or any other request made by the victim, or command proceedings regarding the sexual assault until the final disposition (see § 105.3) of the reported assault, and to the extent permitted pursuant to DoDI 1030.2, Public Law 104-191,
(8) Ensure that resolution of Unrestricted Report sexual assault cases shall be expedited.
(i) A unit commander who receives an Unrestricted Report of a sexual assault shall immediately refer the matter to the appropriate MCIO, to include any offense identified by the UCMJ. A unit commander shall not conduct internal command directed investigations on sexual assault (
(ii) The final disposition of a sexual assault shall immediately be reported by the accused's commander to the assigned MCIO. Dispositions on cases referred by MCIOs to other DoD law enforcement agencies shall be immediately reported to the MCIOs upon their final disposition. When requested by MCIOs, commanders shall provide final disposition of sexual assault cases. Service legal officers are responsible for entering and approving the final case disposition input into DSAID and notifying the SARC of the disposition results.
(9) Appoint a point of contact to serve as a formal liaison between the installation SARC and the installation FAP staff (or civilian domestic resource if FAP is not available for a Reserve Component victim) to direct coordination when a sexual assault occurs within a domestic relationship or involves child abuse.
(10) Ensure appropriate training of all military responders be directed and documented in accordance with training standards in § 105.14. Direct and document appropriate training of all military responders who attend the CMG.
(11) Identify and maintain a liaison with civilian sexual assault victim resources. Where necessary, it is strongly recommended that an MOU or MOAs with the appropriate local authorities and civilian service organizations be established to maximize cooperation, reciprocal reporting of sexual assault information, and consultation regarding jurisdiction for the prosecution of Service members involved in sexual assault, as appropriate.
(12) In accordance with section 1565b(a)(2) of title 10 U.S.C., a Service member or a dependent who is the victim of sexual assault shall be informed of the availability of legal assistance and the services of a SARC and SAPR VA as soon as the member or dependent seeks assistance from a SARC, a SAPR VA, an MCIO, a victim or witness liaison, or a trial counsel. The member or dependent shall also be informed that the legal assistance and the services of a SARC or a SAPR VA are optional and may be declined, in whole or in part, at any time.
(13) Direct that DoD law enforcement not affiliated with an MCIO, when applicable, and VWAP personnel provide victims of sexual assault who elect an Unrestricted Report the information outlined in DoDD 1030.01
(14) Require that investigation descriptions found in § 105.17 be used to report case dispositions.
(15) Establish procedures to protect Service member victims and/or their dependents, SARCs, SAPR VAs, witnesses, healthcare providers, bystanders, and others associated with a report of sexual assault allegation from retaliation, reprisal, ostracism, and maltreatment.
(i) Protect victims of sexual assault from retaliation, ostracism, maltreatment, and reprisal in accordance with DoDD 7050.06 and AD 2014-20/AFI 36-2909/SECNAVINST 5370.7D. Require the SARC or SAPR VA to inform victims of the resources, listed in § 105.8, to report instances of retaliation, reprisal, ostracism, maltreatment, or sexual harassment or to request a transfer or MPO and/or CPO or to consult with an SVC/VLC.
(ii) Require SARCs and SAPR VAs to advise victims who reported a sexual assault or sought mental health treatment for sexual assault that they have the opportunity to discuss issues related to their military career with a G/FO that the victim believes are associated with the sexual assault.
(16) Require that sexual assault reports be entered into DSAID through interface with a MCIO case management systems, or by direct data entry by authorized personnel.
(17) Designate an official, usually the SARC, to generate an alpha-numeric Restricted Reporting case number (RRCN).
(18) Appoint a healthcare provider, as an official duty, in each MTF to be the resident point of contact concerning SAPR policy and sexual assault care.
(19) Submit an 8-day incident report in writing after an Unrestricted Report of sexual assault has been made in accordance with section 1743 of Public Law 113-66. The 8-day incident report will only be provided to personnel with an official need to know.
(d)
(1) Enhance communications and the sharing of information regarding sexual assault prosecutions, as well as of the sexual assault care and forensic
(2) Collaborate with local community crisis counseling centers, as necessary, to augment or enhance their sexual assault programs.
(3) Provide liaison with private or public sector sexual assault councils, as appropriate.
(4) Provide information about medical and counseling services related to care for victims of sexual assault in the civilian community, when not otherwise available at the MTFs, in order that military victims may be offered the appropriate healthcare and civilian resources, where available and where covered by military healthcare benefits.
(5) Where appropriate or required by MOU or MOA, facilitate training for civilian service providers about SAPR policy and the roles and responsibilities of the SARC and SAPR VA.
(e)
(2) Medical entitlements remain dependent on a LOD determination as to whether or not the sexual assault incident occurred in an active service or inactive duty training status. However, regardless of their duty status at the time that the sexual assault incident occurred, or at the time that they are seeking SAPR services (see § 105.3), Reserve Component members can elect either the Restricted or Unrestricted Reporting option (see 32 CFR 103.3) and have access to the SAPR services of a SARC and a SAPR VA.
(3) Any alleged collateral misconduct by a Service member victim associated with the sexual assault incident will be excluded from consideration as intentional misconduct or gross negligence under the analysis required by section 1074a(c) of title 10 U.S.C. in LOD findings for healthcare to ensure sexual assault victims are able to access medical treatment and mental health services.
(4) The following LOD procedures shall be followed by Reserve Component commanders.
(i) To safeguard the confidentiality of Restricted Reports, LOD determinations may be made without the victim being identified to DoD law enforcement or command, solely for the purpose of enabling the victim to access medical care and psychological counseling, and without identifying injuries from sexual assault as the cause.
(ii) For LOD determinations for sexual assault victims, the commander of the Reserve command in each component and the directors of the Army and Air NG shall designate individuals within their respective organizations to process LODs for victims of sexual assault when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training.
(A) Designated individuals shall possess the maturity and experience to assist in a sensitive situation, will have SAPR training, so they can appropriately interact with sexual assault victims, and if dealing with a Restricted Report, to safeguard confidential communications and preserve a Restricted Report (
(B) The appropriate SARC will brief the designated individuals on Restricted Reporting policies, exceptions to Restricted Reporting, and the limitations of disclosure of confidential communications as specified in § 105.8(e). The SARC and these individuals, or the healthcare provider may consult with their servicing legal office, in the same manner as other recipients of privileged information for assistance, exercising due care to protect confidential communications in Restricted Reports by disclosing only non-identifying information. Unauthorized disclosure may result in disciplinary action.
(iii) For LOD purposes, the victim's SARC may provide documentation that substantiates the victim's duty status as well as the filing of the Restricted Report to the designated official.
(iv) If medical or mental healthcare is required beyond initial treatment and follow-up, a licensed medical or mental health provider must recommend a continued treatment plan.
(v) Reserve Component members who are victims of sexual assault may be retained or returned to active duty in accordance with Table 1 of this section and section 12323 of title 10 U.S.C.
(A) A request described in Table 1 of this section submitted by a Reserve Component member must be answered with a decision within 30 days from the date of the request, in accordance with Public Law 112-239.
(B) If the request is denied, the Reserve Component member may appeal to the first G/FO in his or her chain of command. A decision must be made on that appeal within 15 days from the date of the appeal, in accordance with Public Law 112-239.
(f)
(i) Safety issues are not handled through an Expedited Transfer. They are handled through a fast safety move following applicable DoD and Service-specific procedures. (An Expedited Transfer may take longer than a safety move.)
(ii) The intent behind the Expedited Transfer policy in this section is to address situations where a victim feels safe, but uncomfortable. An example of where a victim feels uncomfortable is where a victim may be experiencing ostracism and retaliation. The intent behind the Expedited Transfer policy is to assist in the victim's recovery by moving the victim to a new location, where no one knows of the sexual assault.
(2) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC, SAPR VA, or the Service member's CO, or civilian supervisor equivalent (if applicable) at the time of making the report, or as soon as practicable, of the option to request a temporary or permanent expedited transfer from their assigned command or installation, or to a different location within their assigned command or installation in accordance with section 673 of title 10, U.S.C. The Service members shall initiate the transfer request and submit the request to their COs. The CO shall document the date and time the request is received.
(i) A presumption shall be established in favor of transferring a Service member (who initiated the transfer request) following a credible report (see § 105.3) of sexual assault. The CO, or the appropriate approving authority, shall make a credible report determination at the time the expedited request is made after considering the advice of the supporting judge advocate, or other legal advisor concerned, and the available evidence based on an MCIO's investigation's information (if available). If the Expedited Transfer is disapproved because there was no credible report, the grounds on which it was disapproved must be documented. A commander can always transfer a victim on other grounds,
(ii) Expedited transfers of Service members who report that they are victims of sexual assault shall be limited to sexual assault offenses reported in the form of an Unrestricted Report.
(A) Sexual assault against adults is defined in 32 CFR 103.3 and includes rape and sexual assault in violation of Article 120, of the UCMJ (section 920 of title 10 U.S.C.) and forcible sodomy in violation of Article 125, of the UCMJ (section 925 of title 10 U.S.C.). This part does not address victims covered under the FAP.
(B) If the Service member files a Restricted Report in accordance with 32 CFR part 103 and requests an expedited transfer, the Service member must affirmatively change his or her reporting option to Unrestricted Reporting on the DD Form 2910, in order to be eligible for an expedited transfer.
(iii) When the alleged perpetrator is the commander or otherwise in the victim's chain of command, the SARC shall inform such victims of the opportunity to go outside the chain of command to report the offense to MCIOs, other COs or an Inspector General. Victims shall be informed that they can also seek assistance from a legal assistance attorney, the DoD Safe Helpline, or an SVC/VLC. The relationship between an SVC/VLC and a victim in the provision of legal advice and assistance will be the relationship between an attorney and client, in accordance with section 1044e of title 10 U.S.C.
(iv) The CO shall expeditiously process a transfer request from a command or installation, or to a different location within the command or installation. The CO shall request and take into consideration the Service member's input before making a decision involving a temporary or permanent transfer and the location of the transfer. If approved, the transfer orders shall also include the Service member's dependents (if accompanied) or military spouse (if the military spouse consents). In most circumstances, transfers to a different installation should be completed within 30 calendar days from the date the transfer is approved. Transfers to a new duty location that do not require a change of station move should be completed within 1 week from the date the transfer is approved.
(v) The CO must approve or disapprove a Service member's request for a PCS, PCA, or unit transfer within 72 hours from receipt of the Service member's request. The decision to approve the request shall be immediately forwarded to the designated activity that processes PCS, PCA, or unit transfers (see § 105.3).
(vi) If the Service member's transfer request is disapproved by the CO, the Service member shall be given the opportunity to request review by the first G/FO in the chain of command of the member, or a SES equivalent (if applicable). The decision to approve or disapprove the request for transfer must be made within 72 hours of submission of the request for review. If a civilian SES equivalent reviewer approves the transfer, the Secretary of the Military Department concerned shall process and issue orders for the transfer. All transfer requests must be reported in the Services' and NGB Annual Program Review submission; to include all disapproved transfer requests, and the reason for disapproval.
(vii) Military Departments shall make every reasonable effort to minimize disruption to the normal career progression of a Service member who reports that he or she is a victim of a sexual assault.
(viii) Expedited transfer procedures require that a CO or the appropriate approving authority make a determination and provide his or her reasons and justification on the transfer of a Service member based on a credible report of sexual assault. A CO shall consider:
(A) The Service member's reasons for the request.
(B) Potential transfer of the alleged offender instead of the Service member requesting the transfer.
(
(
(C) Nature and circumstances of the offense.
(D) Whether a temporary transfer would meet the Service member's needs and the operational needs of the unit.
(E) Training status of the Service member requesting the transfer.
(F) Availability of positions within other units on the installation.
(G) Status of the investigation and potential impact on the investigation and future disposition of the offense,
(H) Location of the alleged offender.
(I) Alleged offender's status (Service member or civilian).
(J) Other pertinent circumstances or facts.
(ix) Service members requesting the transfer shall be informed that they may have to return for the prosecution of the case, if the determination is made that prosecution is the appropriate action.
(x) Commanders shall directly counsel the Service member to ensure that he or she is fully informed regarding:
(A) Reasonably foreseeable career impacts.
(B) The potential impact of the transfer or reassignment on the investigation and case disposition or the initiation of other adverse action against the alleged offender.
(C) The effect on bonus recoupment, if any.
(D) Other possible consequences of granting the request.
(xi) When an Expedited Transfer is approved, notification from the losing commander to the gaining commander will depend on whether there is an open case and continuation of services. If there is neither an open case nor continuation of services, no other action is needed. If there is an open case and services are requested, then notification to the gaining commander will occur to facilitate the investigation and access to services. This procedure applies to any sexual assault victim move (
(A) When an Expedited Transfer is approved, the losing commander will not inform the gaining commander of the sexual assault incident unless one of the following applies:
(
(
(
(
(
(B) When an Expedited Transfer is approved, the losing commander will inform the gaining commander of the inbound Expedited Transfer if any of the circumstances outlined in paragraph (f)(2)(xi)(A) of this section are occurring. The losing commander will limit the information given to objective facts about victim care provided, status of open investigations, and the status of ongoing legal proceedings in order to provide the gaining commander with some context for victim behavior and to facilitate the victim's access to advocacy, healthcare, MCIOs, and legal counsel.
(
(
(xii) If a victim transfers from the installation, then the processes in Table 2 of this section apply as appropriate.
(xiii) Require that expedited transfer procedures for Reserve Component members, Army NG, and Air NG members who make Unrestricted Reports of sexual assault be established by commanders within available resources and authorities. If requested by the Service member, the command should allow for separate training on different weekends or times from the alleged offender or with a different unit in the home drilling location to ensure undue burden is not placed on the Service member and his or her family by the transfer. Potential transfer of the
(xiv) Even in those court-martial cases in which the accused has been acquitted, the standard for approving an expedited transfer still remains whether a credible report has been filed. The commander shall consider all the facts and circumstances surrounding the case and the basis for the transfer request.
(g)
(1) Require the SARC or the SAPR VA to inform sexual assault victims protected by an MPO, in a timely manner, of the option to request transfer from the assigned command in accordance with section 567(c) of Public Law 111-84.
(2) Notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order, in the event an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO pursuant to Public Law 110-417.
(i) An MPO issued by a military commander shall remain in effect until such time as the commander terminates the order or issues a replacement order.
(ii) The issuing commander shall notify the appropriate civilian authorities of any change made in a protective order, or its termination, in accordance with Section 561, 562, and 563 of Public Law 110-417, “Duncan Hunter National Defense Authorization Act Fiscal Year 2009.
(iii) When an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO, notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order. The appropriate civilian authorities shall include, at a minimum, the local civilian law enforcement agency or agencies with jurisdiction to respond to an emergency call from the residence of any individual involved in the order.
(3) Military commanders will, through their installation law enforcement agency, place an active MPO in the National Crime Information Center (NCIC) for the duration of the order. Installation law enforcement will initiate a police report for the MPO, creating the required Originating Agency Case Number, and place the MPO in the NCIC Protective Order File, using Protection Order Conditions (PCO) Field Code 08 with the following mandatory caveat in the miscellaneous field: “This is a military protective order and may not be enforceable by non-military authorities. If subject is in possible violation of the order, advise the entering agency (military law enforcement).”
(4) Advise the person seeking the MPO that the MPO is not enforceable by civilian authorities off base and that victims desiring protection off base should seek a civilian protective order (CPO). Off base violations of the MPO should be reported to the issuing commander, DoD law enforcement, and the relevant MCIO for investigation.
(i) Pursuant to section 1561a of Public Law 107-311
(ii) If the victim has informed the SARC of an existing CPO, a commander shall require the SARC to inform the CMG of the existence of the CPO and its requirements. After the CPO information is received at the CMG, DoD law enforcement agents shall be required to document CPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status.
(5) MPOs in cases other than sexual assault matters may have separate requirements.
(6) The issuing commanders will fill out the DD Form 2873, “Military Protective Order (MPO),” and is required to provide victim(s) and alleged offender(s) with copies of the completed form. Verbal MPOs can be issued, but need to be subsequently documented with a DD Form 2873, as soon as possible.
(7) Require DoD law enforcement agents document MPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status. The appropriate DoD law enforcement agent representative to the CMG shall brief the CMG chair and co-chair on the existence of an MPO.
(8) If the commander's decision is to deny the MPO request, document the reasons for the denial. Denials of MPO requests go to the installation commander or equivalent command level (in consultation with a judge advocate) for the final decision.
(i) The number of MPO(s) issued, to include violations, must be included in the Services' and NGB Annual Program Review submission, as required by Public Law 111-84.
(ii) [Reserved]
(h)
(2) In accordance with Executive Order 13696 initial disposition authority is withheld from all commanders within the DoD who do not possess at least special court-martial convening authority and who are not in the grade of 0-6 (
(3) Commanders and supervisors should take appropriate action for the victim's alleged collateral misconduct (if warranted), responding appropriately in order to encourage sexual assault
(4) Subordinate commanders shall be advised that taking action on a victim's alleged collateral misconduct may be deferred until final disposition of the sexual assault case. The Military Departments shall establish procedures so that commanders and supervisors are not penalized for deferring collateral misconduct actions for the sexual assault victim until final disposition of the sexual assault case.
(5) Commanders shall have the authority to determine, in a timely manner, how to best manage the disposition of alleged misconduct, to include making the decision to defer disciplinary actions regarding a victim's alleged collateral misconduct until after the final disposition of the sexual assault case, where appropriate. For those sexual assault cases for which the victim's alleged collateral misconduct is deferred, Military Service reporting and processing requirements should take such deferrals into consideration and allow for the time deferred to be subtracted, when evaluating whether a commander took too long to resolve the collateral misconduct.
(i)
(1) Establishes prevention practice consistent with his or her Service's implementation of the “Department of Defense 2014-2016 Sexual Assault Prevention Strategy”. Prevention programs will address concerns about unlawful command influence so that victims' rights are protected at the same time that the due process rights of the alleged offenders are safeguarded.
(2) Establishes a command climate of sexual assault prevention predicated on mutual respect and trust, recognizes and embraces diversity, and values the contributions of all its Service members.
(3) Emphasizes that sexual assault is a crime and violates the core values of being a professional in the Military Services and ultimately destroys unit cohesion and the trust that is essential for mission readiness and success.
(4) Emphasizes DoD and Military Service policies on sexual assault and the potential legal consequences for those who commit such crimes.
(5) Monitors the organization's SAPR climate and responds with appropriate action toward any negative trends that may emerge.
(6) Reflects feedback and modifications based on command climate surveys, which are regularly administered in accordance with section 572 of Public Law 112-239.
(7) Identifies and remedies environmental factors specific to the location that may facilitate the commission of sexual assaults (
(8) Emphasizes sexual assault prevention training for all assigned personnel.
(9) Establishes prevention training that focuses on identifying the behavior of potential offenders.
(10) Identifies and utilizes community-based resources and partnerships to add depth to prevention efforts.
The revisions read as follows:
(a) * * *
(2) Comply with DoD Sexual Assault Advocate Certification requirements.
(7) * * *
(ii) * * *
(A) There will be situations where a sexual assault victim receives medical care and a SAFE outside of a military installation under a MOU or MOA with local private or public sector entities. In these cases, pursuant to the MOU or MOA, the SARC or SAPR VA shall be notified, and a SARC or SAPR VA shall respond.
(iii) SARCs shall provide a response that recognizes the high prevalence of pre-existing trauma (prior to the present sexual assault incident) and empowers an individual to make informed decisions about all aspects in the reporting process and to access available resources.
(8) * * *
(i) * * *
(A) Assist the victim in filling out the DD Form 2910 where the victim elects to make a Restricted or Unrestricted Report. However, the victims, not the SARCs or SAPR VAs, must fill out the DD Form 2910. Explain that sexual assault victims have the right and ability to consult with a SVC/VLC before deciding whether to make a Restricted Report, Unrestricted Report, or no report at all. Additionally, the SARC or SAPR VA shall explain the eligibility requirements for an SVC/VLC, as well as the option to request SVC or VLC services even if the victim does not fall within the eligibility requirements.
(B) Inform the victim that the DD Form 2910 will be uploaded to DSAID and retained for 50 years in Unrestricted Reports. The DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years, in a manner that protects confidentiality.
(C) The SARC or SAPR VA shall inform the victim of any local or State sexual assault reporting requirements that may limit the possibility of Restricted Reporting. At the same time, the victims shall be briefed of the protections and exceptions to MRE 514.
(v) Provide the installation commander and the immediate commander of the victim (if a civilian victim, then the immediate commander of the alleged offender) with information regarding an Unrestricted Report within 24 hours of an Unrestricted Report of sexual assault. This notification may be extended to 48 hours after the Unrestricted Report of the incident if there are extenuating circumstances in the deployed environments.
(vi) Provide the installation commander with non-PII within 24
(ix) * * *
(A) Explain the eligibility for SVC or VLC for victims filing Restricted or Unrestricted Reports, and the types of legal assistance authorized to be provided to the sexual assault victim, in accordance with section 1044e of title 10 U.S.C. Inform the victim of the opportunity to consult with legal assistance counsel and SVC or VLC as soon as the victim seeks assistance from a SARC or SAPR VA. Explain that the nature of the relationship between an SVC or VLC and a victim in the provision of legal advice and assistance will be the relationship between an attorney and client.
(xxii) * * *
(B) Maintain in DSAID an account of the services referred to and requested by the victim for all reported sexual assault incidents, from medical treatment through counseling, and from the time of the initial report of a sexual assault through the final case disposition or until the victim no longer desires services. Should the victim return to the SARC or SAPR VA and request SAPR services after indicating that he or she no longer desired services, the case will be reopened and addressed at the CMG meeting.
(C) A SARC will open a case in DSAID as an “Open with Limited Information” case when there is no signed DD 2910 (
(xxv) Familiarize the unit commanders and supervisors of SAPR VAs with the SAPR VA roles and responsibilities, to include the “Supervisor and Commander Statement of Understanding” section in the DD Form 2950, “Department of Defense Sexual Assault Advocate Certification Program (D-SAACP) Application Packet for New Applications.” The DD Form 2950 is available via the Internet at
(xxvi) Offer victims the opportunity to participate in surveys asking for victim feedback on the reporting experience. Inform victims regarding what the survey will ask them and uses of the data collected.
(b) * * *
(1) * * *
(i) Comply with DoD Sexual Assault Advocate Certification requirements in D-SAACP.
The revisions and additions read as follows:
(a) * * *
(2) Require that a SARC is immediately notified when a victim discloses a sexual assault so that the SARC can inform the victim of both reporting options (Restricted and Unrestricted) and all available services (
(3) Require the assignment of at least one full-time sexual assault medical forensic examiner to each MTF that has an emergency department that operates 24 hours per day. Additional sexual assault medical forensic examiners may be assigned based on the demographics of the patients who utilize the MTF.
(4) In cases of MTFs that do not have an emergency department that operates 24 hours per day, require that a sexual assault forensic medical examiner be made available to a patient of the facility consistent with the U.S. Department of Justice, Office on Violence Against Women, National Protocol for Sexual Assault Medical Forensic Examinations,
(i) The MOU or MOA will require that a SARC be notified and that SAFE Kits be collected in accordance with § 105.12.
(ii) When the forensic examination is conducted at a civilian facility through an MOU or an MOA with the DoD, the requirements for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the forensic kit.
(5) * * * In addition, verify that as part of the MOU or MOA, a SARC or SAPR VA is notified, and responds and meets with the victim in a timely manner.
(8) Require that the SARC be notified of all incidents of sexual assault in accordance with sexual assault reporting procedures in § 105.8.
(9) Require processes be established to support coordination between healthcare personnel and the SARC and SAPR VA. If a victim initially seeks assistance at a medical facility, SARC notification must not delay emergency care treatment of a victim.
(13) Publicize availability of healthcare (to include mental health), and referral services for alleged offenders who are also active duty Service members. Such care will be administered in a way to respect and preserve the rights of the victim and the accused, and the physical safety of both.
(16) Require that psychotherapy and counseling records and clinical notes pertaining to sexual assault victims contain only information that is required for diagnosis and treatment. Any record of an account of a sexual assault incident created as part of a psychotherapy exercise will remain the property of the patient making the disclosure and should not be retained within the psychotherapist's record.
(b)
(e) * * *
(2) Assessment of the risk of pregnancy, options for emergency contraception, and any follow-up care and referral services to the extent authorized by law.
(f) * * *
(2) The Combatant Commanders shall:
(i) Require that victims of sexual assault are given priority treatment as emergency cases in deployed locations within their area of responsibility and are transported to an appropriate evaluation site, evaluated, treated for injuries (if any), and offered SAPR VA assistance and a SAFE as quickly as possible.
(ii) Require that U.S. theater hospital facilities (Level #, NATO role #) (See § 105.3) have appropriate capability to provide experienced and trained SARC and SAPR VA services and SAFE providers, and that victims of sexual assault, regardless of reporting status, are medically evacuated to such facilities as soon as possible (within operational needs) of making a report, consistent with operational needs.
(3) In accordance with DoDD 5136.13, the Director, Defense Health Agency (DHA), will:
(i) Ensure that this policy is implemented in the National Capital Region.
(ii) Identify a primary office to represent the National Capital Region in Military Service coordination of issues pertaining to medical management of victims of sexual assault.
(iii) Assign a healthcare provider at each MTF in the National Capital Region as the primary point of contact concerning DoD and Military Service SAPR policy and for updates in sexual assault care.
The revisions read as follows:
(a) Medical services offered to eligible victims of sexual assault include the ability to elect a SAFE in addition to the general medical management related to sexual assault response, to include medical services and mental healthcare. The SAFE of a sexual assault victim should be conducted by a healthcare provider who has been trained and certified in the collection of forensic evidence and treatment of these victims as specified in § 105.14(g)(4). The forensic component includes gathering information in DD Form 2911 from the victim for the medical forensic history, an examination, documentation of biological and physical findings, collection of evidence from the victim, and follow-up as needed to document additional evidence.
(c) In situations where installations do not have a SAFE capability, the installation commander will require that the eligible victim, who wishes to have a SAFE, be transported to a MTF or local off-base, non-military facility that has a SAFE capability. Local sexual assault medical forensic examiners or other healthcare providers who are trained and certified as specified in in § 105.14(g)(4) to perform a SAFE may also be contracted to report to the MTF to conduct the examination.
(e) Upon completion of the SAFE in an Unrestricted Reporting case, the healthcare provider shall package, seal, and label the evidence container(s) with the victim's name and notify the MCIO. The SAFE Kit will be retained for 5 years in accordance with section 586 of Public Law 112-81. When the forensic examination is conducted at a civilian facility through an MOU or an MOA with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the forensic kit. Personal property retained as evidence collected in association with a sexual assault investigation may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related
(f) Upon completion of the SAFE in a Restricted Reporting case, the healthcare provider shall package, seal, and label the evidence container(s) with the RRCN and store it in accordance with Service regulations. The SAFE Kit will be retained for 5 years in a location designated by the Military Service concerned. When the forensic examination is conducted at a civilian facility through an MOU or an MOA with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the forensic kit. The 5-year time frame will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed.
(2) Any evidence and the SAFE Kit in Restricted Reporting cases shall be stored for 5 years from the date of the victim's Restricted Report of the sexual assault, thus allowing victims additional time to accommodate, for example, multiple deployments exceeding 12 months.
(B) * * *
(
(
(iii) Evidence will be stored by the DoD law enforcement agency until the 5-year storage period for Restricted Reporting is reached or a victim changes to Unrestricted Reporting.
The revisions and additions read as follows:
(a) * * *
(1) Case Management Group oversight for Unrestricted Reports of adult sexual assaults is triggered by open cases in DSAID initiated by a DD Form 2910 or an investigation initiated by an MCIO. In a case where there is an investigation initiated by an MCIO, but no corresponding Unrestricted DD Form 2910:
(i) The SARC would have no information for the CMG members. During the CMG, the MCIO would provide case management information to the CMG including the SARC.
(ii) The SARC would open a case in DSAID indicating the case status as “Open with Limited Information.” The SARC will only use information from the MCIO to initiate an “Open with Limited Information” case in DSAID. In the event that there was a Restricted Report filed prior to the independent investigation, the SARC will not use any information provided by the victim, since that information is confidential.
(4) Required CMG members shall include: victim's immediate commander; all SARCs assigned to the installation (mandatory attendance regardless of whether they have an assigned victim being discussed); victims' SAPR VA, MCIO and DoD law enforcement representatives who have detailed knowledge of the case; victims' healthcare provider or mental health and counseling services provider; chaplain, legal representative, or SJA; installation personnel trained to do a safety assessment of current sexual assault victims; victim's VWAP representative (or civilian victim witness liaison, if available), or SVC/VLC. MCIO, DoD law enforcement and the legal representative or SJA shall provide case dispositions. The CMG chair will ensure that the appropriate principal is available. The responsibility for CMG members to attend CMG meetings will not be delegated. Additional persons may be invited to CMG meetings at the discretion of the chair if those persons have an official need to know, with the understanding that maintaining victim privacy is essential.
(b) * * *
(2) * * *
(ii) Require effective and timely coordination and collaboration among CMG members. At each CMG meeting:
(A) Confirm that the MCIO assigned to an adult sexual assault investigation has notified the SARC as soon as possible, after the investigation is initiated in accordance with DoDI 1332.14.
(B) Confirm that all Unrestricted Reports, initiated by a DD Form 2910 or an investigation initiated by an MCIO, are entered into DSAID within 48 hours of the DD Form 2910 being signed by the victim.
(C) Confirm that commanders are providing the final disposition of sexual assault cases to MCIOs. Confirm that the installation commander's or his/her designated legal officer is providing the SARC the required information for the SARC to enter the final case disposition in DSAID.
(D) Confirm that members of the SVIP are collaborating with local SARCs and SAPR VAs during all stages of the investigative and military justice process to ensure an integrated capability, to the greatest extent possible, in accordance with DTM 14-003 and DoDI 5505.19.
(E) Confirm that the SARCs and SAPR VAs have what they need to provide an effective SAPR response to victims.
(iii) Require that case dispositions to include cases disposed of by nonjudicial proceedings are communicated to the sexual assault victim, to the extent authorized by law, within 2 business
(7) If a victim transfers from the installation, then the processes in Table 2 in § 105.9 will apply as appropriate.
(9) At every CMG meeting, the CMG Chair will ask the CMG members if the victim, victim's family members, witnesses, bystanders (who intervened), SARCs and SAPR VAs, responders, or other parties to the incident have experienced any incidents of retaliation, reprisal, ostracism, or maltreatment. If any allegations are reported, the CMG Chair will forward the information to the proper authority or authorities (
(10) The CMG chair will confirm that each victim receives a safety assessment as soon as possible. There will be a safety assessment capability. The CMG chair will identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim.
(iii) The CMG chair will immediately stand up a multi-disciplinary High-Risk Response Team if a victim is assessed to be in a high-risk situation. The purpose and the responsibility of the High-Risk Response Team is to continually monitor the victim's safety, by assessing danger and developing a plan to manage the situation.
(A) The High-Risk Response Team (HRRT) shall be chaired by the victim's immediate commander and, at a minimum, include the alleged offender's immediate commander; the victim's SARC and SAPR VA; the MCIO, the judge advocate, and the VWAP assigned to the case, victim's healthcare provider or mental health and counseling services provider; and the personnel who conducted the safety assessment. The responsibility of the HRRT members to attend the HRRT meetings and actively participate in them will not be delegated.
(B) The High-Risk Response Team shall make their first report to the installation commander, CMG chair, and CMG co-chair within 24 hours of being activated. A briefing schedule for the CMG chair and co-chair will be determined, but briefings shall occur at least once a week while the victim is on high-risk status.
(C) The High-Risk Response Team assessment of the victim shall include, but is not limited to evaluating:
(
(
(
(
(
(
(
(
(
(
(
(
(a)
(2) Military and DoD civilian officials at each management level shall advocate a robust SAPR program and provide education and training that shall enable them to prevent and appropriately respond to incidents of sexual assault.
(3) Data shall be collected according to the annual reporting requirements in accordance with Public Law 111-383 and explained in § 105.16.
(b)
(i) The Secretaries and the Chief, NGB, shall develop dedicated SAPR training to ensure comprehensive knowledge of the training requirements.
(ii) The SAPR training, at a minimum, shall incorporate adult learning theory, which includes interaction and group participation.
(iii) Upon request, the Secretaries and the Chief, NGB, shall submit a copy of SAPR training programs or SAPR training elements to USD(P&R) through SAPRO for evaluation of consistency and compliance with DoD SAPR training standards in this part. The Military Departments will correct USD(P&R) identified DoD SAPR policy and training standards discrepancies.
(2) Commanders and managers responsible for training shall require that all personnel (
(3) If responsible for facilitating the training of civilians supervising Service members, the unit commander or civilian director shall require all SAPR training requirements in this section are met. The unit commander or civilian equivalent shall be accountable for requiring data collection regarding the training.
(4) The required subject matter for the training shall be appropriate to the Service member's grade and
(i) Defining what constitutes sexual assault. Utilizing the term “sexual assault” as defined in 32 CFR part 103.
(ii) Explaining why sexual assaults are crimes.
(iii) Defining the meaning of “consent” as defined in 32 CFR part 103.
(iv) Explaining offender accountability and UCMJ violations.
(v) Explaining updates to military justice that impact victims, to include:
(A) The codification and enhancement of victims' rights in the military.
(B) Changes in Articles 32 and 60 of the UCMJ (sections 832 and 860 of title 10 U.S.C.) and their impact on victims.
(C) Elimination of the 5-year statute of limitations on sexual assault.
(D) Minimum mandatory sentence of dismissal or dishonorable discharge for persons found guilty in a general court-martial of: rape under Article 120(a); sexual assault under Article 120(b); forcible sodomy under Article 125; or an attempt to commit these offenses under Article 80 of the UCMJ (sections 920(a), 920(b), 925 or 880 of title 10 U.S.C.).
(E) That defense counsel has to make the request to interview the victim through the SVC/VLC or other counsel for the victim, if the victim is represented by counsel. In addition, the victim has the right to be accompanied to the interview by the SARC, SAPR VA, SVC/VLC, or counsel for the government.
(F) That the victim has the right to submit matters for consideration by the convening authority during the clemency phase of the court-martial process, and the convening authority will not consider the victim's character as a factor in making his or her determination unless such matters were presented at trial and not excluded at trial.
(G) Service regulations requiring inclusion of sex-related offenses in personnel records and mandating commanders to review personnel records of incoming Service members for these notations.
(H) Establishing a process to ensure consultation with a victim of an alleged sex-related offense that occurs in the United States to solicit the victim's preference regarding whether the offense should be prosecuted by court-martial or in a civilian court with jurisdiction over the offense.
(vi) Explaining the distinction between sexual harassment and sexual assault and that both are unacceptable forms of behavior even though they may have different penalties. Emphasizing the distinction between civil and criminal actions.
(vii) Explaining available reporting options (Restricted and Unrestricted), the advantages and limitations of each option, the effect of independent investigations on Restricted Reports (See § 105.8(a)(6)) and explaining MRE 514.
(viii) Providing an awareness of the SAPR program (DoD and Service) and command personnel roles and responsibilities, including all available resources for victims on and off base. Explaining that Military OneSource (see § 105.3) has a mandatory reporting requirement.
(ix) Identifying prevention strategies and behaviors that may reduce sexual assault, including bystander intervention, risk reduction, and obtaining affirmative consent. Identifying strategies to safely intervene and to guard against retaliation, reprisal, ostracism, or maltreatment because of that intervention.
(x) Discussing process change to ensure that all sexual assault response services are gender-responsive, culturally-competent, and recovery-oriented.
(xi) Discussing expedited transfers and MPO procedures.
(xii) Providing information to victims when the alleged perpetrator is the commander or in the victim's chain of command, to go outside the chain of command to report the offense to other COs or an Inspector General. Victims shall be informed that they can also seek assistance from SVC/VLC, a legal assistance attorney or the DoD Safe Helpline.
(xiii) Discussing 50-year document retention for sexual assault documents (DD Forms 2910 and 2911), to include retention of investigative records. Explaining why it is recommended that sexual assault victims retain sexual assault records for potential use in the Department of Veterans Affairs benefits applications. Explain that the SAFE Kit is retained for 5 years in a Restricted Report cases to allow victims the opportunity to change their minds and convert to Unrestricted. Explain that the SAFE Kit is retained for 5 years in Unrestricted Report cases.
(xiv) Explaining the eligibility for SVC/VLC for individuals who make Restricted or Unrestricted Reports of sexual assault, and the types of legal assistance authorized to be provided to the sexual assault victim.
(xv) Explaining that the nature of the relationship between an SVC/VLC and a victim in the provision of legal advice and assistance will be the relationship between an attorney and client.
(xvi) Explaining what constitutes retaliation, reprisal, coercion, ostracism, and maltreatment in accordance with Service regulations and Military Whistleblower Protections and procedures for reporting allegations of reprisal.
(A) Explaining what is the appropriate, professional response by peers to a victim and an alleged offender when a sexual assault is reported in a unit. Using scenarios to facilitate discussion of appropriate behavior, to include discussing potential resentment of peers for victims, bystanders, or witnesses who report a sexual assault. Explaining that incidents of retaliation, reprisal, ostracism, and maltreatment violate good order and discipline erode unit cohesion and deter reporting of sexual assault incidents.
(B) Explaining that all personnel in the victim's chain of command, officer and enlisted, when they become aware of allegations of retaliation, reprisal, ostracism, or maltreatment, are required to take appropriate measures to protect the victim, including information regarding how to prevent retaliation, reprisal, ostracism, and maltreatment in a unit after a report of sexual assault.
(xvii) Explaining Service regulations that protect Service member victims of sexual assault and/or their dependents from retaliation, reprisal, ostracism, and maltreatment. If the allegation is an act that is criminal in nature and the victim filed an Unrestricted Report, the allegation should immediately be reported to an MCIO. Explaining that victims can seek assistance on how to report allegations by requesting assistance from:
(A) A SARC, SAPR VA, or SVC/VLC.
(B) A SARC in different installation, which can be facilitated by Safe Helpline.
(C) Their immediate commander.
(D) A commander outside their chain of command.
(E) Service personnel to invoke their Service-specific reporting procedures regarding such allegations (AD 2014-20/AFI 36-2909/SECNAVINST 5370.7D).
(F) Service Military Equal Opportunity representative to file a complaint of sexual harassment.
(G) A G/FO if the retaliation, reprisal, ostracism, or maltreatment involves the administrative separation of a victim within 1 year of the final disposition of the sexual assault case. A victim may request that the G/FO review the separation.
(H) A G/FO if the victim believes there has been an impact on their military career because victims reported a sexual assault or sought mental health
(I) An SVC/VLC, trial counsel and VWAP, or legal assistance attorney to facilitate a report with a SARC or SAPR VA.
(J) Service personnel to file a complaint of wrongs in accordance with Article 138 of the UCMJ (section 938 of title 10 U.S.C.).
(K) DoD IG, invoking Whistle-blower Protections.
(L) Commander or SARC to request an Expedited Transfer.
(M) Commander or SARC to request a safety transfer or MPO, if the victim fears violence.
(xviii) Explaining Service regulations that protect SARC and SAPR VA from retaliation, reprisal, ostracism, and maltreatment, related to the execution of their duties and responsibilities.
(xix) Explaining Service regulations that protect witnesses and bystanders who intervene to prevent sexual assaults or who report sexual assaults from retaliation, reprisal, ostracism, and maltreatment.
(xx) Explaining that, when completing an SF 86 in connection with an application, investigation, or reinvestigation for a security clearance, it is DoD policy to answer “no” to question 21 of SF 86 with respect to consultation with a health care professional if:
(A) The individual is a victim of a sexual assault; or
(B) The consultation occurred with respect to an emotional or mental health condition strictly in relation to the sexual assault.
(c)
(1) Initial SAPR training will occur within 14 days of initial entrance.
(i) The matters specified in paragraph (c)(1)(ii) of this section will be carefully explained to each member of the Military Services at the time of or within 14 duty days of the member's initial entrance to active duty or the member's initial entrance into a duty status with a Reserve Component.
(ii) The matters to be explained in the initial SAPR training include:
(A) DoD policy with respect to sexual assault.
(B) Special emphasis to interactive scenarios that fully explain the reporting options and the channels through which victims can make an Unrestricted or a Restricted Report of a sexual assault.
(C) The resources available with respect to sexual assault reporting and prevention and the procedures a member seeking to access those resources should follow. Emphasize that sexual assault victims have the right and ability to consult with a SVC or VLC before deciding whether to make a Restricted or Unrestricted Report, or no report at all.
(2) Accessions training shall occur upon initial entry.
(i) Mirror the general training requirements in paragraph (b) of this section.
(ii) Provide scenario-based, real-life situations to demonstrate the entire cycle of prevention, reporting, response, and accountability procedures to new accessions to clarify the nature of sexual assault in the military environment.
(3) Annual training shall occur once a year and is mandatory for all Service members regardless of rank or occupation or specialty.
(i) Mirror the general training requirements in paragraph (b) of this section.
(ii) Explain the nature of sexual assault in the military environment using scenario-based, real-life situations to demonstrate the entire cycle of prevention, reporting, response, and accountability procedures.
(iii) Deliver to Service members in a joint environment from their respective Military Services and incorporate adult learning theory.
(4) Professional military education (PME) and leadership development training (LDT).
(i) For all trainees, PME and LDT shall mirror the general training requirements in this section.
(ii) For senior noncommissioned officers and commissioned officers, PME and LDT shall occur during developmental courses throughout the military career and include:
(A) Explanation and analysis of the SAPR program.
(B) Explanation and analysis of the necessity of immediate responses after a sexual assault has occurred to counteract and mitigate the long-term effects of violence. Long-term responses after sexual assault has occurred will address the lasting consequences of violence.
(C) Explanation of rape myths (See SAPR Toolkit on
(D) Explanation of the commander's and senior enlisted Service member's role in the SAPR program.
(E) Review of all items found in the “Commander's 30-Day Checklist for Unrestricted Reports of Sexual Assault”. (See SAPR Toolkit on
(F) Explanation of what constitutes retaliation, reprisal, ostracism, and maltreatment in accordance with Service regulations and Military Whistleblower Protections. This includes understanding:
(
(
(
(
(5) Pre-deployment training shall be provided.
(i) Mirror the general training requirements in paragraph (b) of this section.
(ii) Explain risk reduction factors tailored to the deployment location.
(iii) Provide a brief history of the specific foreign countries or areas anticipated for deployment, and the area's customs, mores, religious practices, and status of forces agreement. Explain cultural customs, mores, and religious practices of coalition partners.
(iv) Identify the type of trained sexual assault responders who are available during the deployment (
(v) Include completion of D-SAACP certification for SARCs and SAPR VAs.
(6) Post-deployment reintegration training shall occur within 30 days of returning from deployment and:
(i) Commanders of re-deploying personnel will ensure training completion.
(ii) Explain available counseling and medical services, reporting options, and eligibility benefits for Service members (active duty and Reserve Component).
(iii) Explain MRE 514. Explain that National Guard and Reserve members can make a Restricted or Unrestricted report with the SARC or SAPR VA and then be eligible to receive SAPR services.
(7) Pre-command training shall occur prior to filling a command position.
(i) Mirror the general training requirements in paragraph (b) of this section.
(A) The personnel trained shall include all officers who are selected for command and the unit's senior enlisted Service member.
(B) The required subject matter for the training shall be appropriate to the level of responsibility and commensurate with level of command.
(ii) Explain rape myths, facts, and trends.
(iii) Provide awareness of the SAPR program and explain the commander's and senior enlisted Service member's role in executing their SAPR service program.
(iv) Review all items found in the commander's protocols for Unrestricted Reports of sexual assault. (See SAPR Toolkit on
(v) Explain what constitutes retaliation, reprisal, ostracism, and maltreatment in accordance with Service regulations and Military Whistleblower Protections and procedures for addressing reprisal allegations. This includes understanding:
(A) Resources available for victims (listed in § 105.8) to report instances of retaliation, reprisal, ostracism, maltreatment, sexual harassment or to request a transfer or MPO.
(B) That victims who reported a sexual assault or sought mental health treatment for sexual assault may discuss issues related to their military career with the G/FO that the victim believes are associated with the sexual assault.
(C) That all personnel in the victim's chain of command, officer and enlisted, when they become aware of allegations of retaliation, reprisal, ostracism, or maltreatment, are required to take appropriate measures to protect the victim.
(D) The role of the chain of command in unit SAPR programs.
(E) The skills needed to address sexual harassment and sexual assault. Interactive exercises should be conducted to provide supervisors the opportunity to practice these skills.
(vi) A sexual assault prevention and response training module will be included in the training for new or prospective commanders at all levels of command. The training will be tailored to the responsibilities and leadership requirements of members of the Military Services as they are assigned to command positions. Such training will include:
(A) Fostering a command climate that does not tolerate sexual assault.
(B) Fostering a command climate in which persons assigned to the command are encouraged to intervene to prevent potential incidents of sexual assault.
(C) Fostering a command climate that encourages victims of sexual assault to report any incident of sexual assault.
(D) Understanding the needs of and the resources available to, the victim after an incident of sexual assault.
(E) Using MCIOs for the investigation of alleged incidents of sexual assault.
(F) Understanding available disciplinary options, including court-martial, nonjudicial punishment, administrative action, and deferral of discipline for collateral misconduct, as appropriate.
(G) Understanding the Expedited Transfer policy. Commanders have the authority to make a timely determination, and to take action, regarding whether a Service member who is alleged to have committed or attempted to commit a sexual assault offense should be temporarily reassigned or removed from a position of authority or from an assignment. This determination should be made, not as a punitive measure, but solely for the purpose of maintaining good order and discipline within the Service member's unit in accordance with Public Law 113-66.
(8) Curricula of the Military Service Academies will include:
(i) Substantive course work that addresses honor, respect, character development, leadership, and accountability as such pertain to the issue of preventing and the appropriate response to sexual assault in the Military Services.
(ii) Initial SAPR training will occur within 14 days of the initial arrival of a new cadet or midshipman at that Military Service Academy and repeated annually thereafter. Training will be conducted using adult learning method in accordance with paragraph (c)(1) of this section.
(iii) At a minimum, a brief history of the problem of sexual assault in the Military Services, a definition of sexual assault, information relating to reporting a sexual assault, victims' rights, and dismissal and dishonorable discharge for offenders of Service members convicted by general court-martial for certain sex-related offenses in accordance with section 856 of title 10 U.S.C.
(d)
(1) The Military Services' executive level management offices are responsible for tracking data collection regarding the training.
(2) The required subject matter for the training shall be appropriate to the level of responsibility and commensurate with level of command.
(3) Training guidance for other DoD components other than the Military Departments, will be provided in a separate issuance.
(e)
(f)
(g)
(1) All responder training shall:
(i) Be given in the form of initial and annual refresher training from their Military Service in accordance with § 105.5. Responder training is in addition to annual training.
(ii) Be developed for each responder functional area from each military service and shall:
(A) Explain the different sexual assault response policies and critical issues.
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(B) Explain the requirement that SARCs must respond in accordance with this part.
(C) Describe local policies and procedures with regards to local resources, referrals, procedures for military and civilians as well as collaboration and knowledge of resources and referrals that can be utilized at that specific geographic location.
(D) Explain the range of victim responses to sexual assault to include:
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(E) Explain deployment issues, including remote location assistance.
(F) Explain the possible outcomes of investigations of sexual assault.
(G) Explain the possible flow of a sexual assault investigation. (See flowchart in the SAPR Policy Toolkit, located at
(H) Be completed prior to deployment.
(I) Recommend, but not require, that SAPR training for responders include safety and self care.
(J) Explain how to provide a response that recognizes the high prevalence of pre-existing trauma.
(K) Explain the eligibility for SVC or VLC for both Restricted and Unrestricted Reports of sexual assault, and the types of legal assistance authorized to be provided to the sexual assault victim. Explain that the nature of the relationship between an SVC/VLC and a victim in the provision of legal advice and assistance will be the relationship between an attorney and client.
(2) SARC training shall:
(i) Provide the responder training requirements in paragraph (g)(1) of this section.
(ii) Be scenario-based and interactive. Provide for role play where a trainee SARC counsels a sexual assault victim and is critiqued by a credentialed SARC and/or an instructor.
(iii) Explain roles and responsibilities and command relationships.
(iv) Explain the different reporting options, to include the effects of independent investigations (see § 105.8). Explain the exceptions to Restricted Reporting, with special emphasis on the requirement to disclose personally identifiable information of the victim or alleged perpetrator if such disclosure is necessary to prevent or mitigate a serious and imminent threat to the health and safety of the victim or another individual.
(v) Provide training on how MCIOs will be entering reports of sexual assault into DSAID through MCIO cases management systems or by direct data entry. Provide training on potential discovery obligations regarding any notes entered in DSAID.
(vi) Provide training on document retention and SAFE Kit retention in of Restricted and Unrestricted cases. Explain evidence collected in a sexual assault investigation is disposed of in accordance with section 586 of Public Law 112-81, as amended by section 538 of Public Law 113-291, and DoD regulations.
(vii) Provide training on expedited transfer and MPO procedures.
(viii) Provide instruction on all details of SAPR VA screening, including:
(A) What to do if SAPR VA is a recent victim, or knows sexual assault victims.
(B) What to do if SAPR VA was accused of being an alleged offender or knows someone who was accused.
(C) Identifying the SAPR VA's personal biases.
(D) The necessary case management skills.
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(ix) Explain the roles and responsibilities of the VWAP and DD Form 2701.
(x) Inform SARCs of the existence of the SAPRO Web site at
(xi) Include annual suicide prevention training to facilitate their ability to assist a sexual assault victim who has suicidal ideation.
(3) SAPR VA training shall:
(i) Provide the responder training requirements in paragraph (g)(1) of this section.
(ii) Be scenario-based and interactive. Provide for role play where a trainee SAPR VA counsels a sexual assault victim, and then that counseling session is critiqued by an instructor.
(iii) Explain the different reporting options, to include the effects of independent investigations (see § 105.8). Explain the exceptions to Restricted Reporting, with special emphasis on the requirement to disclose personally identifiable information of the victim or alleged perpetrator if such disclosure is necessary to prevent or mitigate a serious and imminent threat to the health and safety of the victim or another individual.
(iv) Include:
(A) Necessary critical advocacy skills.
(B) Basic interpersonal and assessment skills.
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(C) Crisis intervention.
(D) Restricted and Unrestricted Reporting options as well as MRE 514.
(E) Roles and limitations, to include: command relationship, SAPR VA's rights and responsibilities, reporting to the SARC, and recognizing personal biases and issues.
(F) Preparing proper documentation for a report of sexual assault.
(G) Document retention and SAFE Kit retention in Restricted and Unrestricted cases. Explain evidence collected with a sexual assault investigation is disposed of in accordance with section 586 of Public Law 112-81, amended by section 538 of Public Law 113-291, and DoD regulations.
(H) Expedited transfer and MPO procedures.
(I) Record keeping rules for protected disclosures relating to a sexual assault.
(J) A discussion of ethical issues when working with sexual assault victims as a VA.
(K) A discussion of individual versus system advocacy.
(L) A review of the military justice process and adverse administrative actions.
(M) Overview of criminal investigative process and military judicial requirements.
(N) A review of the issues in victimology.
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(O) An explanation of the roles and responsibilities of the VWAP and DD Form 2701.
(P) Safety and self-care, to include vicarious trauma.
(v) Include annual suicide prevention training to facilitate their ability to assist a sexual assault victim who has suicidal ideation.
(4) Healthcare personnel training shall be in two distinct training categories:
(i) Training for healthcare personnel assigned to an MTF. In addition to the responder training requirements in paragraph (e)(1) of this section, healthcare personnel who received a Restricted Report shall immediately call a SARC or SAPR VA, so a DD Form 2910 can be completed. Training must include the information that healthcare personnel who receive a Restricted Report will maintain confidentiality to the extent authorized by law and this part. Training must include Expedited Transfers.
(ii) Training for sexual assault medical forensic examiners. Healthcare personnel who received a Restricted Report shall immediately call a SARC or SAPR VA, so a DD Form 2910 can be completed.
(A) In addition to the responder training requirements and healthcare personnel requirements in paragraphs (g)(1) and (g)(4)(i) of this section, healthcare providers performing SAFEs will be trained and must remain proficient in conducting SAFEs.
(B) All providers conducting SAFEs must have documented education, training, and clinical practice in sexual assault examinations in accordance with DoDI 1030.2 and the U.S. Department of Justice, Office on Violence Against Women, National Training Standards
(C) There must be selection, training, and certification standards for healthcare providers performing SAFEs in MTFs.
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(iii) Additional training topics for healthcare providers performing SAFEs:
(A) The SAFE Kit and DD Form 2911.
(B) Toxicology kit for suspected drug-facilitated cases.
(C) Chain of custody.
(D) Translation of findings.
(E) Proper documentation.
(F) Storage of evidence in Restricted Reports (
(G) Management of the alleged offender.
(H) Relevant local and State laws and restrictions.
(I) Medical treatment issues during deployments including remote location assistance to include: location resources including appropriate personnel, supplies (drying device, toluidine blue dye, colposcope, camera), standard operating procedures, location of SAFE Kit and DD Form 2911; and availability and timeliness of evacuation to echelon of care where SAFEs are available.
(J) How to provide testing, prophylactic treatment options, and follow-up care to possible exposure to human immunodeficiency virus (HIV), and other sexually transmitted diseases or infections (STD/Is).
(K) How to assess the risk of pregnancy; provide options for emergency contraception, and any follow-up care and referral services to the extent authorized by law.
(L) How to assess the need for mental health services and provisions for a referral, if necessary or requested by the victim.
(M) How to conduct physical and mental health assessment.
(N) How to deal with sexual assault-related trauma, to include:
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(O) Medical record management.
(P) Legal process and expert witness testimony.
(5) DoD law enforcement (those elements of DoD components, to include MCIOs, authorized to investigate violations of the UCMJ) training shall:
(i) Include the responder training requirements in paragraph (g)(1) of this section for DoD law enforcement
(ii) Remain consistent with the guidelines published under the authority and oversight of the IG, DoD. In addition, DoD law enforcement training shall:
(A) Explain how to respond in accordance with the SAPR program.
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(B) Explain how to work with sexual assault victims, to include the effects of trauma on sexual assault victims. Ensure victims are informed of and accorded their rights, in accordance with DoDI 1030.2 and DoDD 1030.01 by contacting the VWAP.
(C) Take into consideration the victim's safety concerns and medical needs.
(D) Review IG policy and Military Service regulations regarding the legal transfer of the SAFE Kit and the retention of the DD Form 2911 or reports from civilian SAFEs in archived files. Explain that if the victim had a SAFE, the SAFE Kit will be retained for 5 years in accordance with DoDI 5505.18 and with section 586 of Public Law 112-81, as amended by section 538 of Public Law 113-291. Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. Personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the Public Law 112-81, as amended by section 538 of Public Law 113-291 and DoD regulations.
(E) Discuss sex offender issues.
(6) Training for MCIO agents assigned to investigate sexual assaults shall:
(i) Be detailed in IG policy.
(ii) Adhere to the responder training requirements in paragraph (g)(1) of this section for military and civilian criminal investigators assigned to MCIOs who may respond to a sexual assault complaint.
(iii) Remain consistent with the guidelines published under the authority and oversight of the IG, DoD. In addition, MCIO training shall:
(A) Include initial and annual refresher training on essential tasks specific to investigating sexual assault investigations that explain that these reports shall be included in sexual assault quarterly and annual reporting requirements found in § 105.16.
(B) Include IG policy and Military Service regulations regarding the legal transfer of the SAFE Kit and the retention of the DD Form 2911 or reports from civilian SAFEs in archived files. Explain that if the victim had a SAFE, the SAFE Kit will be retained for 5 years in accordance with DoDI 5505.18 and in accordance with section 586 of the Public Law 112-81, as amended by section 538 of Public Law 113-291. Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. Personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the Public Law 112-81, as amended by section 538 of Public Law 113-291 and DoD regulations.
(C) Explain how to work with victims of sexual assault.
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(D) Explain how to respond to a sexual assault in accordance with to 32 CFR part 103, this part, and the assigned Military Service regulations on:
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(E) Review of available research regarding false information and the factors influencing false reports and false information, to include possible victim harassment and intimidation.
(F) Explain unique issues with sex offenders to include identifying, investigating, and documenting predatory behaviors.
(G) Explain how to work with the SARC and SAPR VA to include SAPR VA and SARC roles, responsibilities, and limitations; victim services and support program; and MRE 514.
(7) Judge advocate training shall:
(i) Prior to performing judge advocate duties, adhere to the responder training requirements in paragraph (g)(1) of this section for judge advocates who are responsible for advising commanders on the investigation or disposition of, or who prosecute or defend, sexual assault cases.
(ii) Explain legal support services available to victims.
(A) Pursuant to the respective Military Service regulations, explain that each Service member who reports a sexual assault shall be given the opportunity to consult with legal assistance counsel and SVC/VLC, and in cases where the victim may have been involved in collateral misconduct, to consult with defense counsel.
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(B) Explain the sex offender registration program.
(iii) Explain issues encountered in the prosecution of sexual assaults.
(A) Typologies (characteristics) of victims and sex offenders in non-stranger sexual assaults.
(B) Addressing the consent defense.
(C) How to effectively prosecute alcohol and drug facilitated sexual assault.
(D) How to introduce forensic and scientific evidence (
(E) Evidentiary issues regarding MRE 412, 413, and 615 of the Manual for Courts-Martial, United States.
(F) How to advise victims, SAPR VAs, and VWAP about the military justice process, and MRE 514. Explain:
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(8) Legal Assistance Attorney training shall adhere to the requirements of annual training in paragraph (c)(2) of this section. Attorneys shall receive training in order to have the capability to provide legal assistance to sexual assault victims in accordance with the USD(P&R) Memorandum. Legal assistance attorney training shall include:
(i) The VWAP, including the rights and benefits afforded the victim.
(A) The role of the VWAP and what privileges do or do not exist between the victim and the advocate or liaison.
(B) The nature of the communication made to the VWAP as opposed to those made to the legal assistance attorney.
(ii) The differences between the two types of reporting in sexual assault cases.
(iii) The military justice system, including the roles and responsibilities of the trial counsel, the defense counsel, and investigators. This may include the ability of the Government to compel cooperation and testimony.
(iv) The services available from appropriate agencies or offices for emotional and mental health counseling and other medical services.
(v) The availability of protections offered by military and civilian restraining orders.
(vi) Eligibility for and benefits potentially available as part of transitional compensation benefits found in section 1059 of title 10, U.S.C., and other State and Federal victims' compensation programs.
(vii) Traditional forms of legal assistance.
(9) SVC/VLC will adhere to the requirements of annual training in paragraph (c)(2) of this section, to include explaining the nature of the relationship between a SVC/VLC and a victim will be the relationship between an attorney and client. In accordance with section 1044e of title 10 U.S.C., SVC/VLC training will include providing legal consultation regarding:
(i) Potential criminal liability of the victim, if any, stemming from or in relation to the circumstances surrounding the alleged sex-related offense and the victim's right to seek military defense services.
(ii) The Victim Witness Assistance Program, including:
(A) The rights and benefits afforded the victim.
(B) The role of the Victim Witness Assistance Program liaison and what privileges do or do not exist between the victim and the liaison.
(C) The nature of communication made to the liaison in comparison to communication made to an SVC/VLC or a legal assistance attorney in accordance with section 1044 of title 10 U.S.C.
(iii) The responsibilities and support provided to the victim by the SARC or a SAPR VA, to include any privileges that may exist regarding communications between those persons and the victim.
(iv) The potential for civil litigation against other parties (other than the United States).
(v) The military justice system, including (but not limited to):
(A) The roles and responsibilities of the trial counsel, the defense counsel, and investigators.
(B) Any proceedings of the military justice process which the victim may observe.
(C) The U.S. Government's authority to compel cooperation and testimony.
(D) The victim's responsibility to testify and other duties to the court.
(vi) Accompanying the victim at any proceedings in connection with the reporting, military investigation, and military prosecution of the alleged sex-related offense.
(vii) Eligibility and requirements for services available from appropriate agencies or offices for emotional and mental health counseling and other medical services.
(viii) Legal consultation and assistance:
(A) In personal civil legal matters in accordance with section 1044 of title 10 U.S.C.
(B) In any proceedings of the military justice process in which a victim can participate as a witness or other party.
(C) In understanding the availability of, and obtaining any protections offered by, civilian and military protective or restraining orders.
(D) In understanding the eligibility and requirements for, and obtaining, any available military and veteran benefits, such as transitional compensation benefits found in section 1059 of title 10 U.S.C. and other State and Federal victims' compensation programs.
(10) Chaplains, chaplain assistants and religious personnel training shall:
(i) Adhere to the responder training requirements in paragraph (g)(1) of this section.
(ii) Pre-deployment SAPR training shall focus on counseling services needed by sexual assault victims and offenders in contingency and remote areas.
(iii) Address:
(A) Privileged communications and the Restricted Reporting policy rules and limitations, including legal protections for chaplains and their confidential communications, assessing victim or alleged offender safety issues (while maintaining chaplain's confidentiality), and MRE 514.
(B) How to support victims with discussion on sensitivity of chaplains in addressing and supporting sexual assault victims, identifying chaplain's own bias and ethical issues, trauma training with pastoral applications, and how to understand victims' rights as prescribed in DoDI 1030.2 and DoDD 1030.01.
(C) Other counseling and support topics.
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(b)
(i) Contain information about sexual assaults reported to the DoD involving persons covered by this part, both via Unrestricted and Restricted Reporting options.
(ii) Include adequate safeguards to shield PII from unauthorized disclosure. The system will not contain PII about victims who make a Restricted Report. Information about sexual assault victims and subjects will receive the maximum protection allowed under the law. DSAID is accessible only by authorized users and includes stringent user access controls.
(iii) Assist with annual and quarterly reporting requirements, identifying and managing trends, analyzing risk factors or problematic circumstances, and taking action or making plans to eliminate or to mitigate risks. DSAID shall store case information. Sexual assault case information shall be available to DoD SAPRO for SAPR program oversight (data validation and quality control), study, research, and analysis purposes. DSAID will provide a set of core functions to satisfy the data collection and analysis requirements for the system in five basic areas: data warehousing, data query and reporting, SARC victim case management functions, subject investigative and legal case information, and SAPR program administration and management.
(iv) Receive information from the MCIO case management systems or direct data entry by authorized Military Service personnel.
(v) Contain information pertaining to all victims of sexual assault reported to the DoD through filing a DD Form 2910 or reporting to an MCIO. When a Service member is alleged to have sexually assaulted a civilian or foreign national, the SARC will request and the MCIO will provide the victim's name, supporting PII, and the MCIO case file number, to include the unique identifier for foreign nationals, for entry into DSAID.
(vi) A SARC will open a case in DSAID as an “Open with Limited Information” case when there is no signed DD 2910 (
(2) The DD Form 2965 may be used as a tool for capturing information to be entered into DSAID when direct data entry is not possible, but the DD Form 2965 is not meant to be retained as a permanent form.
(i) SARCs and SAPR VAs will be the primary users of the DD Form 2965, which may be completed in sections as appropriate. Applicable sections of the form may also be used by MCIO and designated legal officer, if applicable, to provide required investigative and disposition information to SARCs for input into DSAID. Victims will not complete the DD Form 2965.
(ii) In accordance with General Records Schedule 20, Item 2(a)4, users will destroy the DD Form 2965 immediately after its information has been inputted into DSAID or utilized for the purpose of developing the 8-day incident report (Public Law 113-66). In all cases, the DD Form 2965 will not be retained for longer than 8 days and will not be mailed, faxed, stored, or uploaded to DSAID. In a Restricted Report case, a copy of the DD Form 2965 will not be provided to commanders.
The revision and addition read as follows:
(a) * * *
(4) Matrices for Restricted and Unrestricted Reports of the number of sexual assaults involving Service members that include case synopses, and disciplinary actions taken in substantiated cases and relevant information. See § 105.17.
(6) May include analyses of surveys administered to victims of sexual assault on their experiences with SAPR victim assistance and the military health and justice systems.
(7) Analysis and assessment of the disposition of the most serious offenses identified in Unrestricted Reports in accordance with section 542 of Public Law 113-291.
(a) The DSAID, the DD Form 2910, and the DD Form 2965, “Defense Sexual Assault Incident Database (DSAID) Data Form,” referred to in this part, have been assigned OMB control number 0704-0482 in accordance with the procedures in Volume 2 of DoD Manual 8910.01.
(b) The annual report regarding sexual assaults involving Service members and improvement to sexual assault prevention and response programs referred to in § 105.5(f); § 105.7(a)(9), (10), and (12); § 105.9(c)(8)(ii) and (f)(9); and § 105.16(a) and (d) is submitted to Congress in accordance with section 1631(d) of Public Law 111-383 and is coordinated with the Assistant Secretary of Defense for Legislatives Affairs in accordance with the procedures in DoDI 5545.02.
(c) The quarterly reports of sexual assaults involving Service members referred to in §§ 105.5, 105.7, 105.14, 105.15, and 105.16 are prescribed by DoDD 5124.02 and have been assigned a DoD report control symbol in accordance with the procedures in Volume 1 and Volume 2 of DoD Manual 8910.01.
(d) The Service Academy sexual assault survey referred to in § 105.16(c) has been assigned DoD report control symbol in accordance with the procedures in Volume 1 and Volume 2 of DoD Manual 8910.01.
(e) The Survivor Experience Survey, referred to in § 105.16(a) and conducted by the Defense Manpower Data Center (DMDC), has been assigned the Report Control Symbol DD-P&R(AR)2554 in accordance with the procedures in DoD Manual 8910.01, Volume 2.
U.S. Fish and Wildlife Service (FWS), Interior; National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services), finalize changes to the regulations concerning petitions, to improve the content and specificity of petitions and to enhance the efficiency and effectiveness of the petition process to support species conservation. Our revisions to the regulations clarify and enhance the procedures by which the Services evaluate petitions under section 4(b)(3) of the Endangered Species Act of 1973, as amended. These revisions will also maximize the efficiency with which the Services process petitions, making the best use of available resources.
This rule is effective October 27, 2016.
Douglas Krofta, U.S. Fish and Wildlife Service, Division of Conservation and Classification, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703/358-2171; facsimile 703/358-1735; or Angela Somma, National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910; telephone 301/427-8403. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
The Administrative Procedure Act (APA; 5 U.S.C. 553(e)) gives interested persons the right to petition for the issuance, amendment, or repeal of an agency's rule. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) use the rulemaking process in our administration of the Endangered Species Act of 1973 (Act; 16 U.S.C. 1531
The Services are revising the regulations at 50 CFR 424.14 concerning petitions to improve the content and specificity of petitions in order to enhance the efficiency and effectiveness of the petition process to support species conservation. Our revisions to § 424.14 clarify and enhance the procedures by which the Services will evaluate petitions under section 4(b)(3) of the Act (16 U.S.C. 1533(b)(3)). The revised regulations pertaining to the petition process will provide greater clarity to the public on the petition-submission process, which will assist petitioners in providing complete petitions. These revisions will also maximize the efficiency with which the Services process petitions, making the best use of available resources. These changes will improve the quality of petitions through clarified content requirements and guidelines, and, in so doing, better focus the Services' resources on petitions that merit further analysis. In the following discussion, we first summarize the comments received during the two public comment periods; we then summarize the changes and explain the benefits of making these changes.
In the proposed rule published on May 21, 2015 (80 FR 29286), we requested that all interested parties submit written comments on the proposal by July 20, 2015. We did not receive any requests for a public hearing. We received several requests for an extension of the public comment period, and on July 17, 2015 (80 FR 42466), we extended the public comment period to October 18, 2015. In total, we received 347 comments.
After further consideration of the issues, we revised the proposed rule and reopened a comment period for an additional 30 days on April 21, 2016 (81 FR 23448), to allow the public an opportunity to comment on proposed changes made in response to the comments we received on the original proposal. In that revised rule, we also requested comment on the information collection aspects of the proposed rule under the Paperwork Reduction Act. We received 27 comments on the revised proposed rule. All substantive information and relevant comments provided during the comment periods have been considered, and where appropriate, have either been incorporated directly into this final rule or addressed in the more specific responses to comments below. Comments are grouped into categories.
The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings the Services have made on the listing status of the species that is the subject of the petition. Where the Services have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on the Services' own initiative), the Services will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action, a petitioned action generally would not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information not previously considered.
As explained in response to
While not required under this final rule, we encourage members of the public who are preparing a petition to coordinate with the appropriate State agencies when gathering information; this coordination will help in preparing a complete petition with adequate information. Additionally, we value the input and expertise of our State partners and wish to provide them the opportunity to be aware that species in their States are the subject of petitions and to provide pertinent information on those species to the Services, should they have such information and wish to share it.
The requirement of a petitioner to notify States at least 30 days prior to filing a petition is a minimum. We encourage petitioners to notify States earlier, even as soon as they contemplate petitioning a species for protection under the Act. Further, we encourage petitioners to contact State wildlife agencies and consult State Web sites as valuable sources of information on their subject species, and incorporate any such information in their petitioned requests.
The use of such information, up until the time the Services make their findings, is a change from prior practice. However, we find that this change will expand the ability of the States and any interested parties to take the initiative of submitting input and information for the Services to consider in making 90-day findings, thereby making the petition process both more efficient and more thorough. In addition, this interpretation is consistent with the statutory purpose and with case law. It is consistent with the statutory purposes of the Act because providing for consideration of all information, regardless of when it was received, will put the Services in a better position to make the statutorily required finding—whether or not the petition presents substantial information indicating that the petitioned action may be warranted—by providing factual context in which to evaluate the information provided in the petition. Further, nothing in the Act precludes consideration of information up until the time a decision is made. It is consistent with case law because it stops short of allowing the Services to solicit new information for purposes of a 90-day finding, which courts have held to be beyond the scope of a 90-day finding.
The requirement that a petitioner notify States at least 30 days prior to filing a petition is, as noted, a minimum. Also, we encourage petitioners to contact State wildlife agencies and consult State Web sites as valuable sources of information on their subject species, and incorporate any such information in their petitioned requests.
Petitioners may request listing on an emergency basis; however, the Services are only required to treat such requests as a regular listing petition, and to follow the statutory timelines for responding to the petition as a regular listing petition. At any time, if one of the Services determines that there is an emergency posting a significant risk to the well-being of a species, it is within that Service's discretion under Section 4(b)(7) whether to consider promulgating a regulation that takes effect immediately.
The Services recognize the expertise and in-depth knowledge many State wildlife agencies have concerning species under their jurisdictions, value greatly our partnerships with State wildlife agencies, and take seriously the provisions of section 4 and 6 of the Act in coordinating and cooperating with the States. It is the practice of the Services to contact State wildlife agencies during status reviews to seek information on the subject species, and we invite States at any time to provide information and data they may have on species within the State. Many States provide frequent, regular updates to the Services on information about species that occur in their States.
We encourage members of the public to write their petition so that it addresses the appropriate rank (species, subspecies, variety, or population segment), but we also recognize that it is sometimes difficult to clearly determine the appropriate rank with the available information. We do not expect members of the public who may not have the expertise in taxonomy or genetics to make independent determinations on conflicting taxonomic assessments that may be available in the scientific literature. Along a similar line, if there is information to suggest that a vertebrate species occurs in population segments that may be discrete and significant (per the DPS Policy), then the petitioner may request that we consider one or more of these population segments as DPSs. Such a petitioner should include information to allow the Services to determine whether a given population segment of a vertebrate species may qualify as a DPS (
We are revising the regulations to clearly communicate the essential information that is required in all petitions (§ 424.14(c)), and identified the specific information which will help the Services in reaching their finding (§ 424.14(d) and (§ 424.14(e)). The Services retain discretion to consider a request to be a petition and process a petition where the Services determine there has been substantial, but not full technical, compliance with the relevant requirements (see discussion under
Further, a robust petition should provide a balanced presentation of facts, including those which may be contradictory. Including such information and source material demonstrates that the petitioner has diligently investigated the important issues addressed in their petition and not merely compiled an unrepresentative sample of information. Including contradictory information also gives the petitioner the opportunity to offer their analysis or explanation as to why that contradictory information is not conclusive.
Finally, the suggested language regarding requiring geographic range and range State information is already covered in this rule at § 424.14(c)(8), and would be redundant. This is important information to include in a petition, and we do not think it unreasonable to make this a requirement under § 424.14(c)(8).
• In light of recent revisions to 50 CFR 424.12, the Services are not required to first consider whether a designation limited to present range is adequate to ensure conservation.
• This provision needs to address requests to add as well as remove unoccupied areas from a critical habitat designation.
• The language is consistent with the definition of critical habitat in the Act (16 U.S.C. 1532(5)(A)(ii)), which includes unoccupied areas, that is, “specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.” Unlike the geographical areas occupied by the species at the time it is listed, unoccupied areas need not include the essential PBFs (see 16 U.S.C. 1532(5)(A) (i) of the Act). Therefore, it would be inconsistent with the Act to require such information in requests to revise unoccupied critical habitat.
• A determination as to whether unoccupied areas are essential for the conservation of the species is made by the Services, not the petitioner. However, it may be helpful if the petitioners include information indicating why the petitioned areas are or are not essential for the conservation of the species.
In the interest of providing greater clarity and transparency to the public, we have promulgated this rule to clarify and more thoroughly explain what is required in a petition and how the Services make their findings. We thus explain that the “substantial scientific or commercial information” standard (which applies to listing, delisting, and reclassification petitions) refers to credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. (We similarly interpret the “substantial scientific information” standard that applies to petitions seeking critical habitat revisions.) This interpretation clarifies that the Services must evaluate petitions in their capacity as biologists with the scientific expertise to investigate whether a species may be imperiled. As such, the Services analyze and decide whether petitions present “substantial information” consistent with the analyses and decisions that a hypothetical reasonable biologist would make. In addition, this hypothetical reasonable scientist would need to be impartial and approach the question as he or she would any scientific inquiry. Finally, the hypothetical person evaluating the information in the petition would need to perceive that the information is credible; conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.” These concepts are in no way new to the Services' practice; this is how we have and must evaluate petitions. Further, we believe this clarification aligns with the House Conference report, which states that, when courts review such a decision, the “object of [the judicial] review is to determine whether the Secretary's action was arbitrary or capricious
If a person disagrees with a Service's finding, in the case of 90-day petition findings in which the Service finds there is substantial information indicating that the petitioned action may be warranted (in other words, not a final agency action), that person could provide additional information regarding the species to help inform future agency actions such as the subsequent 12-month finding. In the case of not-substantial 90-day findings (which are final agency actions), one remedy would be to submit a new petition with further justification and rationale for the requested action. Also, final agency actions are judicially reviewable.
The addition of “conducting an impartial scientific review” to the reasonable person standard for what constitutes “substantial scientific and commercial information” similarly clarifies to petitioners the context against which the Services will necessarily evaluate petitions. The Services must evaluate petitions on the basis of the scientific validity of the request; that is, impartially evaluate whether there is a scientific basis for the requested action, and not just unsubstantiated claims. Because the context for this action involves evaluating scientific information, it is appropriate and necessary to take as our reference a person conducting an impartial scientific review. There is nothing in the Act to suggest that 90-day findings should be evaluated based on what persons lacking scientific background would conclude, and to adopt a generic standard would not further the purposes of the Act or reflect how the Services must and do actually go about evaluating petitions.
To clarify some of the terms we used, by using the term “considered” in the phrase “new information not previously considered,” we mean that information or analysis was evaluated in a previous finding, status review, or listing determination. “Sufficient” new information is that information or analysis which would lead a reasonable person conducting an impartial scientific review to conclude that the action proposed in the petition may be warranted, despite the previous review or finding.
With respect to prior listing determinations, the prospective petitioner may review the final listing rule and any supporting documentation to see what information was considered and evaluated. Five-year status reviews are not published in the
Unless such a petition provides different data, or a different analysis or interpretation of, or errors discovered in, the data, model or analytic methodology used in a previous finding, review, or determination, the conclusions may be the same, and the Services may find that such a petition does not provide substantial information indicating that the petitioned action may be warranted.
We make the distinction that, in the case of prior reviews that led to final agency actions (such as final listings, 12-month not-warranted findings, and 90-day not-substantial findings), a petition would generally be presumed not to provide substantial information unless the petition provides new information or a new analysis not previously considered in the final agency action. On the other hand, if the previous status review did not result in a final agency action, the petition would not be required to overcome the presumption that, unless it includes information or analysis that was not considered in the previous status review, it generally will not present substantial information indicating that the petitioned action may be warranted.
As discussed in greater detail in the National Environmental Policy Act Determination section below and in the Environmental Action Statement (available at
We do not anticipate that this final rule will change the outcomes of the Services' 90-day findings as to whether petitions present substantial information indicating that the petitioned actions may be warranted, because it is administrative and procedural in nature, and is designed merely to clarify and streamline the petition process consistent with statutory language, legislative history, and case law. Moreover, the revised regulations do not limit Secretarial discretion, because they do not mandate particular outcomes in future decisions regarding whether a request should be accepted as a petition or whether a petition presents substantial information that a petitioned action may be warranted.
Although the revised regulations expand on what information must be included in a request for it to qualify as a petition under section 4(b)(3) of the Act, they also provide for a process to inform petitioners when the request fails to meet the required criteria and allow discretion for the Services to consider a request that substantially complies with the required elements even if there is not full technical compliance. The Services will, within a reasonable timeframe, notify the petitioners of the required information that is missing. This will allow the submitters to cure any deficiencies before resubmitting the petition to the Services, should they choose to do so. Therefore, we do not expect that this additional procedural requirement will affect the substantive outcomes of 90-day findings on well supported petitions; rather, it will make the Services' consideration of petitions more efficient.
Throughout the regulation text we replace the title “the Secretary” or “the Secretaries” with “the Services,” as the Services are the formal designees of the Secretaries of Commerce and the Interior who have the delegated authority to implement the Act.
We also change the overall organization of the regulations. Instead of organizing all aspects of the regulations into the two categories of petitions under the Act (petitions to list, delist, or reclassify a species are discussed in current paragraph (b), and petitions to revise critical habitat are discussed in current paragraph (c)), the new regulations are organized by function. Requirements that apply to all petitions under the Act appear first (in new paragraphs (a), (b), (c)), followed by the list of factors the Services will consider in making findings on the two categories of petitions, respectively, (in new paragraphs (d) and (e)). Similarly, procedures that apply to all petitions under the Act are set out first (in new paragraphs (f) and (g) (and also (k)), followed by procedures that apply to the different categories of petitions (in new paragraphs (h) and (i) (and also at (j), which provides procedures for APA petitions)). We move some of the specific provisions from the previous regulations accordingly to fit better into this overall structure.
Section 424.14(a) retains the substance of the first sentence of the current section, stating that any interested person may submit a written petition to the Services requesting that one of the actions described in § 424.10 be taken for a species.
In our April 21, 2016, revised proposed rule (81 FR 23448), we included in § 424.14(b)(9) the requirement that, at least 30 days prior to filing a petition, the petitioners provide State agencies responsible for the management and conservation of wildlife with notice, by letter or electronic mail, of their intent to file a petition with the Services, and that copies of these letters or communications be included with the petition when it is submitted to the Services. In finalizing this rule, we
Therefore, new § 424.14(b) requires that for a petition to list, delist, or reclassify a species, or for petitions to revise critical habitat, petitioners must provide notice to the State agency or agencies primarily responsible for the management and conservation of fish, plant, or wildlife resources in each State where the species that is the subject of the petition occurs. Petitioners must notify the State agency of their intent to file a petition, with either Service, at least 30 days prior to petition submission. If the State agency has data or information on the subject species that it would like to share with the Services, the agency may submit the data and information directly to FWS or NMFS. This provision will allow the Services to benefit from the States' considerable experience and information on the species within their boundaries, because the States would have an opportunity to submit to the Service any information they have on the species early in the petition process. The Services, in formulating an initial finding, may use their discretion to consider any information provided by the States (as well as other readily available information, including any information they have received from other interested parties before the initial finding) as part of the context in which they evaluate the information contained in the petition.
Also in § 424.14(b), we added the following sentence for clarification to the language of the revised proposed rule (81 FR 23448; April 21, 2016): “This notification requirement shall not apply to any petition submitted pertaining to a species that does not occur within the United States.” This addition is to clarify that this provision does not apply to foreign species that do not occur in the United States, and further that, consistent with the definition in the Act at 16 U.S.C. 1532(17), “States” refers only to the States, the District of Columbia, and the territories and commonwealths of the United States.
As stated earlier, new § 424.14(c) incorporates the substance of the revised proposal's (81 FR 23448; April 21, 2016) § 424.14(b), setting forth a number of minimum content requirements for a request for agency action to qualify as a petition for the purposes of section 4(b)(3) of the Act, 16 U.S.C. 1533(b)(3). These include some of the minimum requirements from the second and third sentences of current paragraph (a). As with § 424.14(b) in the revised proposal, new § 424.14(c) also expands upon the list of requirements for a petition, drawing in part from the provisions in current paragraph (b)(2).
New § 424.14(c)(2) requires that a petition address only one species. However, we revised the language from this statement in the revised proposal (81 FR 23448; April 21, 2016) to clarify that a petition addressing only one species could include any configuration of members of that single species as defined by the Act (the full species, one or more subspecies or varieties, and, for vertebrate species, one or more distinct population segments (DPSs)). The taxonomic (biological) classification system is hierarchical, which means a taxon of the rank of species also includes all subspecies or varieties, if any, under that species. Similarly, applying the concept of hierarchical entities to the Act's use of the term “species,” a vertebrate species would also include any potential DPSs. Therefore, a single-species petition may address (a) one species of fish, wildlife, or plant; (b) one or more subspecies (variety) of fish, wildlife, or plant; or (c) one or more population segments of any vertebrate species (which FWS or NMFS will evaluate per the Services' Policy Regarding the Recognition of District Vertebrate Population Segments (61 FR 4722; February 7, 1996) (DPS Policy) as to whether it qualifies as a DPS). As such, the petitioner need not file separate petitions to address different hierarchical configurations of the same species.
Although the Services in the past have accepted multi-species petitions, in practice it has often proven to be difficult to know which supporting materials apply to which species. That has at times made it difficult to follow the logic of the petition. Because petitioners can submit multiple petitions, this requirement does not place any limitation on the ability of an interested party to petition for section 4 actions, but does ensure that petitioners organize the information in a way (on a species-by-species basis) that is necessary to inform the species-specific determinations required by the Act and will allow more efficient action by the Services.
The first six requirements (§ 424.14(c)(1) through (c)(6)) apply to each type of petition recognized under section 4(b)(3) of the Act. The first four requirements (§ 424.14(c)(1) through (c)(4)) were all contained in the previous regulations at § 424.14(a) and (b). The fifth and sixth requirements (§ 424.14(c)(5) and (c)(6)) clarify and expand on the previous provisions at § 424.14(b)(2)(iv) regarding a petition's supporting documentation.
At § 424.14(c)(5), we use the word “readily” before “locate the information cited in the petition, including page numbers or chapters as applicable.” The Services should not have to search through reference material to locate specific information; the petition should provide clear, specific citations that allow the supporting information to be located readily.
The seventh requirement (§ 424.14(c)(7)) applies only to petitions to list, delist, or reclassify a species from an endangered species to a threatened species (i.e, downlisting) or from a threatened species to an endangered species (
The eighth requirement (§ 424.14(c)(8)), applies only to petitions to list a species, and to petitions to delist or reclassify a species in cases
The ninth requirement, § 424.14(c)(9) relates to the requirement of § 424.14(b) that petitioners must provide notice to the State agency responsible for the management and conservation of fish, plant, or wildlife resources in each State where the species that is the subject of the petition occurs, at least 30 days prior to petition submission. Copies of the letter or electronic communication from the petitioner notifying the State agency of the petitioner's intent to file a petition with either Service must be included with the petition when it is submitted; such copies are considered a required part of the petition.
Please note that any decision to provide the protections of the Act to a species in an expedited manner under the Act's section 4(b)(7) (
The Services apply § 424.14(c) to identify those requests that contain all the elements of a petition, so that consideration of the request will be an efficient and wise use of agency resources. A request that fails to meet these elements may be screened out from further consideration, as discussed below, because a request cannot meet the statutory standard for demonstrating that the petitioned action may be warranted if it does not contain at least some information on each of the areas relevant to that inquiry. However, as discussed further below, the screening out of petitions due to missing required information does not constitute a petition finding under Section 4(b)(3)(A) of the Act. In such a situation, the Services will explain to petitioners what information was missing so that the petitioners can have an opportunity to cure the deficiencies in a new petition and obtain a finding on the petition under section 4(b)(3)(A) of the Act.
Section 424.14(d) describes the types of information that are relevant to the Services' determinations as to whether the petition provides substantial scientific or commercial information that the petitioned action may be warranted. Petitioners are advised that compliance with paragraph (c) is the minimum necessary to require the Services to consider their petition, but to provide a more complete and robust petition, petitioners should include as much of the types of information listed in paragraph (d) as possible, to the extent that it is relevant to the type of petition being filed.
The informational elements for listing, delisting, and reclassification petitions in § 424.14(d)(1) through (d)(3) are rooted in the substance of current paragraphs (b)(2)(ii) and (iii). These elements clarify in the regulations the key considerations that are relevant when the Services are determining whether or not the petition presents “substantial scientific or commercial information indicating that the petitioned action may be warranted,” which is the standard for making a positive 90-day finding as described in section 4(b)(3)(A) of the Act, 16 U.S.C. 1533(b)(3)(A).
Section 424.14(d)(3) refers to inclusion in a petition of a description of the magnitude and immediacy of threats. This type of information regarding the severity of threats on the species or its habitat is generally needed in conducting status reviews, and is therefore relevant to determining whether the petition presents substantial information indicating that the petitioned action may be warranted. In addition, this information may assist FWS in assessing the listing priority number of species if FWS subsequently makes a warranted-but-precluded finding under FWS' September 21, 1983, guidance, which requires assessing, in part, the magnitude and immediacy of threats (48 FR 43098). In addition to being useful for status reviews, this information should be included to assist in determinations on uplisting requests. While such information may also be useful to NMFS, NMFS has not adopted the 1983 FWS guidance, and so would not apply that guidance to petitions within its jurisdiction.
Section 424.14(d)(4) refers to inclusion in a petition of information on any conservation actions that States, or other parties, have initiated or that are ongoing, that benefit the subject species. Because this information is relevant to an ultimate determination of whether or not listing a species is warranted (the 12-month finding standard), it is indirectly relevant and may be useful in evaluating whether the action may be warranted (the 90-day finding standard).
We add a new § 424.14(d)(5), stating that a petitioner should provide a complete, balanced presentation of facts pertaining to the petitioned species, which would include any information the petitioner is aware of that contradicts claims in the petition. The intent of this provision is not to place an unnecessary burden on petitioners, but rather to encourage petitioners to avoid presenting in a petition only information that supports the claims in the petition. This is particularly true for information publicly available from affected States or Tribes, who often have important and relevant species data and information, as well as special status and concerns with respect to implementation of the Act. Fostering greater inclusion of such data will help ensure that any petition submitted to the Services is based on reliable and unbiased information and does not consist simply of selected data. We find that, to further the purposes of the Act, petitioners should be forthcoming as to the known, relevant facts so that the Services have an accurate basis from which to evaluate the merits of the petition. Fostering a more transparent and informed petition process will ensure that the Services' resources are directed productively and not diverted to matters that only superficially appear meritorious.
Section 424.14(d) does not include the language in current paragraph (b)(2) that describes information a petitioner may include for consideration in designating critical habitat in conjunction with a listing or reclassification. We have deleted these two sentences because, at the initial stage, the Services focus their evaluation of the information to make a finding on whether the petition presents substantial information indicating that
Section 424.14(e) sets forth the kinds of information a petitioner should include in a petition to revise a critical habitat designation. The Service's determination as to whether the petition provides “substantial scientific information indicating that the revision may be warranted” (16 U.S.C. 1533(b)(3)(D)(i)) will depend in part on the degree to which the petition includes this type of information.
The items set out at new § 424.14(e) are an expanded and reworded version of the substance of current paragraph (c)(2). Section 424.14(e)(1) advises that, to help justify a revision to critical habitat, it is important to demonstrate that the existing designation includes areas that should not be included or does not include areas that should be included. The petition should discuss the benefits of designating additional areas, or the reasons to remove areas from an existing designation. Additionally, including maps with sufficient detail to clearly identify the particular area(s) being recommended for inclusion or exclusion will be useful to the Services in making a petition finding.
New § 424.14(e)(2), (e)(3), and (e)(4) are drawn from the substance of current paragraphs (c)(2)(i) and (ii), which have been reorganized and clarified. Sections 424.14(e)(2), (e)(3), and (e)(4) clarify that several distinct pieces of information are helpful in analyzing whether any area of habitat should be designated, beginning with a description of the “physical or biological features” that are essential for the conservation of the species and which may require special management. If a petitioner believes that the already-identified physical or biological features in an existing critical habitat designation have been incorrectly identified, the petition should provide information supporting the recognition of a different set of features and explain how the different set of features would lead to identification of different areas as qualifying for inclusion in a designation of occupied critical habitat. (See also our response to comment 47). In other words, petitioners requesting revisions to critical habitat designations need not provide information on which physical or biological features are essential unless the relevant areas were occupied at the time of listing and the petitioners contend that some features recognized at the time of designation as essential are not, or that features not recognized in the designation as essential should be.
Also, paragraphs (e)(3) and (e)(4) of § 424.14 detail the informational needs the Services will have in considering whether the petition presents substantial information indicating that it may be warranted to add to, or remove from, the critical habitat designation specific areas occupied by the species at the timing of listing. Further, we clarify that “features” specifically refers to the “physical or biological features,” as described in our recent revision to 50 CFR 424.12 (81 FR 7414; February 11, 2016). Further, to use the same language as the revised 50 CFR 424.12, we replace the clause “(including features that allow the area to support the species periodically, over time)” with “(including characteristics that support ephemeral or dynamic habitat conditions).”
Section 424.14(e)(5) describes the particular informational needs associated with evaluating habitat that was unoccupied at the time of listing—that is, information that fulfills the statutory requirement that any specific areas designated are “essential for the conservation of the species.” See section 3(5)(A)(ii) of the Act, 16 U.S.C. 1532(5)(A)(ii).
Section 424.14(e)(6) mirrors the revised § 424.14(d)(5), stating that a petitioner should provide a complete, balanced presentation of facts pertaining to the species' potential critical habitat, which would include any information the petitioner is aware of that contradicts claims in the petition. This provision recognizes that, in availing themselves of the petition process, petitioners seek to direct the Services' focus and resources to particular species.
Section 424.14(f) sets out the possible responses the Services may make to requests. Section 424.14(f)(1) clarifies that a request that fails to satisfy the mandatory elements set forth in paragraph (c) will generally be returned by the Services with an explanation of the reason for the rejection, but without a determination on the merits of the request. In light of the volume of petitions received by the Services, it is critical that we have the option to identify in a reasonable timeframe those requests that on their faces are incomplete, in order to ensure that agency resources are not diverted from higher priorities. Although this authority is implied in the current regulations, making the point explicit in these revised regulations provides additional notice to petitioners and will result in better-quality petitions and more efficient and effective (in terms of species conservation) use of agency resources.
The Services retain discretion to determine whether a request constitutes a petition and to process that petition where the Services determine there has been substantial compliance with the relevant requirements. The Services need to maintain some discretion in order to apply common-sense principles in accepting or rejecting petitions. Petitions will not likely be rejected for minor omissions of the requirements set forth at § 424.14(c). The Services also recognize that not all elements will be as crucial for particular kinds of petitions (
We would apply such discretion judiciously. If most of the cited source materials have been provided, the Services may accept the petition and may evaluate the petition without considering those claims for which the source materials have not been provided. Thus, even if the petition is accepted, the absence of cited source materials may make it more likely to result in a finding that the petition does not present substantial information. To avoid rejection of the petition or an increased likelihood of a “not substantial” finding, we encourage the petitioner to include all cited materials with the petition, as this is an important step in substantiating the petitioner's claims. It should not present a hardship to provide the source material that the petitioner used in preparing the petitioned request.
Section 424.14(f)(1) states that the Services will determine whether or not a request contains all of the requisite information for qualifying as a petition “within a reasonable timeframe.” Although this does not establish a specific timeframe, the Act already prescribes a number of binding, enforceable deadlines for making petition findings, and we do not intend to create a new one with this provision. Our goal is to minimize the amount of
The revision to § 424.14(f)(2) confirms that a request that complies with the mandatory requirements will be acknowledged (as required under current 424.14(a)); however, we have removed the requirement to provide the acknowledgement in writing within 30 days of the receipt of the petition. We make this revision to allow the Services greater flexibility in the means and timing of communicating with the petitioner its determination of whether the petition complies with the mandatory requirements. This revision also reflects the fact that, in light of current electronic means of communication, it is more efficient for petitioners to refer to the Services' online lists of active petitions, which are accessible to the public at
We clarify in § 424.14(g) that a petitioner submitting supplemental information later in time from their original petition has the option to specify whether or not the information being submitted is intended to be part of the petition. Specifying that the supplemental information is intended to be part of the petition will have the consequence that the Services will be obligated to consider it in the course of reaching a finding on the petition. It will also, however, have the related consequence that the timeframes under section 4 of the Act for when findings are due will be reset and begin to run anew from the time the supplemental information is received. In contrast, if the petitioner does not specify that the information is intended to be part of the petition, the Services will treat the supplemental information as they would any readily available information from any source. As we have explained, the Services have discretion to consider such information as appropriate to place the petition in context, but are not required to consider such information. Because the Act requires that the 90-day finding evaluate whether the petition presents substantial information to indicate that the petitioned action may be warranted, the submission of new information intended to supplement a petition is in effect a new petition. It is thus reasonable and necessary to reset the timeframes when new information intended to supplement the petition is received. The final regulation thus strikes a balance that is fair to petitioners by giving them the choice to determine the consequences of submitting new information.
This provision will ensure the Services have adequate time to consider the supplemental information relevant to a petition and that the process is not interrupted by receipt of new information that may fundamentally change the evaluation. Also, by providing clear notice of this process, the Services are encouraging petitioners to assemble all the information necessary to support the petition prior to sending it to the Services for consideration, further enhancing the efficiency of the petition process.
Section 424.14(h) explains the kinds of findings the Services may make on a petition to list, delist, or reclassify a species, and the standards to be applied in that process. Section 424.14(h)(1) is drawn largely from current paragraph (b)(1), with some revisions. Most significantly, § 424.14(h)(1)(i) clarifies the substantial-information standard for 90-day findings by defining it as credible scientific and commercial information that would lead a reasonable person conducting an impartial scientific review to conclude that the action proposed in the petition may be warranted. Thus it makes clear that conclusory statements made in a petition without the support of credible scientific or commercial information are not “substantial information.” For example, a petition that states only that a species is rare, and thus should be listed, without other credible information regarding its status and threats, likely does not provide substantial information. As demonstrated by the Scott's riffle beetle case (
In § 424.14(h)(1)(ii), we have added a new sentence to clarify that the Services are not required to consider any supporting materials cited by the petitioner if the cited documents, or relevant excerpts or quotations from the cited documents, are not provided in accordance with paragraph (c)(6) of this section. Additionally, we clarify that the Services may consider information provided in a petition in the context of other information that is readily available at the time it makes a 90-day finding. For purposes of § 424.14(h)(1), the Services recognize that the statute places the obligation squarely on the petitioner to present the requisite level of information to meet the “substantial information” test, and that the Services should not seek to supplement petitions. (See the Columbian sharp-tailed grouse case (
However, in determining whether a petition is substantial or not, the Services must determine whether the claims are credible. Therefore, it is appropriate for the Services to consider readily available information that provides context in which to evaluate whether or not the information that a petition presents is timely and up-to-date, and whether it is reliable or representative of the available information on that species, in making its determination as to whether the petition presents substantial information.
The precise range of information considered will vary with circumstances. In a discussion of judicial review of the Secretary's 90-day findings on petitions, a House Conference report states that, when courts review such a decision, the “object of [the judicial] review is to determine whether the Secretary's
Although the Services are mindful that, at the stage of formulating an initial finding, they should not engage in outside research or an effort to comprehensively compile the best available information, they must be able to place the information presented in the petition in context. The Act contemplates a two-step process in reviewing a petition. The 12-month finding is meant to be the more in-depth determination and follows a status review, while the 90-day finding is meant to be a quicker evaluation of a more limited set of information. However, based on our experience in administering the Act, the Services conclude that evaluating the information presented in the petition in a vacuum can lead to inaccurately supported decisions and misdirection of resources away from higher priorities. It would be difficult for the Services to bring informed expertise to their evaluation of the facts and claims alleged in a petition without considering the petition in the context of other information of the sort that the Services have readily available and would routinely consult in the course of their work. It is reasonable for the Services to be able to examine the information and claims included in a petition in light of readily available scientific information prior to committing limited Federal resources to the significant expense of a status review. Some examples of readily available information that the Services may use include information sent to the Services by State wildlife agencies or other parties, State fish and wildlife databases, the Integrated Taxonomic Identification System (ITIS), the International Union for the Conservation of Nature (IUCN), the Intergovernmental Panel on Climate Change (IPCC), stock assessments, and fishery management plans (this list is not all-inclusive).
The information the Services may use may not only be stored in the traditional hard copy format in files, but may also be electronic data files as well, or stored on Web sites created by the Services or other Web sites routinely accessed by the Services. As noted, the range of information considered readily available will vary with circumstances, but could include the information physically held by any office within the Services (including, for example, NMFS Science Centers and FWS Field Offices), and may also include information stored electronically in databases routinely consulted by the Services in the ordinary course of their work. For example, it would be appropriate to consult online databases such as ITIS (
Section 424.14(h)(1)(iii) addresses situations in which the Services have already made a finding on or conducted a review of the listing status of a species, and, after such finding or review, receive a petition seeking to list, delist, or reclassify that species. Such prior reviews constitute information readily available to the Services and provide important context for evaluation of petitions. Although the substantial-information standard applies to all petitions under section 4(b)(3)(A) of the Act, the standard's application is influenced by the context in which the finding is being made. The context of a finding after a status review and determination is quite different from that before any status review has been completed. Further, prior reviews represent a significant expenditure of the Services' resources, and it would be inefficient and unnecessary to require the Services to revisit issues for which a determination has already been made, unless there is a basis for reconsideration. In the case of prior reviews that led to final agency actions (such as final listings, 12-month not warranted findings, and 90-day not-substantial findings), a petition generally would not be found to provide substantial information unless the petition provides new information or a new analysis or interpretation not previously considered in the final agency action. By “new” we mean that the information was not considered by the Services in the prior determination or that the petitioner is presenting a different interpretation or analysis of that data.
These revisions are not meant to imply that the Service's finding on a petition addressing the same species as a prior determination would necessarily be negative. For example, the more time that has elapsed from the completion of the prior review, the greater the potential that substantial new information has become available. As another example, the Services may have concluded a 5-year status review in which we find that a listed species no longer warrants listing, but we have not as yet initiated a rulemaking to delist the species (in other words, have not yet undertaken a final agency action). If we receive a petition to delist that species, in which the petitioner provides no new or additional information than was considered in the 5-year status review, we would likely still find that the petition presents substantial information that the petitioned action may be warranted.
Paragraph (h)(2) is substantially the same as current paragraph (b)(3). Among other changes, we added new language clarifying the standard for making expeditious-progress determinations in warranted-but-precluded findings, including (in paragraph (h)(2)(iii)(B)) a clear acknowledgement that such determinations are to be made in light of resources available, after complying with nondiscretionary duties, court orders, and court-approved settlement agreements to take actions under section 4 of the Act. In this rule, we are redesignating current paragraph (b)(4) as paragraph (h)(3), although we have removed the reference in the current language that “no further finding of substantial information will be required,” as it merely repeats statutory language.
In § 424.14(h)(2), we replace the conditional clause “If a positive finding is made” (as we used in our proposed rule published on May 21, 2015 (80 FR 29286)) with “If the Services find that the petition presents substantial information indicating that the petitioned action may be warranted,” for clarity, and to avoid introducing an additional, undefined term. We also add clarity in § 424.14(h)(2), by adding the phrase, “At the conclusion of the status review,” before the reference to the obligation of the Services to make a 12-month finding.
Paragraph (i) explains the kinds of findings that the Services may make on
The Services' broad discretion to decide when it is appropriate to revise critical habitat is evident in the differences between the Act's provisions discussing petitions to revise critical habitat, on the one hand, and the far more prescriptive provisions regarding the possible findings that can be made at the 12-month stage on petitions to list, delist, or reclassify species, on the other. Section 4(b)(3)(B) of the Act includes three detailed and exclusive options for 12-month findings on petitions to list, delist, or reclassify species. In contrast, section 4(b)(3)(D)(ii) requires only that, within 12 months of receipt of a petition to revise critical habitat that has been found to present substantial information that the petitioned revision may be warranted, the Secretaries (acting through the Services) determine how they intend “to proceed with the requested revision” and promptly publish notice of such intention in the
Further, the legislative history for the 1982 amendments that added the petition provisions to the Act confirms that Congress intended to grant discretion to the Services in determining how to respond to petitions to revise critical habitat. After discussing at length the detailed listing petition provisions and their intended meaning, Congress said of the critical habitat petition requirements, “Petitions to revise critical habitat designations may be treated differently” (H.R. Rep. No. 97-835, at 22 (1982),
The Services may find in particular situations that terminology similar to that used in the listing-petition provisions is useful for explaining their determination at the 12-month stage of how they intend to proceed on a petition to revise critical habitat. For example, the Services have, at times, used the term “warranted” to indicate that requested revisions of critical habitat would satisfy the definition of critical habitat in section 3 of the Act. However, use of the listing-petition terms in a determination of how the Services intend to proceed on a petition to revise critical habitat would not mean that the associated listing-petition procedures and timelines apply or are required to be followed with respect to the petition. For example, if the Services find that a petitioned revision of critical habitat is, in effect, “warranted,” in that the areas would meet the definition of “critical habitat,” that finding would not require the Services to publish a proposed rule to implement the revision in any particular timeframe. Similarly, a finding on a petition to revise critical habitat that uses the phrase “warranted but precluded,” or a functionally similar phrase, to describe the Secretary's intention would not trigger the requirements of section 4(b)(3)(B)(iii) or section 4(b)(3)(C) (establishing requirements to make particular findings, to implement a monitoring system, etc.).
Although the Services have discretion to determine how to proceed with a petition to revise critical habitat, the Services think that certain factors regarding conservation and recovery of the species at issue are likely to be relevant and potentially important to most such determinations. Such factors may include, but are not limited to: The status of the existing critical habitat for which revisions are sought (
At § 424.14(i)(2), compared to our revised proposal of the rule (81 FR 23448; April 21, 2016), we add the introductory clause, “If the Services find that the petition presents substantial information that the requested revision may be warranted,” for clarity.
Paragraph (j) is substantially the same as current paragraph (d), which refers to petitions to “designate critical habitat or adopt special rules.” In this regulation, for clarity, we expressly refer to the types of petitions that are covered, which are those requesting that the Services initially designate critical habitat or adopt rules under sections 4(d), 4(e), or 10(j) of the Act.
Paragraph (k) describes the process for a petitioner to withdraw a petition, and the Services' discretion to discontinue action on the withdrawn petition. Although the Services may discontinue work on a 90-day or 12-month finding for a petition that is withdrawn, in the case of a petition to list a species, the Services may use their own process to evaluate whether the species may warrant listing and whether it should become a candidate for listing. In the case of the withdrawal of a petition to delist, uplist or downlist a species, the Services may use the 5-year review
Executive Order (E.O.) 12866 provides that the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The OIRA has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This rule is consistent with E.O. 13563, and in particular with the requirement of retrospective analysis of existing rules, designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601
This rule will revise and clarify the regulations governing documentation needed by the Services in order to effectively and efficiently evaluate petitions under the Act. While some of the changes may require petitioners to expend some time (such as notifying State(s)) and effort (providing complete petitions), we do not expect this will prove to be a hardship, economically or otherwise. Further, following a review of entities that have petitioned the Services, we find that most are individuals or organizations that are not considered small business entities. And while small entities may choose to petition the Services, any economic effects would be minimal because any increase in costs (such as notification to States or electronic filing of the petition versus hardcopy should they choose) will be nominal,
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) On the basis of information contained in the
(b) This rule will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; that is, this rule is not a “significant regulatory action”' under the Unfunded Mandates Reform Act. This rule will impose no obligations on State, local, or tribal governments.
In accordance with E.O. 12630, this rule will not have significant takings implications. This rule will not pertain to “taking” of private property interests, nor will it directly affect private property. A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate government interest (conservation and recovery of endangered and threatened species) and will not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with E.O. 13132, we have considered whether this rule will have significant Federalism effects and have determined that a federalism summary impact statement is not required. This rule pertains only to the petition process under the Endangered Species Act, and will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.
This rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988. This rule will clarify the petition process under the Endangered Species Act.
In accordance with Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments,” November 6, 2000), the Department of the Interior Manual at 512 DM 2, the Department of Commerce (DOC) Tribal Consultation and Coordination Policy (May 21, 2013), DOC Departmental Administrative Order (DAO) 218-8, and NOAA Administrative Order (NAO) 218-8 (April 2012), we have considered possible effects of this final rule on federally recognized Indian Tribes. Following an exchange of information with tribal representatives, we have determined that this rule, which
This final rule contains information collections for which the Office of Management and Budget (OMB) approval is required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Any interested person may submit a written petition to the Services requesting to add a species to the Lists of Endangered or Threatened Wildlife and Plants (Lists), remove a species from the Lists, change the listed status of a species, or revise the boundary of an area designated as critical habitat. OMB has approved the following information collection:
The burden table below includes information for both NMFS and FWS. Based on the average number of species per year over the past 5 years regarding which FWS and NMFS were petitioned, we estimate the average annual number of petitions received by both Services combined to be 50 (25 for FWS and 25 for NMFS). Because each petition will be limited to a single species under the regulations, the average number of species included in petitions over the past 5 years may be more accurate than the average number of petitions as a gauge of the number of petitions we are likely to receive going forward. This estimate of the number of petitions the Services will receive in the future may be generous. We estimate that there will be a need for a petitioner to notify an average of 10 States per petition. Many species are narrow endemics and may only occur in one State, but others are wide-ranging and may occur in many States. However, we are erring on the side of over-estimating the potential number of States petitioners will need to notify on average.
During the proposed rule stage, we solicited comments for a period of 30 days on the information collection requirements. We received one comment.
The public may comment, at any time, on any aspect of the information collection requirements in this rule and may submit any comments to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
We have analyzed this regulation in accordance with the criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
Following a review of the changes to the regulations at 50 CFR 424.14 and our requirements under NEPA, we find that the categorical exclusion found at 43 CFR 46.210(i) applies to these regulation changes. At 43 CFR 46.210(i), the Department of the Interior has found that the following category of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature.”
NAO 216-6 contains a substantially identical exclusion for “policy directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature” (§ 6.03c.3(i)).
At the time DOI's categorical exclusion was promulgated, there was no preamble language that would assist in interpreting what kinds of actions fall within the categorical exclusion. However, in 2008, the preamble for a language correction to this categorical exclusion gave as an example of an action that would fall within the exclusion the issuance of guidance to applicants for transferring funds electronically to the Federal Government. In addition, an example of a recent
The changes to the petition regulations are similar to these examples of actions that are fundamentally administrative, technical, and procedural in nature. The changes to the regulations at 50 CFR 424.14 clarify the procedures for submitting and evaluating petitions under Section 4 of the Act. In addition, the regulation revisions provide transparency for the practices and interpretations that the Services have adopted and applied as a result of case law or pragmatic considerations. The Services also make minor wording and formatting revisions throughout the regulations to reflect plain-language standards. The regulation revision as a whole carries out the requirements of Executive Order 13563 because, in this rule, the Services have analyzed existing rules retrospectively “to make the agencies' regulatory program more effective or less burdensome in achieving the regulatory objectives.”
We also considered whether any “extraordinary circumstances” apply to this situation, such that the DOI categorical exclusion would not apply. See 43 CFR 46.215 (“Categorical Exclusions: Extraordinary Circumstances”). We determined that no extraordinary circumstances apply. Although the final regulations would revise the implementing regulations for section 4 of the Act to provide greater clarity to petitioners on information that is likely to improve efficiency and accuracy in processing petitions, the effects of these proposed changes would not “have significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species or have significant impacts on designated Critical Habitat for these species,” as nothing in the revised regulations is expected to determine or change the outcome of any status review of a species or any decision on a petition to revise critical habitat. Furthermore, the revised regulations do not “[e]stablish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects” (43 CFR 46.215(e)). None of the extraordinary circumstances in 43 CFR 46.215(a) through (l) apply to the revised regulations.
Nor would the final regulations trigger any of the extraordinary circumstances of NAO 216-6. This rule does not involve a geographic area with unique characteristics, is not the subject of public controversy based on potential environmental consequences, will not result in uncertain environmental impacts or unique or unknown risks, does not establish a precedent or decision in principle about future proposals, will not have significant cumulative impacts, and will not have any adverse effects upon endangered or threatened species or their habitats (§ 5.05c).
We completed an Environmental Action Statement for the Categorical Exclusion for the revised regulations in 50 CFR 424.14.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Administrative practice and procedure, Endangered and threatened species.
Accordingly, we amend part 424, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1531
The Office of Management and Budget reviewed and approved the information collection requirements contained in subpart B and assigned OMB Control No. 1018-0165. We use the information to evaluate and make decisions on petitions. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. You may send comments on the information collection requirements to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, at the address listed at 50 CFR 2.1(b).
(a)
(b)
(c)
(1) The name, signature, address, telephone number, if any, and the association, institution, or business affiliation, if any, of the petitioner;
(2) The scientific name and any common name of a species of fish or wildlife or plants that is the subject of the petition. Only one species may be the subject of a petition, which may include, by hierarchical extension based on taxonomy and the Act, any subspecies or variety, or (for vertebrates)
(3) A clear indication of the administrative action the petitioner seeks (
(4) A detailed narrative justifying the recommended administrative action that contains an analysis of the information presented;
(5) Literature citations that are specific enough for the Services to readily locate the information cited in the petition, including page numbers or chapters as applicable;
(6) Electronic or hard copies of supporting materials, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (
(7) For a petition to list, delist, or reclassify a species, information to establish whether the subject entity is a “species” as defined in the Act;
(8) For a petition to list a species, or for a petition to delist or reclassify a species in cases where the species' range has changed since listing, information on the current and historical geographic range of the species, including the States or countries intersected, in whole or part, by that range; and
(9) For a petition to list, delist or reclassify a species, or for petitions to revise critical habitat, copies of the notification letters or electronic communication which petitioners provided to the State agency or agencies responsible for the management and conservation of fish, plant, or wildlife resources in each State where the species that is the subject of the petition currently occurs.
(d)
(1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available;
(2) Identification of the factors under section 4(a)(1) of the Act that may affect the species and where these factors are acting upon the species;
(3) Whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the Act may cause the species to be an endangered species or threatened species (
(4) Information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and
(5) A complete, balanced representation of the relevant facts, including information that may contradict claims in the petition.
(e)
(1) A description and map(s) of areas that the current designation does not include that should be included, or includes that should no longer be included, and a description of the benefits of designating or not designating these specific areas as critical habitat. Petitioners should include sufficient supporting information to substantiate the requested changes, which may include GIS data or boundary layers that relate to the request, if appropriate;
(2) A description of physical or biological features essential for the conservation of the species and whether they may require special management considerations or protection;
(3) For any areas petitioned to be added to critical habitat within the geographical area occupied by the species at time it was listed, information indicating that the specific areas contain one or more of the physical or biological features (including characteristics that support ephemeral or dynamic habitat conditions) that are essential to the conservation of the species and may require special management considerations or protection. The petitioner should also indicate which specific areas contain which features;
(4) For any areas petitioned for removal from currently designated critical habitat within the geographical area occupied by the species at the time it was listed, information indicating that the specific areas do not contain the physical or biological features (including characteristics that support ephemeral or dynamic habitat conditions) that are essential to the conservation of the species, or that these features do not require special management considerations or protection;
(5) For areas petitioned to be added to or removed from critical habitat that were outside the geographical area occupied by the species at the time it was listed, information indicating why the petitioned areas are or are not essential for the conservation of the species; and
(6) A complete, balanced representation of the relevant facts, including information that may contradict claims in the petition.
(f)
(2) If a request does meet the requirements set forth at paragraph (c) of this section, the Services will acknowledge receipt of the petition by posting information on the respective Service's Web site.
(g)
(h)
(i) For the purposes of this section, “substantial scientific or commercial information” refers to credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the
(ii) In reaching the initial finding on the petition, the Services will consider the information referenced at paragraphs (c), (d), and (g) of this section. The Services may also consider information readily available at the time the determination is made. The Services are not required to consider any supporting materials cited by the petitioner if the cited document is not provided in accordance with paragraph (c)(6) of this section.
(iii) The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings the Services have made on the listing status of the species that is the subject of the petition. Where the Services have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on the Services' own initiative), the Services will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action, a petitioned action generally would not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information not previously considered.
(2) If the Services find that a petition presents substantial information indicating that the petitioned action may be warranted, the Services will commence a review of the status of the species concerned. At the conclusion of the status review and within 12 months of receipt of the petition, the Services will make one of the following findings:
(i) The petitioned action is not warranted, in which case the Service shall publish a finding in the
(ii) The petitioned action is warranted, in which case the Services shall publish in the
(iii) The petitioned action is warranted, but:
(A) The immediate proposal and timely promulgation of a regulation to implement the petitioned action is precluded because of other pending proposals to list, delist, or change the listed status of species; and
(B) Expeditious progress is being made to list, delist, or change the listed status of qualified species, in which case such finding will be published in the
(3) If a finding is made under paragraph (h)(2)(iii) of this section with regard to any petition, the Services will, within 12 months of such finding, again make one of the findings described in paragraph (h)(2) of this section with regard to such petition.
(i)
(i) For the purposes of this section, “substantial scientific information” refers to credible scientific information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the revision proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific information will not be considered “substantial information.”
(ii) The Services will consider the information referenced at paragraphs (c), (e), and (g) of this section. The Services may also consider other information readily available at the time the determination is made in reaching its initial finding on the petition. The Services are not required to consider any supporting materials cited by the petitioner if the cited documents are not provided in accordance with paragraph (b)(6) of this section.
(2) If the Services find that the petition presents substantial information that the requested revision may be warranted, the Services will determine, within 12 months of receiving the petition, how to proceed with the requested revision, and will promptly publish notice of such intention in the
(j)
(k)
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 |