|Page and Subject|
|81 FR 94213 - Steps for Increased Legal and Policy Transparency Concerning the United States Use of Military Force and Related National Security Operations|
|81 FR 94211 - Presidential Determination Pursuant to Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997|
|81 FR 94415 - Government in the Sunshine Act Meeting Notice|
|81 FR 94340 - Procurement List; Proposed Additions and Deletions|
|81 FR 94340 - Procurement List; Additions and Deletions|
|81 FR 94417 - Certain Foam Footwear; Commission Determination To Adopt a Report Issued by the Office of Unfair Import Investigations as Its Advisory Opinion|
|81 FR 94370 - Draft Field-Based Methods for Developing Aquatic Life Criteria for Specific Conductivity|
|81 FR 94312 - Adoption of Recommendations|
|81 FR 94371 - Environmental Impact Statements; Notice of Availability|
|81 FR 94483 - Submission for OMB Review; Comment Request|
|81 FR 94427 - Submission for OMB Review; Comment Request|
|81 FR 94476 - Norfolk Southern Railway Company-Discontinuance of Service Exemption-in Rockingham and Shenandoah Counties, VA|
|81 FR 94339 - Nominations to the Marine Fisheries Advisory Committee|
|81 FR 94412 - Notice of Availability of the Environmental Assessment for Federal Coal Lease Application NDM-107039, McLean County, ND, Notice of Public Hearing and Request for Comment on Environmental Assessment, Maximum Economic Recovery, and Fair Market Value|
|81 FR 94274 - Civil Penalties; Inflation Adjustments for Civil Monetary Penalties|
|81 FR 94409 - City of San Diego Vernal Pool Habitat Conservation Plan and Draft Environmental Impact Report/Statement; San Diego County, California|
|81 FR 94370 - Meetings of the Local Government Advisory Committee and the Small Communities Advisory Subcommittee (SCAS)|
|81 FR 94262 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the North Penn Area 6 Superfund Site|
|81 FR 94484 - Submission for OMB Review; Comment Request|
|81 FR 94379 - Agency Information Collection Activities: Submission for OMB Review; Comment Request|
|81 FR 94413 - Notice of Public Meeting for the Eastern Washington Resource Advisory Council|
|81 FR 94411 - Announcement of Public Meetings via Teleconference: North American Wetlands Conservation Council|
|81 FR 94378 - Medicare Program; Renewal of the Advisory Panel on Hospital Outpatient Payment and Solicitation of Nominations to the Advisory Panel on Hospital Outpatient Payment|
|81 FR 94480 - Twenty Fifth RTCA SC-222 AMS(R)S Systems New Air-Ground Data Link Technologies Related to SATCOM|
|81 FR 94268 - Medicare Program; End-Stage Renal Disease Quality Incentive Program; Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure, and Appeals Process for Breach of Contract Actions; Correction|
|81 FR 94295 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the North Penn Area 6 Superfund Site|
|81 FR 94345 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement; Describing Agency Needs|
|81 FR 94381 - Announcement of an Award for a Single-Source Urgent and Compelling Grant Under the Unaccompanied Children's Services Program to BCFS Health and Human Services Emergency Management Division (BCFS EMD)|
|81 FR 94217 - Importation of Lemons From Northwest Argentina|
|81 FR 94342 - Proposed Information Collection; Comment Request|
|81 FR 94270 - Drug and Alcohol Testing: Determination of Minimum Random Testing Rates for 2017|
|81 FR 94388 - Food and Drug Administration Modernization Act of 1997: Modifications to the List of Recognized Standards, Recognition List Number: 046|
|81 FR 94251 - Medical Devices; Neurological Devices; Classification of the Neurovascular Mechanical Thrombectomy Device for Acute Ischemic Stroke Treatment|
|81 FR 94382 - Medical Device User Fee and Modernization Act; Notice to Public of Web Site Location of Fiscal Year 2017 Proposed Guidance Development|
|81 FR 94419 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act|
|81 FR 94215 - Freedom of Information Act Regulation|
|81 FR 94357 - Proposed Subsequent Arrangement|
|81 FR 94362 - Eagle Ford Midstream, LP; Notice of Staff Protest to Petition for Rate Approval|
|81 FR 94360 - Florida Gas Transmission Company, LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed East-West Project and Request for Comments on Environmental Issues|
|81 FR 94253 - Contraband and Inmate Personal Property: Technical Change|
|81 FR 94356 - Revision of a Currently Approved Information Collection for the State Energy Program|
|81 FR 94344 - Advisory Committee on Arlington National Cemetery Meeting Notice|
|81 FR 94377 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies|
|81 FR 94347 - Charter Renewal of Department of Defense Federal Advisory Committee|
|81 FR 94276 - Risk-Based Capital and Other Regulatory Requirements for Activities of Financial Holding Companies Related to Physical Commodities and Risk-Based Capital Requirements for Merchant Banking Investments, Regulations Q and Y|
|81 FR 94346 - Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD); Notice of Federal Advisory Committee Meeting|
|81 FR 94481 - Controlled Substances and Alcohol Testing Responsibilities of Commercial Driver Staffing Agencies and Motor Carriers That Use Them|
|81 FR 94347 - Privacy Act of 1974; System of Records|
|81 FR 94343 - Notice of Intent To Grant an Exclusive Patent License|
|81 FR 94349 - Public Scoping Meeting and Intent To Prepare an Environmental Impact Statement for Proposed Pascagoula River Drought Resiliency Project, George County and Jackson County, Mississippi|
|81 FR 94481 - Announcement of Household Goods Consumer Protection Working Group Members and First Public Meeting|
|81 FR 94352 - Intent To Prepare a Draft Environmental Impact Statement for the Matagorda Ship Channel, TX, Feasibility Study|
|81 FR 94351 - Intent To Prepare an Integrated Feasibility Study/Environmental Impact Statement for the San Francisquito Creek Flood Risk Management Study, San Mateo and Santa Clara Counties, CA|
|81 FR 94394 - Product-Specific Bioequivalence Recommendations; Draft and Revised Draft Guidances for Industry; Availability|
|81 FR 94343 - Advisory Committee on Arlington National Cemetery, Honor Subcommittee and the Remember and Explore Subcommittee Meeting Notice|
|81 FR 94382 - Proposed Information Collection Activity; Comment Request|
|81 FR 94362 - City of Anaheim, California; Notice of Filing|
|81 FR 94362 - City of Banning, California; Notice of Filing|
|81 FR 94360 - City of Riverside, California; Notice of Filing|
|81 FR 94364 - National Choice Energy LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization|
|81 FR 94364 - Beacon Solar 1, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization|
|81 FR 94358 - Wildwood Solar I, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization|
|81 FR 94363 - Combined Notice of Filings #2|
|81 FR 94358 - Combined Notice of Filings #1|
|81 FR 94358 - Combined Notice of Filings #2|
|81 FR 94366 - Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs|
|81 FR 94357 - Combined Notice of Filings #1|
|81 FR 94254 - Iranian Transactions and Sanctions Regulations|
|81 FR 94384 - Agency Information Collection Activities; Proposed Collection; Comment Request; Application for Participation in the Food and Drug Administration Regulatory Science Student Internship Program|
|81 FR 94386 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Unique Device Identification System|
|81 FR 94413 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Application for Designation as National Recreation Trail or National Water Trail|
|81 FR 94476 - Actions Taken at December 8, 2016, Meeting|
|81 FR 94484 - Agency Information Collection Activity Under OMB Review: (Agent Orange Registry Code Sheet; VA Form 10-9009)|
|81 FR 94485 - Revision to a Previously Approved Information Collection (Veterans Benefits Administration (VBA) Voice of the Veteran (VOV) Customer Satisfaction Continuous Measurement Survey)|
|81 FR 94353 - Privacy Act of 1974; System of Records|
|81 FR 94321 - Agency Information Collection Activities; Request for Comments; Revision of the Confidentiality Pledge Under Title 13 United States Code, Section 9|
|81 FR 94486 - Notice that Certain VA Homeless Providers Grants Will Be Terminated|
|81 FR 94487 - Funding Availability: Homeless Providers Grant and Per Diem Program|
|81 FR 94484 - Pricing for the 2017 Lions Clubs International Centennial Silver Dollars|
|81 FR 94398 - Towing Safety Advisory Committee; January 2017 Teleconference|
|81 FR 94475 - Culturally Significant Objects Imported for Exhibition Determinations: “The Mysterious Landscapes of Hercules Segers” Exhibition|
|81 FR 94426 - State, Local, Tribal, and Private Sector Policy Advisory Committee Meeting|
|81 FR 94426 - Advisory Committee on the Presidential Library-Foundation Partnerships Meeting|
|81 FR 94440 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.9, Orders and Modifiers, and Rule 11.13, Order Execution and Routing, To Enhance the Exchange's Midpoint Routing Functionality|
|81 FR 94468 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt a Participant Fee Applicable to Options Members of Its Equity Options Platform|
|81 FR 94437 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending Rule 971.1NY and To Make Permanent the Aspects of Customer Best Execution Auction That Are Subject to a Pilot|
|81 FR 94462 - Self-Regulatory Organizations; National Securities Clearing Corporation; Order Granting Approval of Proposed Rule Change To Accelerate Its Trade Guaranty, Add New Clearing Fund Components, Enhance Its Intraday Risk Management, Provide for Loss Allocation of “Off-the-Market Transactions,” and Make Other Changes|
|81 FR 94460 - 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 94454 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.8, Order Types, and Rule 11.11, Routing to Away Trading Centers, To Enhance the Exchange's Midpoint Routing Functionality|
|81 FR 94442 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Market Data Section of Its Fee Schedule To Adopt Fees for EDGX Summary Depth and Amend Fees for EDGX Depth|
|81 FR 94473 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Rule 3.2 and NYSE Arca Equities Rules 1.1, 3.2, 10.3, 10.8, 10.13, and 14|
|81 FR 94458 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; C2 Options Exchange, Incorporated; Order Approving a Proposed Rule Change in Connection With a Proposed Corporate Transaction Involving CBOE Holdings, Inc. and Bats Global Markets, Inc.|
|81 FR 94434 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Debit/Credit Price Reasonability Check for Complex Orders|
|81 FR 94469 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Debit/Credit Price Reasonability Checks for Complex Orders|
|81 FR 94457 - Delaware Management Business Trust, et al.; Notice of Application|
|81 FR 94448 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of No Objection to Advance Notice Filing To Accelerate Its Trade Guaranty, Add New Clearing Fund Components, Enhance Its Intraday Risk Management, Provide for Loss Allocation of “Off-the-Market Transactions,” and Make Other Changes|
|81 FR 94416 - Certain Carbon and Alloy Steel Products; Commission Determination To Review an Initial Determination Granting Respondents' Motion To Terminate Complainant's Antitrust Claim; Request for Written Submissions and Setting of Date for Possible Oral Argument|
|81 FR 94365 - Greybull Valley Irrigation District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene|
|81 FR 94420 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: State and Local Justice Agencies Serving Tribal Lands (SLJASTL): Census of Prosecutor Offices Serving Tribal Lands (CSLPOSTL)|
|81 FR 94419 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Reinstatement to a Previously Approved Collection: State and Local Justice Agencies Serving Tribal Lands (SLJASTL): Census of State and Local Law Enforcement Agencies Serving Tribal Lands (CSLLEASTL)|
|81 FR 94415 - Final Environmental Impact Statement for the Cook Inlet Outer Continental Shelf Oil and Gas Lease Sale 244; MMAA104000|
|81 FR 94422 - Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2017 Adverse Effect Wage Rates|
|81 FR 94427 - Agency Information Collection Activities: Comment Request|
|81 FR 94477 - Determination of Trade Surplus in Certain Sugar and Syrup Goods and Sugar-Containing Products of Chile, Morocco, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Peru, Colombia, and Panama|
|81 FR 94414 - States' Decisions on Participating in Accounting and Auditing Relief for Federal Oil and Gas Marginal Properties|
|81 FR 94421 - Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: Adverse Effect Wage Rate for Range Occupations in 2017|
|81 FR 94422 - Agency Information Collection Activities; Comment Request; Workforce Innovation Fund Grants Reporting and Recordkeeping Requirements|
|81 FR 94275 - Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments’|
|81 FR 94400 - 30-Day Notice of Proposed Information Collection: Floodplain Management and Protection of Wetlands|
|81 FR 94401 - 30-Day Notice of Proposed Information Collection: Youth Homelessness Demonstration Program (YHDP)|
|81 FR 94408 - 30-Day Notice of Proposed Information Collection: Section 202 Housing for the Elderly and Section 811 Housing for the Disabled|
|81 FR 94457 - Submission for OMB Review; Comment Request|
|81 FR 94475 - Submission for OMB Review; Comment Request|
|81 FR 94404 - 30-Day Notice of Proposed Information Collection: Assessing Public Housing Authorities (PHAs) Compliance With Insurance Requirements Under the Consolidated Annual Contributions Contract and Regulations|
|81 FR 94402 - Privacy Act of 1974; Notice of a Computer Matching Program Between the Department of Housing and Urban Development (HUD) and the Department of Treasury|
|81 FR 94406 - 30-Day Notice of Proposed Information Collection: Recordkeeping for HUD's Continuum of Care Program|
|81 FR 94399 - 30-Day Notice of Proposed Information Collection: FHA-Application for Insurance of Advance of Mortgage Proceeds|
|81 FR 94399 - 30-Day Notice of Proposed Information Collection: 24 CFR Part 58, Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities|
|81 FR 94277 - Transponder Requirement for Gliders; Withdrawal|
|81 FR 94429 - Information Collection: NRC Form 314, Certificate of Disposition of Materials|
|81 FR 94430 - Design of Structures, Components, Equipment, and Systems, and Reactor Coolant System and Connected Systems Guidance|
|81 FR 94425 - National Environmental Policy Act: Kennedy Space Center-Center Master Plan|
|81 FR 94396 - Meeting of the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria|
|81 FR 94418 - Meeting of the Advisory Committee; Meeting|
|81 FR 94483 - Proposed Collection; Comment Request for Form 706|
|81 FR 94424 - Reissuance of OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication Under the Privacy Act”|
|81 FR 94374 - Information Collections Being Submitted for Review and Approval to the Office of Management and Budget|
|81 FR 94371 - Entercom License, LLC, Applications for Renewal of License for Station KDND(FM), Sacramento, California|
|81 FR 94321 - Submission for OMB Review; Comment Request|
|81 FR 94431 - Spent Fuel Heat Generation in an Independent Spent Fuel Storage Installation|
|81 FR 94433 - Restart of a Nuclear Power Plant Shut Down by a Seismic Event|
|81 FR 94380 - Privacy Act of 1974; Computer Matching Agreement|
|81 FR 94397 - National Institute on Deafness and Other Communication Disorders; Notice of Closed Meetings|
|81 FR 94397 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Meeting|
|81 FR 94396 - Center for Scientific Review; Notice of Closed Meetings|
|81 FR 94425 - Notice of Intent To Grant Exclusive Term License|
|81 FR 94231 - Removal of Regulations Relating to Special Registration Process for Certain Nonimmigrants|
|81 FR 94251 - Consolidated Audit Trail|
|81 FR 94281 - Air Plan Approval; WV; Infrastructure Requirements for the 2012 Fine Particulate Standard|
|81 FR 94259 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing Materials|
|81 FR 94283 - Air Plan Approval; Air Plan Approval and Air Quality Designation; GA; Redesignation of the Atlanta, Georgia 2008 8-Hour Ozone Nonattainment Area to Attainment|
|81 FR 94324 - Endangered and Threatened Species; Take of Anadromous Fish|
|81 FR 94246 - Credit for Lower Tier Small Business Subcontracting|
|81 FR 94310 - New England Fishery Management Council; Public Meeting|
|81 FR 94339 - North Pacific Fishery Management Council; Public Meeting|
|81 FR 94296 - Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Oregon Silverspot Butterfly in Northwestern Oregon|
|81 FR 94271 - Monetary Threshold for Reporting Rail Equipment Accidents/Incidents for Calendar Year 2017|
|81 FR 94230 - Availability of Information to the Public|
|81 FR 94326 - Takes of Marine Mammals Incidental to Specified Activities; St. George Reef Lighthouse Restoration, Maintenance, and Tour Operations at Northwest Seal Rock, Del Norte County, California|
|81 FR 94267 - Significant New Use Rules on Certain Chemical Substances; Technical Correction|
|81 FR 94296 - Petition for Reconsideration of Action in Rulemaking Proceeding|
|81 FR 94240 - Availability of Information Under the Freedom of Information Act|
|81 FR 94238 - Technical Amendments and Corrections|
|81 FR 94405 - Federal Property Suitable as Facilities To Assist the Homeless|
|81 FR 94234 - Energy Conservation Standards for Commercial Water Heating Equipment: Availability of Updated Analysis Results|
|81 FR 94905 - Semiannual Regulatory Agenda|
|81 FR 94897 - Regulatory Flexibility Agenda|
|81 FR 94893 - Unified Agenda of Federal Regulatory and Deregulatory Actions|
|81 FR 94889 - Semiannual Regulatory Flexibility Agenda|
|81 FR 94853 - Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2016|
|81 FR 94849 - Semiannual Regulatory Agenda|
|81 FR 94843 - Semiannual Regulatory Agenda|
|81 FR 94839 - Regulatory Flexibility Agenda|
|81 FR 94829 - Semiannual Regulatory Agenda|
|81 FR 94823 - Semiannual Regulatory Agenda|
|81 FR 94821 - Regulatory Agenda|
|81 FR 94817 - Unified Agenda of Federal Regulatory and Deregulatory Actions|
|81 FR 94809 - Fall 2016 Regulatory Agenda|
|81 FR 94807 - Unified Agenda of Federal Regulatory and Deregulatory Actions|
|81 FR 94805 - Semiannual Agenda and Fiscal Year 2016 Regulatory Plan|
|81 FR 94783 - Department Regulatory Agenda; Semiannual Summary|
|81 FR 94777 - Semiannual Agenda of Regulations|
|81 FR 94775 - Regulatory Agenda|
|81 FR 94769 - Semiannual Regulatory Agenda|
|81 FR 94765 - Semiannual Regulatory Agenda|
|81 FR 94755 - Unified Agenda of Federal Regulatory and Deregulatory Actions|
|81 FR 94741 - Regulatory Agenda|
|81 FR 94735 - Semiannual Regulatory Agenda|
|81 FR 94733 - Unified Agenda of Federal Regulatory and Deregulatory Actions|
|81 FR 94729 - Improving Government Regulations; Unified Agenda of Federal Regulatory and Deregulatory Actions|
|81 FR 94713 - Fall 2016 Semiannual Agenda of Regulations|
|81 FR 94703 - Semiannual Regulatory Agenda, Fall 2016|
|81 FR 94495 - Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2016|
Animal and Plant Health Inspection Service
Inspector General Office, Agriculture Department
National Oceanic and Atmospheric Administration
Air Force Department
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Fish and Wildlife Service
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Office of Natural Resources Revenue
Employment and Training Administration
Information Security Oversight Office
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Comptroller of the Currency
Foreign Assets Control Office
Internal Revenue Service
United States Mint
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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Office of Government Ethics (OGE).
Interim final rule.
The U.S. Office of Government Ethics (OGE) is updating its Freedom of Information Act (FOIA) regulation to implement changes in accordance with the FOIA Improvement Act of 2016.
This interim final rule is effective December 23, 2016. Written comments are invited and must be received on or before January 23, 2017.
You may submit written comments to OGE on the interim final rule by any of the following methods:
Jennifer Matis, Assistant Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917; Telephone: 202-482-9216; TTY: 800-877-8339; FAX: 202-482-9237.
On June 30, 2016, the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (the Act) was enacted. The Act specifically requires all agencies to review and update their Freedom of Information Act (FOIA) regulations in accordance with its provisions. OGE is making changes to its regulations accordingly, including correcting citations, highlighting the electronic availability of records, implementing the “rule of three” for frequently requested records, notifying requesters of their right to seek assistance from the FOIA Public Liaison and the Office of Government Information Services, changing the time limit for appeals, implementing the foreseeable harm standard, describing limitations on assessing search fees if the response time is delayed, and adding new annual reporting requirements.
Pursuant to 5 U.S.C. 553(b), I find that good cause exists for waiving the general notice of proposed rulemaking and public comment procedures as to these technical amendments. The notice and comment procedures are being waived because these amendments, which concern matters of agency organization, procedure and practice, are being adopted in accordance with mandates required by the FOIA Improvement Act of 2016, which requires that agencies amend their FOIA regulations not later than 180 days after the date of enactment. It is also in the public interest in order to provide notice to requestors of the additional time to file appeals.
As the Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this interim final rule would not have a significant economic impact on a substantial number of small entities because it primarily affects individuals requesting records under the FOIA.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this regulation does not contain information collection requirements that require approval of the Office of Management and Budget.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 5, subchapter II), this rule would not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select the regulatory approaches that maximize net benefits (including economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. In promulgating this rulemaking, OGE has adhered to the regulatory philosophy and the applicable principles of regulation set forth in Executive Orders 12866 and 13563. The rule has not been reviewed by the Office of Management and Budget because it is not a significant regulatory action for the purposes of Executive Order 12866.
As Director of the Office of Government Ethics, I have reviewed this rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.
Administrative practice and procedure, Archives and records, Confidential business information, Freedom of information, Reporting and recordkeeping requirements.
For the reasons set out above, OGE amends 5 CFR part 2604 as follows:
5 U.S.C. 552; 5 U.S.C. App. 101-505; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216.
(4) Copies of records created by OGE that have been released to any person under subpart C of this part and that, because of the nature of their subject matter, OGE determines have become or are likely to become the subject of subsequent requests for substantially the same records or that have been requested three or more times; and
(a) OGE will maintain and make available for public inspection in an electronic format a current index of the materials available on its Web site that are required to be indexed under 5 U.S.C. 552(a)(2).
(b) * * *
(4) A statement that the denial may be appealed under § 2604.304, and a description of the requirements of that section; and
(5) A statement of the right of the requester to seek dispute resolution services from the FOIA Public Liaison or the Office of Government Information Services (OGIS).
(d) If OGE does not comply with one of the time limits under § 2604.305, it will not assess search fees (or in the case of a requester described under § 2604.502(c), duplication fees), except as provided in paragraphs (d)(1) through (d)(3) of this section.
(1) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and OGE provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), a failure to comply with the time limit is excused for an additional 10 days.
(2) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages are necessary to respond to the request, OGE may charge search fees (or in the case of requesters described under § 2604.502(c), duplication fees) if OGE has provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and OGE has discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii).
(3) If a court has determined that exceptional circumstances exist, as
On or before February 1 of each year, OGE will submit to the Office of Information Policy at the United States Department of Justice and to the Director of OGIS an Annual FOIA Report. The report will include the information required by 5 U.S.C. 552(e). OGE will electronically post on its Web site the report and the raw statistical data used in each report, in accordance with 5 U.S.C. 552(e)(3).
Animal and Plant Health Inspection Service, USDA.
We are amending the fruits and vegetables regulations to allow the importation of lemons from northwest Argentina into the continental United States. As a condition of entry, lemons from northwest Argentina would have to be produced in accordance with a systems approach that includes requirements for importation in commercial consignments; registration and monitoring of places of production and packinghouses; pest-free places of production; grove sanitation, monitoring, and pest control practices; treatment with a surface disinfectant; lot identification; and inspection for quarantine pests by the Argentine national plant protection organization. Additionally, lemons from northwest Argentina will have to be harvested green and within a certain time period, or treated for Mediterranean fruit fly in accordance with an approved treatment schedule. Lemons from northwest Argentina will also be required to be accompanied by a phytosanitary certificate with an additional declaration stating that the lemons have been inspected and found to be free of quarantine pests and were produced in accordance with the requirements. This action allows for the importation of lemons from northwest Argentina into the United States while continuing to provide protection against the introduction of quarantine pests.
Effective January 23, 2017.
Mr. Juan A. (Tony) Román, Senior Regulatory Policy Specialist, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 851-2242.
The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-75, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests within the United States.
On May 10, 2016, we published in the
We solicited comments concerning our proposal for 60 days ending July 11, 2016. We extended the deadline for comments until August 10, 2016, in a document published in the
One commenter stated that the proposed rule failed to comply with the requirements of the National Environmental Policy Act (NEPA). Specifically, the commenter stated that the proposed rule is a major Federal action that significantly affects the human environment, as set forth in 40 CFR 1508.18 and 1508.27, respectively, and that the Animal and Plant Health Inspection Service (APHIS) should have prepared an environmental impact statement or environmental assessment (EA). The commenter further stated that none of the APHIS categorical exclusions set forth in 7 CFR 1b.3 apply, therefore at a minimum, APHIS is obligated to prepare an EA.
APHIS notes that the APHIS NEPA implementing regulations in 7 CFR part 372 specify that additional routine measures used by APHIS are categorically exempt from NEPA, in addition to those measures set forth in 7 CFR 1b.3. The measures in this rule that will occur within the United States fall within the scope of these additional routine measures. Accordingly, a categorical exclusion was prepared.
We do not agree that the rule meets Council on Environmental Quality requirements for a “significant” Federal action, and thus, by definition, cannot be a “major” Federal action (a type of significant action). The rule is not contextually significant from a policy standpoint because it does not substantially alter existing policy regarding market access requests, and has severity/intensity only if one concedes that the mitigations specified in the rule are ineffective in precluding the introduction of quarantine pests. We consider them effective, for reasons discussed below.
One commenter stated that APHIS must take all available measures to preclude introduction of invasive species into the United States.
APHIS agrees. Under the Plant Protection Act (7 U.S.C. 7701
One commenter noted that APHIS has also recently published proposed rules to allow for the importation of citrus from South Africa (79 FR 51273, Docket No. APHIS-2014-0015) and Chile (81
We disagree with the commenter that the other rules must be finalized before we can proceed with this rule. APHIS considers each of its rulemakings as a distinct regulatory action. This is consistent both with the language of the Administrative Procedure Act (5 U.S.C. 551-559) and with case history regarding its implementation.
Many commenters stated that APHIS should conduct an additional site visit before the rule is implemented. Many of those commenters also stated that representatives of State governments and subject matter experts should be involved in the site visit.
APHIS conducted an additional site visit to review the details of the draft operational workplan in September of 2016. In addition to APHIS personnel, a representative from the California Department of Food and Agriculture and a former plant pathologist from the United States Department of Agriculture, Agricultural Research Service (ARS) participated in the site visit as observers. The site visit revealed nothing that would require a revision of the PRA.
Some commenters stated that the site visit should include a holistic review of Argentina's production system. Other commenters stated that Argentina's traceability system provides holistic records of their production system.
APHIS conducted a thorough review of Argentina's traceability system. We looked at the requirements for growers signing up, initial site visits of production sites, ongoing oversight during the growing season, field and packinghouse inspection, approval for movement and the final inspection for phytosanitary certificates. We also reviewed the computer system they use, how users are added, who controls movement and harvest approvals, and who issues phytosanitary certificates. Based on that review, we consider Argentina's traceability system to be robust, and we will use it for traceback as necessary. However, as specified in the proposed rule, we also consider it necessary to be able to identify lots of lemons through the export process, from the place of production to arrival at the port of entry. This establishes traceability beyond the scope of the Argentine domestic traceability system.
One commenter stated that Argentina's traceability system will not be able to trace detections of quarantine pests in U.S. orchards or urban areas back to places of production.
APHIS is confident that if the mitigations in the rule are adhered to, quarantine pests will not be introduced into United States orchards or urban areas.
One commenter stated that Argentina's traceability system has limited utility for citrus black spot (CBS), given its prolonged latency period.
As we explained in the PRA, fruit is not a pathway for CBS.
One commenter stated that the site visit should specifically focus on the infrastructure of the national plant protection organization (NPPO) of Argentina. Another commenter stated that the site visit should specifically focus on NPPO oversight of places of production.
The NPPO of Argentina is the Servicio Nacional de Sanidad y Calidad Agroalimentaria (SENASA). During the September 2016 site visit, we looked at SENASA's infrastructure and asked questions to address their capacity to provide oversight. We remain confident that SENASA will be able to adhere to the requirements of the systems approach.
Some commenters stated that the site visit should specifically focus on identifying pest populations in or near production sites.
During the site visit, we asked questions about pest populations, and we looked ourselves at fruit fly traps and at the citrus for signs of pests. We did not discover anything that requires revisions to the PRA.
One commenter stated that the site visit should specifically focus on organic production sites.
APHIS did specifically ask about organic production. Argentina may in the future ship organic fruit, but currently they do not. Current packinghouse practices include chemical treatments that are not organic, so any fruit that arrived from an organic production site would lose its organic status during packinghouse processing.
We will ask SENASA about organic production in northwest Argentina, as well as pest control guidelines they have developed for organic producers. We note that there are provisions in the systems approach that preclude the commingling of organic lemons and lemons for export to the United States later in the production chain.
One commenter stated that the site visit should be conducted during the summer months in Argentina.
The 2015 site visit occurred in June, during harvest season in Argentina. For this reason, APHIS considered a second site visit during the September/October timeframe to be sufficient.
One commenter stated that two additional site visits are needed. Specifically, the commenter stated that after the September site visit, a second fact-finding trip should be made to review the harvesting and packing operations in Argentina. The commenter stated that a trip at that time is needed since so many steps in the systems approach take place during the harvesting and packing operations.
APHIS disagrees. As we explained above, the 2015 site visit occurred in June, which is during the harvest season in Argentina. For this reason, we do not consider two additional site visits to be necessary.
Two commenters stated that industry stakeholders should be allowed to consult with trip members on their findings.
APHIS prepared a site visit report outlining the findings of the visit. The site visit report is available on the APHIS Web site at
Many commenters expressed concern that the findings of the 2007 site visit are outdated.
The trip in 2007 was conducted by APHIS risk assessors to evaluate pest complexes in Argentina in order to prepare the PRA. Information from this trip served as a baseline primarily for the pest list in the PRA. The PRA, as other commenters noted, has been continually updated since this trip through means that APHIS routinely uses to update PRAs, such as literature review and ongoing consultation with the NPPO of Argentina. More specifically, the PRA was updated in 2014 after publication of new research results on seed transmission of citrus variegated chlorosis (CVC) in citrus. The PRA was also updated in 2014 in response to a new finding of citrus greening, also known as Huanglongbing (HLB), in Argentina. The PRA was reviewed by APHIS personnel at the same time to address comments from Argentina regarding the pest list. Furthermore, APHIS conducted a site visit just last year, in June of 2015, and the information gathered during that visit was used to update the PRA before the proposed rule was published.
Two commenters stated that the 2015 site visit was not a technical review of Argentina's program.
The commenters are mistaken. The 2015 site visit was a technical review of Argentina's program.
Three commenters stated that APHIS did not provide enough information to the public regarding the 2015 site visit to evaluate its adequacy. Two commenters stated that APHIS' slow response to a Freedom of Information Act (FOIA) request for documents regarding the 2015 site visit is an indication of the inadequacy of the trip.
APHIS has received the FOIA request and is in the process of responding to it. The time taken to respond to the FOIA request is consistent with normal timeframes for such requests and not a reflection of the adequacy of the trip.
One commenter stated that APHIS' willingness to conduct another site visit is an indication of the inadequacy of the 2015 site visit.
Usually, APHIS conducts one site visit as close to the implementation of a new systems approach as possible in order to aid in development of the operational workplan. It was therefore entirely in keeping with APHIS policy to conduct the September 2016 site visit prior to implementing this final rule, and is not indicative of flaws in the 2015 visit.
The 2015 site visit team included several APHIS risk managers who have extensive experience in evaluating foreign production systems to determine the ability of those systems to meet requisite mitigation measures.
One commenter stated that updated information appears to have been incorporated into the PRA in a piecemeal fashion, without checking whether any conclusions or assumptions were affected.
APHIS notes that we have updated the PRA several times. Appendix 1 of the PRA summarizes updates to the draft PRA in response to public and peer review comments; Appendix 2 summarizes updates to the PRA made between 2008 and 2015 in response to new scientific information. Any time we incorporated new material into the PRA we reviewed the PRA to check the conclusions.
One commenter stated that information provided by SENASA is unreliable.
We disagree with the commenter. We have conducted two site visits during which we have verified the information provided by SENASA. They have also answered all the questions we have asked and provided all information we have requested.
Two commenters stated that stakeholder comments on the PRA appear to have been ignored.
APHIS posts PRAs and other documents for stakeholder review. As noted on the Web site on which the documents are posted, while stakeholder comments may result in changes to the PRA, as well as the RMD and the rule, it is not APHIS policy to compile or post responses to the comments received. This is because these documents are also made available for review and comment along with the rules and notices that propose to grant market access. Any comments that we receive on the documents during that comment period are addressed in a final regulatory action.
APHIS reviewed all of the comments that we received on the PRA and RMD. Certain comments, such as statements agreeing that
Other suggested revisions, such as revising the RMD to prohibit the importation of lemons with leaves attached, would have made the rule more stringent that our domestic requirements for the interstate movement of citrus fruit from areas quarantined for pests and diseases of citrus, and were not incorporated for that reason. Similarly, other revisions would have made the PRA or RMD inconsistent with how other APHIS documents discuss the same pest of concern or mitigation structure.
Finally, certain comments, such as that the NPPO of Argentina could not be trusted to abide by the systems approach, were reiterated during the comment period and dismissed for reasons discussed below under the heading “Risk Management Document.”
One commenter stated that a footnote in the Executive Summary to the PRA seems to define the term “commercially produced,” but in fact only describes conditions of the fruit after harvest and processing. The commenter stated that the term “commercially produced” should be limited to conditions at places of production.
The term “commercially produced” is equivalent to “commercial consignments.” It includes all aspects of the production system: The manner in which the fruit was grown and harvested, the quality of the fruit, the manner in which it is packaged, the quantities packaged, and the requisite accompanying documentation.
One commenter stated that the PRA and proposed rule did not identify pests of concern for Argentine lemons.
The pest list in the PRA identifies pests of lemons that are known to exist in Argentina.
One commenter stated that four pathogens—
APHIS notes that, while these could follow the pathway, the capacity for introduction or transmission of disease is so epidemiologically insignificant that further analysis was not warranted.
One commenter stated that citrus leprosis virus should have been selected for further analysis in the PRA as it is a quarantine pest likely to follow the pathway.
Citrus leprosis virus is not systemic and cannot be transmitted apart from viruliferous
One commenter stated that the citation in the PRA to the APHIS domestic fruit fly quarantine and regulations, which address Medfly was outdated and have been replaced with 7 CFR 301.32. The commenter noted that in the current regulations, only yellow lemons are regulated articles for Medfly.
The commenter is correct; the citations were outdated. However, this does not affect the conclusions of the PRA that green lemons are a poor host for Medfly.
Several commenters stated that the pest risk associated with importation of lemons is too high, and that the domestic citrus industry would suffer as a result of pest introductions.
If the mitigations in the rule are adhered to, this pest risk will be mitigated. Furthermore, some of these commenters appear to have overestimated the likelihood of introduction associated with certain of
One commenter stated that
APHIS notes that
One commenter stated that
In that article, Childers and Rodrigues state that the only confirmed vector of citrus leprosis in the Western Hemisphere is
More importantly, a high risk rating would not have changed our mitigations for the pests. Under APHIS policy, both medium risk and high-risk pests are subject to pest-specific mitigations beyond port of entry inspection, and the mitigations we prescribed to address
One commenter stated that the overall risk rating should have been higher.
As we explained above, a higher overall risk rating would not have changed the mitigation structure.
One commenter asked why, if “not be detected at the port of entry” did not impact risk ratings, port of entry inspection is a component of the systems approach.
“Not be detected at the port of entry” was removed as a criterion in the PRA because APHIS does not have enough information about relative likelihood of detection at the port of entry to be able to weight this criterion relative to other elements. As a result, this criterion could not substantially impact the risk ratings.
This does not imply that port of entry inspections are an ineffective component of a systems approach. Port of entry inspections by U.S. Customs and Border Protection (CBP) are, in fact, capable of detecting quarantine pests and are a significant mitigation against pests entering the United States. For example, in December 2015, CBP detections of Medfly larvae on Spanish tomatoes and Moroccan citrus led us to suspend market access for those commodities, pending investigations.
One commenter asked why, if fruit is not an “epidemiologically significant” pathway for
While we do not consider fruit to be an epidemiologically significant pathway for these pests, the pests are subject to domestic quarantines within the United States. For the sake of consistency with domestic regulations regarding the interstate movement of fruit from areas quarantined for CBS, sweet orange scab, and Xcc, we would require fruit to be washed, brushed, waxed, and surface disinfected. It is worth noting that such washing, brushing, waxing, and disinfecting are standard packinghouse procedures both domestically and internationally.
Likelihood and Consequences of Establishment
Several commenters stated that citrus-producing areas are particularly at risk for establishment of quarantine pests that could follow the pathway.
Incorporating information regarding likelihood of establishment would not have affected the pest risk ratings or the risk mitigation structure. As we explained above, both medium and high-risk pests are subject to pest-specific mitigations beyond standard port-of-entry inspection.
One commenter stated that the PRA does not acknowledge that backyard citrus in California is in proximity to ports of entry. Other commenters stated that the PRA does not recognize that most quarantine pest introductions first occur in urban areas, and are undetected. Three commenters stated that urban areas in Texas and California abut production areas and expressed concern that pests could become established in urban areas with backyard citrus and then spread into production areas.
As we noted above, incorporating this information into the PRA would not have affected either the pest risk ratings or the risk mitigation structure.
One commenter stated that Climate-Host interaction for
There is no mention in the report of whether the conditions under which transmission to
In the PRA, we identified the dispersal potential of
The commenter is correct that the dispersal potential for both
One commenter stated that the environmental impact potential for
We consider the ratings given to
Accordingly, for a non-viruliferous
Since citrus leprosis virus inoculum is not shed to offspring, this would also have to occur during the infected mite's lifetime. We consider the probability of this occurring to be extremely remote.
One commenter stated that the likelihood of introduction for Medfly should have considered lemons a conditional host, rather than a conditional non-host.
The designation of lemons as a conditional non-host of Medfly was based on research published by ARS scientists
One commenter stated that the PRA did not consider introduction via smuggling or diversion. The commenter expressed concern that the fruit could be carried to a home while vectoring a pest or disease.
The PRA addressed the plant pest risk associated with the importation of commercially produced and commercially packed fresh lemon fruit from northwest Argentina into the United States. Fruit that is not commercially grown or packed are outside the scope of the risk assessment.
One commenter stated that the RMD requirements are inadequate to eliminate the risk of introduction of the quarantine pests identified in the PRA, but did not provide the basis for their concern.
Some commenters stated that the RMD and rule contain safeguards to address plant pest risk, and one commenter stated that similar systems approaches for citrus from other countries have proven effective. One commenter, however, stated that there are no similar systems approaches because no other growing area harbors this combination of pests and diseases of citrus, but is still asking to market fresh fruit.
APHIS notes that the PRA for citrus from Uruguay had a very similar quarantine pest list—they did not have
Five commenters expressed concern that Argentina cannot be trusted to abide by mitigations in the RMD and rule. Some of these commenters cited incidents that they believed showed Argentina handling sanitary or phytosanitary issues in deceptive ways. One commenter stated that, as a result of the history of SENASA, APHIS needs to exercise continual monitoring and oversight over the program.
Argentina is a World Trade Organization member country and signatory on the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS agreement). As such, it has agreed to respect the phytosanitary measures the United States imposes on the importation of plants and plant products from Argentina when the United States demonstrates the need to impose these measures in order to protect plant health within the United States. The PRA that accompanied the proposed rule provided evidence of such a need. Argentina has demonstrated the ability to comply with U.S. regulations with respect to other export programs.
We disagree with several of the examples cited as recent prevarication by SENASA. APHIS became aware of the presence of
That said, the 2015 site visit specifically evaluated SENASA's oversight of the Argentine production system for lemons to determine whether the provisions of the systems approach could be implemented and maintained.
Finally, as provided in paragraph (a) of the proposed rule, APHIS would be directly involved in monitoring and auditing implementation of the systems approach in Argentina. A determination that the systems approach had not been fully implemented or maintained would result in remedial actions, including possible suspension of the export program for Argentine lemons.
One commenter expressed concern that the United States Department of Agriculture (USDA) cannot be trusted to abide by mitigations in the RMD and rule. The commenter referred to a scandal at Hunts Point Terminal Produce Market in the Bronx, NY, as an example of USDA personnel accepting bribes and kickbacks. The commenter stated that even if such events are not commonplace, they still must be factored into the risk assessment.
The bribery and kickback scheme referenced by the commenter was revealed in 1999 after a 3-year investigation by the USDA Inspector General and involved Agriculture Marketing Service personnel, who have no role in the implementation of this rule.
One commenter asked why, if the mitigations in the RMD are effective, the PRA discusses likelihood and consequences of introduction.
The PRA follows our guidelines for PRAs. As such, it discusses the likelihood and consequences of quarantine pests that could follow the pathway on lemons from northwest Argentina to the United States, in the absence of any mitigations. This assessment is a necessary aspect of our evaluation of the risk rating for the pests.
The RMD lists the mitigations that will be applied to prevent pests from following the pathway and being introduced.
Three commenters stated that European Union (EU) detections of CBS on fruit from Argentina indicate the inability of Argentina to follow a systems approach.
We disagree with the EU regarding the transmissibility of CBS via commercially produced fruit. The point of these statements in the PRA and RMD was to point out that Argentina has been able to implement and abide by a systems approach for lemons that rests on SENASA having the wherewithal to meet phytosanitary requirements. We note that the RMD stated that Argentina proposed the EU systems approach to us in its entirety as a mitigation structure, and that we rejected adopting it outright. Furthermore, the systems approach for Argentine citrus to the EU is the same systems approach applicable to U.S. citrus to the EU, indicating they consider us equivalent in terms of ability to adhere to phytosanitary requirements.
It is also worth noting that the EU audit
One commenter stated that there is no evidence the EU systems approach for lemons from Argentina is equivalent to the systems approach proposed by APHIS.
The two systems approaches are not equivalent, and we did not suggest they were. Rather, we made reference to the EU systems approach to illustrate that Argentina has the capacity to adhere to a stringent systems approach, so that it is plausible that they could adhere to our systems approach as well. We state in the RMD that Argentina proposed that we simply adopt the EU systems approach, and we rejected that proposal.
One commenter stated that, because of proximity of ports of entry to urban areas, and urban areas to citrus production in the United States, any lapses from systems approach will have dire consequences.
The commenter seems to be assuming that, if infested or infected fruit is shipped to the United States, it will not be detected at a port of entry inspection, and will necessarily result in the introduction of quarantine pests into the United States. This assumption is, in essence, that port of entry inspections are ineffective at detecting plant pests. We disagree with this assumption; port of entry inspections are an effective mitigation and have precluded two potential introductions of Medfly in the last year alone.
One commenter stated that there is no definition or list of criteria for pests of “quarantine significance” in either the PRA or RMD. The commenter asked what the criteria are for determining what pests are of quarantine significance.
The PRA, RMD, and rule use the terms “quarantine significance” and “quarantine pest” interchangeably. In § 319.56-2 of the regulations, we define a quarantine pest as “[a] pest of potential economic significance to the area endangered by it and not yet present there, or present but not widely distributed there and being officially controlled.”
One commenter noted that the RMD says 9 pests of quarantine significance were identified, but the PRA lists 10. The commenter asked for an explanation of this apparent discrepancy.
The PRA acknowledges that CBS could follow the pathway, and is a quarantine pest, but then cites the 2010 PRA, which determined that, even in the absence of packinghouse procedures, fruit is an “epidemiologically insignificant” pathway for CBS, and the conditions that would allow for transmission from fruit are nearly impossible to occur, even in the absence of standard packinghouse procedures. The RMD looked at commercially produced fruit, that is, fruit subject to packinghouse procedures and standard industry practices. This led us to drop CBS from the list of quarantine pests.
One commenter noted that in section 1 of the RMD, guidelines for growers participating in the program are mentioned as needing to be followed. The commenter asked what these guidelines are.
In the RMD, we explain that these are pest control guidelines that a place of production may need to meet in order to qualify for registration with SENASA.
One commenter asked if the operational workplan will contain only SENASA's requirements.
Generally, the operational workplan pertains to APHIS, the NPPO of the exporting region, and growers, packinghouses, and persons commercially involved in chain of production. It contains details that are necessary for day-to-day operations needed to carry out provisions of the rule and RMD. This one will be no different.
One commenter asked what SENASA's requirements are under the operational workplan.
SENASA's requirements include everything specified within the RMD: Registration; regular inspections; pest control guidelines; and inspections to determine that treatment guidelines are being adhered to.
Additionally, Argentina has place of production requirements apart from APHIS' requirements that pertain to all citrus groves in the country. These include sanitary guidelines that are developed in consultation with Argentine subject matter experts and address regulated nonquarantine pest populations that could affect marketability of the citrus.
One commenter noted that the RMD specifies that SENASA must ensure that growers are following the “export protocols.” The commenter asked what those protocols are, and stated that they should be made available for public review and comment.
The protocols are conditions for export established by APHIS in the operational workplan. The RMD and the regulatory requirements derived from it include a general description of all the phytosanitary measures necessary to mitigate pest risk. The operational workplan specifies details that are necessary for day-to-day operations needed to carry out provisions of the rule and RMD. Operational workplans are available to the public upon request only after a rule has been finalized and the operational workplan has been signed by APHIS and the NPPO of the exporting country. With respect to consulting with stakeholders, APHIS typically conducts outreach and consultation during the risk assessment and management phases.
One commenter stated that section 16 of the RMD should specify that fruit fly detections must fall below a threshold before a registered place of production can resume shipping.
Immature lemons are a poor host of Medfly. Because of this, prevalence levels at a place of production are not germane to whether Medfly are more likely to follow the pathway on immature Argentine lemons, and it would be incommensurate with risk to cut off a place of production based on Medfly detections.
This policy is consistent with our existing importation requirements for lemons from other countries that have Medfly. We have no reason to believe these existing requirements have been ineffective.
One commenter stated that places of production should be suspended if
In the RMD, we said place of production “may be suspended” and are “subject to suspension” out of recognition that the investigation could determine that the fruit was clean when it left the orchard, and the pest was introduced later in the production chain.
Two commenters noted that the rule doesn't contain mitigations for CVC and its vectors. The commenters expressed concern that potential vectors could transmit CVC if they were allowed to hitchhike on exports.
Glassy-winged sharpshooters are the vector of concern for CVC. They are the subject of consistent surveys and are not in northwest Argentina. Were they to
One commenter noted that the RMD concludes that seeds are unable to transmit CVC directly. The commenter stated that this directly contradicts the regulations in 7 CFR 319.37-2, which consider CVC to be seed-transmitted.
A Federal Order published on May 19, 2016, relieved restrictions on citrus seed for CVC. The Federal Order is available on the APHIS Web site at
Four commenters expressed concern that the rule does not contain mitigations for HLB.
APHIS has examined whether fruit is a pathway for HLB, and determined that HLB is not transmitted via fruit. Therefore, mitigations for HLB are not necessary.
One commenter stated that APHIS should not trust SENASA on the scope of the HLB outbreak in Argentina.
Neither the severity of the HLB outbreak in Argentina, nor its distribution, affect whether HLB-specific mitigations need to be included in the rule. As we explained above, HLB is not transmitted via fruit.
The same commenter stated that APHIS should not trust SENASA on distribution of Asian citrus psyllid (ACP), a vector of HLB, in Argentina.
The distribution of ACP in Argentina is not necessary for us to evaluate the risk of it following the pathway via the importation of lemons. As documented in the PRA, standard packinghouse procedures will remove ACP from the fruit. Only commercially produced fruit, which is subject to such procedures and will therefore be free of ACP, can be exported to the United States.
One commenter stated that the PRA should include information about distribution of HLB in Argentina.
APHIS does not consider this information to be necessary, given that HLB is not transmitted via fruit.
One commenter expressed several concerns about CBS. The commenter stated that CBS is impossible to eradicate once introduced, that it can have a lengthy latency period, and that trees infected with CBS are unmarketable.
APHIS notes that we never questioned the quarantine significance of CBS, just its ability to become established via fruit.
One commenter stated that justifications in the PRA for why CBS will not follow the pathway are not accurate. The commenter stated that the PRA assumes farmers in Argentina all farm in the same intensive manner.
The commenter is mistaken. In the systems approach for Argentina lemons, we have incorporated the same mitigations for CBS for that we are using for Florida citrus. These mitigations are based on a separate scientific review, which can be viewed on the APHIS Web site at
Several commenters stated that APHIS erred in determining that CBS cannot follow the pathway on fruit. Another commenter expressed concern that CBS could become established in Southern California if infected fruit arrived at and were distributed through the Port of Long Beach.
Both Paul et al.
One commenter stated that APHIS did not take into account either the reality of the residential yards in Southern California, or the numerous interceptions of Argentine citrus for CBS symptoms in shipments to the EU in the years since 2010.
These two facts do not affect the conclusion on the 2010 PRA that the establishment of the disease via the movement of fruit requires a combination of biological and climatic conditions that are unlikely to occur.
One commenter stated that the spread of CBS in Florida could be indicative of errors in the 2010 PRA.
The PRA found Florida's environment to be conducive to the spread of CBS, and examined only transmission via fruit. The spread of CBS within Florida could have occurred through a pathway other than fruit, and is not in itself indicative of errors in the 2010 PRA.
One commenter stated that the EU Food Safety Commission in 2014 issued a scientific opinion which deemed the risk of entry of the causal agent of CBS as moderately likely for citrus fruit without leaves.
APHIS notes that the proposed conditions for importation of lemons from northwest Argentina are the same as the conditions we apply to export citrus from the United States. We also note that the causal organism of CBS has two life cycle stages: A sexual stage represented by the ascospores of
Several commenters asked how, if we do not know how CBS got into Florida, we know it cannot follow the pathway on fruit.
The PRA examined the biological and climatic conditions necessary for establishment of CBS through infected fruit, and determined that “the establishment of the disease via this pathway [the movement of fruit] requires a combination of biological and climatic conditions that are unlikely to occur.” It is important to acknowledge, as the EU scientific opinion did, that there are many possible pathways for the introduction of CBS, with some (such as smuggling of nursery stock) significantly more likely to result in establishment.
One commenter asked what circumstances would compel APHIS to require further mitigations for CBS in Argentina's packinghouses, and what mitigation steps it would be willing to institute in those circumstances.
We have considered the risk of CBS and how to mitigate it. Standard packinghouse procedures, including washing, brushing, disinfecting, treating, and waxing, address that risk
One commenter stated that the rule should restrict exports to areas of northwest Argentina that are free of CBS.
For the reasons discussed above, we do not consider this necessary.
One commenter asked why the Provinces of Catamarca and Jujuy were included in the rule when they are not major lemon-producing regions.
As we explained in the proposed rule, SENASA asked for market access for these provinces. We therefore included them in the PRA and found that lemons could be safely exported from these provinces subject to the conditions described in the proposed rule.
One commenter stated that
Citrus leprosis virus is not systemic. It could not be introduced into the United States, unless vectored by
One commenter stated that the details of the operational workplan need to be included in the regulations or otherwise made publicly available.
As we explained above, the mitigations in the operational workplan are the same as in the RMD and the rule. The operational workplan specifies details for day-to-day operations that are needed to carry out provisions of the rule and the RMD. As a result, operational workplans are living documents that change periodically to reflect new technologies and operational realities in the field.
One commenter asked what constitutes “direct involvement” in implementation and monitoring of the operational workplan.
The operational workplan provides APHIS with the standard operating procedures that the NPPO, places of production, packinghouses, and others involved in the production of the fruit will follow as part of the export program. Our oversight will include routine reviews and inspections of the program, but not continual oversight. That would be tantamount to mandatory preclearance program, which we do not consider necessary. The frequency with which we conduct site visits and review export program records will increase if any pest concerns are identified.
One commenter stated that a trust fund agreement to pay for APHIS personnel may be necessary.
A trust fund agreement is associated with preclearance programs in which there is continual APHIS oversight, which we do not consider warranted here.
One commenter stated that registration requirements should extend to contiguous orchards to mitigate the chance of contamination of the place of production during harvest after the initial freedom certification.
APHIS does not consider this to be necessary. As discussed above, the
One commenter stated that registering small places of production may increase pest risk.
We disagree that small places of production may represent a higher pest risk than large ones. In order to be registered with the NPPO and participate in the export program, the NPPO (and, as warranted, APHIS) must determine that the place of production or packinghouse is able to adhere to the systems approach. This is true regardless of the size of the place of production or packinghouse. Routine inspections by the NPPO, and the possibility of monitoring by APHIS, will corroborate ongoing maintenance of systems approach provisions at registered places of production and packinghouses.
We proposed to require lemons from Argentina to be harvested green and within the time period of April 1 and August 31. If the lemons are harvested yellow or harvested outside of that time period, they would have to be treated for Medfly in accordance with 7 CFR part 305 and the operational workplan. Two commenters asked how we would determine whether a lemon was green or not.
In the ARS study that determined that lemons are a conditional non-host of Medfly, the term “yellow” was used interchangeably with “mature.” Immature lemons were considered to be a poor host. For purposes of the systems approach, we consider any lemon that is not green as ripe enough to require cold treatment. We are using additional ARS research
Two commenters asked who will determine whether a lemon is green or yellow. One commenter asked where this determination will be made. That commenter also stated that APHIS employees should make the determination.
In Argentina, lemons are evaluated for color and graded as part of packinghouse procedures. The determination for color and grade is made by graders employed by SENASA.
One commenter stated that the finding that green fruit is harvested from March to May in Argentina appears to be based on 2007 information, which is outdated.
When green fruit is harvested in Argentina is irrelevant to the conclusions of the PRA. As we explained in the proposed rule, lemons that are harvested yellow would have to be treated for Medfly, regardless of the time of year in which they are harvested.
One commenter stated that the RMD and rule should be consistent with regard to when lemons do not need treatment.
The commenter seems to believe that there is a discrepancy between the RMD and the proposed rule because the requirement is phrased slightly differently, but this is not the case. Both the proposed rule and the RMD specify that a lemon must be green and shipped within the April-August window in order to avoid treatment.
One commenter expressed concern that the use of the term “safeguarded” in § 319.56-76(a)(8) is too vague. The commenter stated that the words “and protected from fruit fly infestation” should be inserted after the word “safeguarded” in that paragraph.
APHIS disagrees that this addition is necessary. We use the term “safeguarded” throughout the regulations to mean that fruit must be protected from infestation, or, in the case of treated fruit, reinfestation, by quarantine pests.
One commenter asked whether trucks and workers would be sanitized in between uses for U.S. exports and other uses, and if not, why not.
Packinghouse workers are required to wash their hands and wear clean protective clothing every time they enter the packinghouse. The fruit never touches the trucks; it is harvested and brought to the packinghouse in bins that are disinfected after each use. Fruit for
Several commenters asked how APHIS will determine pest-free places of production for
It is worth noting that we have no evidence that Argentine producers designate specific sites for fresh or processed production and use different production practices based on the intended use of the lemons. Rather, as a result of grading during packinghouse inspections, highly graded lots are designated for the fresh market, while the rest of the fruit goes to processing and other uses.
That being said, the rule specifies that APHIS will monitor implementation of the systems approach. This includes monitoring the distribution of
One commenter stated that APHIS should ask SENASA to prepare a grid-type schematic that shows the location of processed orchards as compared with orchards where fruit is grown for the fresh export market. The commenter stated that this analysis is essential, and that if SENASA will not prepare it, then APHIS should prepare it.
The grid suggested by the commenter is not possible. Orchards in Argentina are not designated for a particular type of production. Rather, as we explained above, lots are designated based on grading conducted in packinghouses.
Two commenters stated that the biometric sampling protocol for
APHIS disagrees. Mites have limited mobility. The commenters are referring to the fact that some species of mites are known to travel longer distances by ballooning, where the mites produce streamers of silk and travel with wind currents for longer distances. According to Childers and Rodrigues (2011),
The systems approach for
One commenter stated that APHIS only described the
APHIS disagrees. Mites and other small organisms have been studied by collecting them from their habitat through sieves that concentrate them. Southwood and Henderson in their classic textbook
This method of sampling has been used since the 18th century; use of Berlese funnels and sieves is ubiquitous in sampling mites and other small organisms in various habitats. The agricultural quarantine and inspection data that APHIS collects routinely suggests that this method, which has been used for almost 20 years by APHIS as a mitigation measure, has been very effective in detecting
One commenter stated that it is impossible to know whether 100 samples is sufficient without knowing the size of places of production.
Regardless of the size of the orchard, 100 samples provides 95 percent confidence of a 3 percent infestation rate. This confidence level is sufficient given that
One commenter stated that the
APHIS disagrees. Mites, including
Very few insects and mites do not have aggregated distributions, and there is no evidence that
Two commenters stated that biometric sampling may miss immature
The mite exists in populations that contain eggs, immature stages, and adults. Only the adults can be identified reliably through microscopic examination of the filtrate from the sieve. The sieve will collect adult mites. The likelihood of only eggs or nymphs being present is very low, so APHIS can use the sieve sampling method to reliably detect populations of mites at production sites. APHIS will be requiring a number of samples and the probability that only eggs and larvae of the target mite would be present in all of the samples is very low. Moreover, if one sample detects adult
One commenter asked how APHIS determined the efficacy of Chilean citrus protocol.
As we state in the RMD, our determination was based on the absence of detections of infested fruit in the export pathway over almost 20 years.
One commenter questioned whether it is appropriate to compare the citrus-growing area that exists in Chile to the growing areas in Northwest Argentina for purposes of dealing with
The commenter is mistaken about the climate in northwest Argentina. The scientists at the Obispo Columbres Agroindustrial Station, SENASA, and the lemon growers in Tucumán told us that northwest Argentina does not have high rainfall. On the contrary, rainfall is low and the lemon groves are often irrigated. Therefore, the mite populations should face similar climates in the citrus growing portions of Chile and the lemon growing parts of northwest Argentina. During the September 2016 site visit, we asked the scientists at the Obispo Columbres Agroindustrial station about the mites. They said that they had found two of the three
One commenter stated that the protocol for citrus from Chile includes species of citrus that may be less hospitable to
APHIS notes that the protocol for mites from Chile also includes fruit that are better hosts than lemons. The sampling method for determining low prevalence works regardless of mite populations on the host fruit.
Two commenters stated that surveying for
As noted above,
One commenter stated that the
Currently Argentina is sampling for
One commenter stated that the
As we explained above,
One commenter stated that production sites should be inspected for
If mites were found in a consignment at a packinghouse, the originating production site would lose its free status. For this reason it is not necessary to inspect production sites throughout the harvest season.
One commenter stated that the
Symptoms of citrus leprosis virus are easy to detect, and fruit with such symptoms will be detected during standard packinghouse culling and phytosanitary inspections.
One commenter stated that fallen fruit should be cut and inspected for Medfly.
This effectively calls for place of production freedom for Medfly. APHIS notes that in the RMD, fallen fruit are specifically forbidden from being included in harvested fruit going to the packinghouse for fresh market. For this reason, we do not consider it necessary to sample fallen fruit for fruit flies or any other pest.
One commenter stated that trapping requirements for Medfly need to be delineated in the rule itself.
Historically, we have put trapping requirements in operational workplans, rather than rules, to allow flexibility in trapping protocols in order to respond to variations in population densities from season to season, as well as the development of new lure and bait technologies.
One commenter stated that trapping should be at least 50 percent with trimedlure and the other 50 percent should be baited with either 3-component or protein bait.
APHIS notes that both the 3-component bait and the protein bait are far less powerful lures for fruit flies than trimedlure, a pheromone. The trimedlure will draw flies in from farther away and is a more sensitive detection system. Trimedlure will also attract males and unmated females, which will make up a significant portion of any fruit fly population. The only thing that the protein or 3-component baits will attract is mated females, and if they are present then males and unmated females should also be present and will have already been detected by the more powerful trimedlure.
One commenter asked for greater detail about the requirements for packinghouses. The commenter specifically asked whether an entire facility would be included as a packinghouse, how many facilities would pack lemons for the U.S. market and what volume could a dedicated packinghouse expect to process.
A packinghouse has to be an entire facility. APHIS is aware of a few packinghouses that would serve as primary packinghouses; however, all packinghouses would be registered with the NPPO. Both the NPPO and APHIS will monitor packinghouses during routine inspections.
One commenter asked how large a consignment of lemons could be, and if there will be a limit on the size of consignments.
Consignments can vary in size. However, regardless of the size of the consignment, the sampling protocol is aimed at detecting a 3 percent infestation rate with at least 95 percent confidence.
One commenter asked how a biometric sample was defined.
The term `biometric sampling' simply means that the sample size that is smaller than a straight 2 percent sample can be used to detect pests on large consignments of the commodity. Taking a biometric sample is more efficient than taking a straight percentage sample.
One commenter stated that the number of samples inspected should be 600. The commenter stated that this is consistent with what other countries require from U.S. growers.
APHIS disagrees that the number of samples inspected should be 600. One hundred samples is consistent with the Chilean protocol, which has been effective at precluding infested fruit from being shipped. Inspecting an additional 500 fruit per sample does not substantially impact the probability of finding an infestation, and would be significantly more resource-intensive.
One commenter asked if the same method will be used to inspect for
Yes, the same method will be used for both production sites and packinghouses.
One commenter asked about the efficacy data for post-harvest inspections.
Post-harvest inspections by the NPPO of an exporting country are a long-standing phytosanitary measure that APHIS employs as part of market access requirements. The safe importation of thousands of foreign commodities into the United States over a prolonged period of time is an indication of its efficacy as a phytosanitary measure.
One commenter stated that fruit that is infested with Medfly larvae should be prohibited from being shipped.
APHIS disagrees. In the event that a single immature Medfly is found in or with the lemons, then the lemons must be treated in accordance with part 305 of the regulations and the operational workplan using a cold treatment. This cold treatment has been shown to be effective at mitigating the risk of Medfly in lemons. Additionally, the registered place of production that produced the lemons in the consignment may be suspended from the export program, pending an investigation.
One commenter stated that remedial actions should be identical, regardless of quarantine pest detected.
The remedial action when quarantine pests are detected is that the fruit cannot be exported. Some findings of quarantine pests also disqualify production sites because the mitigation requires the production site to be a pest-free place of production.
One commenter noted that the rule referred to CBP inspectors, but the supporting documents refer to APHIS inspectors. The commenter asked for clarification as to who will conduct port of entry inspections.
CBP conducts inspections at ports of entries pursuant to authority delegated to APHIS. The use of CBP employees to carry out functions specifically delegated to APHIS is authorized by the Homeland Security Act of 2002. Because CBP is effectively acting as agents of APHIS for the purposes of these inspections, we use the term “APHIS.” These inspections sample imported commodities for evidence of pests. If pests are detected, APHIS identifiers will be used to positively identify the pests.
One commenter asked whether port of entry inspections would include biometric sampling for
One commenter asked why, if information from port of entry inspections is “unreliable,” they can be stated to be effective.
“Not be detected at the port of entry” was removed as a criterion in the PRA because we do not have enough information about relative likelihood of detection at the port of entry to be able to weight this criterion relative to other elements. As a result, this criterion could not substantially impact the risk ratings. This does not imply that port of entry inspections are an ineffective component of a systems approach.
One commenter stated that the rule should specify how APHIS will monitor and enforce the systems approach. The commenter expressed concern that APHIS would have to commit substantial resources to ensure compliance with the operational workplan.
This request is predicated on the stated assumptions that SENASA lacks the ability and intent to abide by systems approach requirements. For reasons discussed above, we disagree with those assumptions.
One commenter stated that APHIS should require cold treatment of lemons from northwest Argentina.
This approach would not impose the least restrictive science-based actions needed to address plant pest risk, and thus would be inconsistent with our obligations under the SPS agreement.
One commenter stated that the rule should prohibit the importation of lemons from northwest Argentina into Florida. The commenter also stated that the rule should limit importation of lemons to areas north of the 38th parallel.
We have determined, for the reasons described in the RMD that accompanied the proposed rule, that the measures specified in the RMD will effectively mitigate the risk associated with the importation of lemons from northwest Argentina. The commenter did not provide any evidence suggesting that the mitigations are not effective. Therefore, we are not taking the action requested by the commenter.
Two commenters expressed concern that Argentine producers may use pesticides or practices that are not authorized in the United States.
We note that the Food and Drug Administration (FDA) of the Department of Health and Human Services regulates the pesticide, herbicide, and fertilizer residues that may be present on imported fruits and vegetables intended for human consumption. If illegal pesticides are detected, FDA will take action to remove them from the marketplace. Additionally, we note that the packinghouse disinfectants and treatments for pathogens that we are proposing for Argentina are the same used domestically.
One commenter stated that importing lemons from Argentina will involve carbon dioxide emissions that should be available to the consumer as they purchase the lemons. The commenter stated that the lemons should be labeled with the pounds of carbon dioxide emitted per pound of lemons.
This request is outside the scope of APHIS' statutory authority.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with minor editorial changes.
This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the
This analysis examines potential economic impacts of a rule that will allow the importation of fresh lemons from a region in Northwest Argentina into the continental United States. A systems approach to pest risk mitigation will provide phytosanitary protection against pests of quarantine concern. Both U.S. producers and consumers will be affected by the rule. While producers' welfare will be negatively affected, welfare gains for consumers will outweigh producer losses, resulting in a net benefit to the U.S. economy.
Commercial lemon production takes place in California and Arizona. For the 2014/15 season, lemon-bearing acres totaled 55,300 (California 47,000, Arizona 8,300). In the same season, the value of U.S. production of lemons was $694 million. Over the production seasons 2008/09 to 2014/15, U.S. fresh lemon production averaged 535,244 metric tons (MT) per year. Over the same period, annual imports averaged 49,995 MT and exports averaged 101,849 MT. Because lemons imported from Argentina that are harvested green between April 1 and August 31 will not require treatment for Medfly, we expect that most will be imported during this period, which coincides roughly with the months in which U.S. lemon exports are declining and imports are increasing.
Effects of the rule are estimated using a partial equilibrium model of the U.S. lemon sector. Annual imports of fresh lemon from Argentina are expected to range between 15,000 and 20,000 MT, with volumes averaging 18,000 MT. Quantity, price and welfare changes are estimated for these three import scenarios.
If the United States imports 18,000 MT of fresh lemon from Argentina and there is no displacement of lemon imports from other countries, we estimate that the price (custom import value) of fresh lemon will decrease by about 4 percent. Consumer welfare gains of $22.4 million will outweigh producer welfare losses of $19.9 million, resulting in a net welfare gain of $2.5 million. The 15,000 MT and 20,000 MT scenarios show similar effects.
More reasonably, partial import displacement will occur, and price and welfare effects will be proportional to the net increase in U.S. lemon imports. Assuming as an upper-bound that one-half of the quantity of fresh lemons imported from Argentina displaces U.S. fresh lemon imports from elsewhere, we estimate for the 18,000 MT scenario that the price decline will be about 2 percent; consumer welfare gains and producer welfare losses will be $11.1 million and $10.0 million, respectively, yielding a net welfare benefit of $1.1 million.
The majority of businesses that may be affected by the final rule are small entities, including lemon producers, packers, wholesalers, and related establishments.
This final rule allows lemons to be imported into the continental United States from Argentina. State and local laws and regulations regarding lemons imported under this rule will be preempted while the fruit is in foreign commerce. Fresh lemons are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, we are amending 7 CFR part 319 as follows:
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
The addition reads as follows:
(e) The prohibition does not apply to lemons (
Fresh lemons (
(2) Places of production must remove plant litter and fallen debris from groves in accordance with the operational workplan. Fallen fruit may not be included in field containers of fruit brought to the packinghouse to be packed for export.
(3) Places of production must trap for
(4) Places of production must carry out any additional grove sanitation and phytosanitary measures specified for the place of production by the operational workplan.
(5) The NPPO of Argentina must visit and inspect registered places of production regularly throughout the exporting season for signs of infestations. These inspections must start no more than 30 days before harvest and continue until the end of the export season. The NPPO of Argentina must allow APHIS to monitor these inspections. The NPPO of Argentina must also provide records of pest detections and pest detection practices to APHIS. Before any place of production may export lemons to the continental United States pursuant to this section, APHIS must review and approve of these practices.
(6) If APHIS or the NPPO of Argentina determines that a registered place of production has failed to follow the requirements in this paragraph (b), the place of production will be excluded from the export program until APHIS and the NPPO of Argentina jointly agree that the place of production has taken appropriate remedial measures to address the plant pest risk.
(2) Lemons destined for export to the continental United States must be packed within 24 hours of harvest in a registered pest-exclusionary packinghouse or stored in a degreening chamber in the registered pest-exclusionary packinghouse. Lemons must be packed for shipment to the continental United States in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin. These safeguards must remain intact until the lemons arrive in the United States, or the consignment will not be allowed to enter the United States.
(3) Prior to packing, the lemons must be washed, brushed, and surface disinfected for
(4) After treatment, the NPPO of Argentina or officials authorized by the NPPO of Argentina must visually inspect a biometric sample of each consignment for quarantine pests, wash
(i) If a single
(ii) If a single
(iii) If a single immature Medfly is found in or with the lemons, the lemons must be treated in accordance with part 305 of this chapter and the operational workplan. Additionally, the registered place of production that produced the lemons in the consignment may be suspended from the export program, pending an investigation.
(5) If APHIS or the NPPO of Argentina determines that a registered packinghouse has failed to follow the requirements in this paragraph (c), the packinghouse will be excluded from the export program until APHIS and the NPPO of Argentina jointly agree that the packinghouse has taken appropriate remedial measures to address the plant pest risk.
Office of Inspector General, USDA.
The U.S. Department of Agriculture (USDA), Office of Inspector General (OIG) amends its regulation relating to the availability of its information to the public. The amendments are necessary to update its regulation in order to reflect reorganizations within OIG.
Effective December 23, 2016.
Christy Slamowitz, Counsel to the Inspector General, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 441-E, Washington, DC 20250-2308, Telephone: (202) 720-9110.
The regulations regarding USDA OIG's processing of requests for information under the Freedom of Information Act (FOIA), 5 U.S.C. 552, were last published in 1995 (60 FR 52842). Since that time, OIG has had several internal reorganizations. As part of those reorganizations, OIG's FOIA program was transferred from OIG's defunct Office of Policy Development and Resources Management to OIG's Office of Counsel. In order to provide the public with current information regarding which OIG office processes FOIA requests, OIG is amending these regulations, which supplement USDA's FOIA regulations at subpart A of part 1 of this title, including the appendix.
This rule relates to agency organization and internal agency management. Pursuant to 5 U.S.C. 553(A), such rules are not subject to the requirement to provide public notice of proposed rulemaking and opportunity for public comment. Therefore, notice and comment before the effective date are being waived.
OIG has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Orders 12866 and 13563. OIG has determined that this rule is non-significant within the meaning of Executive Order 12866. Therefore, this rule is not required to be and has not been reviewed by the Office of Management and Budget (OMB).
These regulations will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis as provided by the Regulatory Flexibility Act, as amended, is not required.
This rule relates to internal agency organization and management. Therefore, it is exempt from the provisions of Executive Order 12291.
These proposed regulations impose no additional reporting and recordkeeping requirements. Therefore, clearance by OMB is not required.
This rule does not have Federalism implications, as set forth in Executive Order 13132. 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.
OIG has determined that this rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804.
Freedom of information.
5 U.S.C. 301, 552; Inspector General Act of 1978, as amended, 5 U.S.C. app. 3.
This part supplements the regulations of the Secretary of Agriculture implementing the Freedom of Information Act, 5 U.S.C. 552 (FOIA) (subpart A of part 1 of this title, including the appendix), and governs the availability of records of the Office of Inspector General (OIG) to the public upon request.
The FOIA requires that certain materials be made available for public inspection in an electronic format. OIG records are available for public inspection on OIG's public Web site,
Requests for OIG records shall be submitted to OIG's Office of Counsel and will be processed in accordance with subpart A of part 1 of this title. Specific guidance on how to submit requests (including current contact methods) is available through OIG's Web site,
If it is determined that a requested record is exempt from mandatory disclosure and that discretionary release would be improper, the Counsel to the Inspector General or the Counsel's designee shall give written notice of denial in accordance with subpart A of part 1 of this title.
The denial of a requested record may be appealed in accordance with subpart A of part 1 of this title. Appeals shall be addressed to the Inspector General, U.S. Department of Agriculture, 1400 Independence Avenue SW., Whitten Building, Suite 441-E, Washington, DC 20250-2308. The Inspector General will give notice of the determination concerning an appeal in accordance with subpart A of part 1 of this title.
Department of Homeland Security.
The Department of Homeland Security (DHS) is removing outdated regulations relating to an obsolete special registration program for certain nonimmigrants. DHS ceased use of the National Security Entry-Exit Registration System (NSEERS) program in 2011 after finding that the program was redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security in light of DHS's evolving assessment of the threat posed to the United States by international terrorism. The regulatory structure pertaining to NSEERS no longer provides a discernable public benefit as the program has been rendered obsolete. Accordingly, DHS is removing the special registration program regulations.
This rule is effective December 23, 2016.
Mr. Kekoa Koehler, Office of Policy, U.S. Department of Homeland Security. Phone: 202-447-4125. Email:
In 1991, the legacy Immigration and Naturalization Service (INS), then part of the Department of Justice (DOJ), published a final rule requiring the registration and fingerprinting of certain nonimmigrants bearing Iraqi and Kuwaiti travel documents, due to various factors, including concerns about misuse of Kuwaiti passports.
In June 2002, after the September 11, 2001 terrorist attacks, INS proposed to expand the existing registration and fingerprinting program at 8 CFR 264.1(f) to require certain nonimmigrants to report to INS upon arrival, approximately 30 days after arrival, every 12 months after arrival, upon certain events such as a change of address, and at the time of departure from the United States.
The INS received 14 comments on the proposed rule, some in support of the proposed program and others opposed to it. In August 2002, INS finalized the proposed program, which became known as the National Security Entry-Exit Registration System (NSEERS), without substantial change.
In December 2003, DHS amended the NSEERS regulations by interim final rule to suspend the 30-day post-arrival
In 2011, DHS published a notice in the
In 2012, the DHS Office of the Inspector General (OIG) issued a report on border security information sharing within DHS that, among other things, recommended DHS fully eliminate NSEERS by removing the regulatory structure for the program.
Although DHS retained the regulations that provide the NSEERS framework, subsequent experience has confirmed that NSEERS is obsolete, that deploying it would be inefficient and divert personnel and resources from alternative effective measures, and that the regulation authorizing NSEERS is unnecessary. Since the suspension of NSEERS in 2011, DHS has not found any need to revive or consider the use of the program. Indeed, during this period, DHS's other targeting, data collection, and data management systems have become even more sophisticated. DHS now engages in security and law enforcement efforts that were not possible when NSEERS was established in 2002, and the Department continues to make significant progress in its abilities to identify, screen, and vet all travelers arriving to the United States; to collect and analyze biometric and biographic data; to target high-risk travelers for additional examination; and to track nonimmigrants' entry, stay, and exit from the country.
The information that was previously captured through NSEERS is now generally captured from nonimmigrants through other, more comprehensive and efficient systems. Below we describe several of DHS's data collections, systems, and procedures relating to nonimmigrants and their relation to the NSEERS program.
Due to such changes, DHS has determined that the NSEERS model for border vetting and security, which focused on designated nationalities for special processing, is outmoded. Since the implementation of NSEERS in 2002, DHS has increasingly moved away from the NSEERS model and instead focused on a targeted, intelligence-driven border security model that identifies current and emerging threats in real time. For these reasons, DHS has concluded that NSEERS is obsolete and inefficient; that its implementation would be counterproductive to the Department's comprehensive security measures; and that the regulatory authority for NSEERS should thus be rescinded. For these reasons, DHS is removing the special registration program regulations found in 8 CFR 264.1(f).
DHS is making a conforming amendment to 8 CFR 214.1(f) to remove the specific reference to 8 CFR 264.1(f), which INS added when it implemented NSEERS in 2002. The amendment reinstates the text of 8 CFR 214.1(f) prior to the implementation of NSEERS, with a minor change to reflect the transfer of duties from INS to DHS.
The Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the
The APA also provides an exception from notice and comment procedures when an agency finds for good cause that those procedures are “impracticable, unnecessary, or contrary to the public interest.”
Further, the APA generally requires that substantive rules incorporate a 30-day delayed effective date.
This regulation has been drafted and reviewed in accordance with Executive Orders 12866 and 13563. This rule is not a significant regulatory action under Executive Order 12866, and accordingly this rule has not been reviewed by the Office of Management and Budget.
Because DHS is of the opinion that this rule is not subject to the notice and comment requirements of 5 U.S.C. 553, DHS does not consider this rule to be subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The Unfunded Mandates Reform Act of 1995 is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector.
This rule does not include any unfunded mandates. The requirements of Title II of the Act, therefore, do not apply, and DHS has not prepared a statement under the Act.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States companies to compete with foreign-based companies in domestic and export markets.
This rule would 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 section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Aliens, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, DHS amends chapter 1 of title 8 of the Code of Federal Regulations as set forth below.
6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.
8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of data availability (NODA).
In this NODA, the U.S. Department of Energy (DOE) presents its updated analysis used to convert the potential energy conservation standard levels the Department has considered for residential-duty commercial gas-fired storage water heaters from thermal efficiency and standby loss metrics to the uniform energy factor (UEF) metric, as required by a recent change in law. In a notice of proposed rulemaking (NOPR) for energy conservation standards for commercial water heating equipment published on May 30, 2016 (“May 2016 CWH ECS NOPR”), DOE analyzed these potential standard levels for residential-duty commercial gas-fired storage waters in terms of thermal efficiency and standby loss, and converted the levels to UEF using conversion factors that were proposed in a separate NOPR published on April 15, 2015 (“April 2015 conversion factor NOPR”). However, DOE subsequently published a supplemental NOPR (“August 2016 conversion factor SNOPR”) in the conversion factor rulemaking in response to new data on August 30, 2016, and recently issued a conversion factor final rule (“December
DOE will accept comments, data, and information regarding this notice of data availability (NODA) no later than January 9, 2017.
Instructions: Any comments submitted must identify the NODA for commercial water heating equipment, and provide docket number EERE-2014-BT-STD-0042 and/or regulatory information number (RIN) number 1904-AD34. Comments may be submitted using any of the following methods:
For further information on how to submit a comment, review other public comments and the docket, contact the Appliance and Equipment Standards Program staff at (202) 586-6636 or by email:
A link to the docket Web page can be found at
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email:
Ms. Jennifer Tiedeman, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6111. Email:
Title III Part C
Under EPCA, DOE's energy conservation program generally consists of four parts: (1) Testing; (2) labeling; (3) energy conservation standards; and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products and equipment must use as the basis for certifying to DOE that their products and equipment comply with the applicable energy conservation standards adopted under EPCA, and for making other representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether such products and certain equipment comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6314) The initial Federal energy conservation standards and test procedures for commercial storage water heaters, instantaneous water heaters, and unfired hot water storage tanks (collectively referred to as “commercial water heating equipment” or “CWH equipment”) were added to EPCA by the Energy Policy Act of 1992 (EPACT 1992), Public Law 102-486. (42 U.S.C. 6313(a)(5) and 42 U.S.C. 6314(a)(4)(A)) These initial CWH equipment standards corresponded to the efficiency levels and equipment classes contained in the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 90.1-1989, in effect on October 24, 1992. The statute provided that if the efficiency levels in ASHRAE Standard 90.1 were amended after October 24, 1992, the Secretary of Energy (Secretary) must establish an amended uniform national standard at new minimum levels for each equipment type specified in ASHRAE Standard 90.1, unless DOE determines, through a rulemaking supported by clear and convincing evidence, that national standards more stringent than the new minimum levels would result in significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(I)-(II)) The statute was subsequently amended to require DOE to review its standards for commercial water heating equipment (and other “ASHRAE equipment”) every six years. (42 U.S.C. 6313(a)(6)(C)) On January 12, 2001, DOE published a final rule for commercial water heating equipment that amended energy conservation standards by adopting the levels in ASHRAE Standard 90.1-1999 for all types of commercial water heating equipment, except for electric storage water heaters.
On December 18, 2012, the American Energy Manufacturing Technical
Pursuant to 42 U.S.C. 6295(e)(5)(E)(ii) and (iii), the conversion factor must not affect the minimum efficiency requirements for covered water heaters, including residential-duty commercial water heaters. Furthermore, such conversions must not lead to a change in measured energy efficiency for covered residential and residential-duty commercial water heaters manufactured and tested prior to the final rule establishing the uniform efficiency descriptor.
DOE initially presented proposals for establishing mathematical conversion factors for residential-duty commercial water heaters in a NOPR published on April 14, 2015 (“April 2015 conversion factor NOPR”) to be used to convert thermal efficiency and standby loss represented values to UEF represented values for residential-duty commercial water heaters. 80 FR 20116, 20143. DOE also proposed amendments to the minimum energy conservation standards for consumer water heaters and residential-duty commercial water heaters to translate the existing standards to the UEF metric without altering the stringency of the existing energy conservation standards.
Upon further analysis and review of the public comments received in response to the April 2015 conversion factor NOPR, DOE published a supplemental notice of proposed rulemaking on August 30, 2016 (“August 2016 conversion factor SNOPR”). In the SNOPR, DOE proposed revised mathematical conversion factors, as well as updates to the energy conservation standards for residential-duty commercial water heaters denominated in UEF. 81 FR 59736, 59793-59794, 59798. On December 6, 2016, DOE issued a final rule (“December 6, 2016 conversion factor final rule”) that adopted the mathematical conversion factors used to convert thermal efficiency and standby loss to UEF for residential-duty commercial water heaters that were proposed in the August 2016 conversion factor SNOPR. DOE also adopted the energy conservation standards for residential-duty commercial water heaters that were proposed in the August 2016 conversion factor SNOPR and that translate the existing thermal efficiency and standby loss standards to UEF standards. (
The purpose of this NODA is to present the thermal efficiency and standby loss levels that were considered for residential-duty gas-fired commercial water heaters in the May 2016 CWH ECS NOPR in terms of UEF using the recently updated conversion factors adopted in the December 6, 2016 conversion factor final rule. In response to the May 2016 CWH ECS NOPR, DOE received feedback on the efficiency levels analyzed and the efficiency levels included in each TSL for residential-duty commercial gas-fired storage water heaters. DOE is considering this feedback, and will address the comments received in detail, along with any resulting changes to the analysis and relevant conclusions, in the forthcoming final rule. The NODA, however, does not reflect any change in the efficiency levels or TSLs considered in the May 2016 CWH ECS NOPR.
The December 6, 2016 conversion factor final rule adopted conversion factors for residential-duty commercial water heaters for all four draw patterns: High, medium, low, and very small.
The thermal efficiency and standby loss levels analyzed in the May 2016 CWH ECS NOPR are shown in Table 2 (81 FR 34440, 34472 (May 31, 2016)), and the corresponding updated UEF levels are shown in Table 3. The standby loss and UEF levels correspond to the representative equipment capacities analyzed for residential-duty commercial gas-fired storage water heaters—75 gallon rated storage volume and 76,000 Btu/h rated input. In Table 3, the UEF values correspond to the high draw pattern—DOE believes most, if not all, residential-duty gas-fired storage water heater models will fall into the high draw pattern bin. In the May 2016 CWH ECS NOPR, DOE selected standby loss levels in Btu/h, and translated these values to modified standby loss standard equations using standby loss reduction factors. As proposed in the May 2016 CWH ECS NOPR and presented in this NODA, the standby loss reduction factor is a factor that is multiplied by the current standby loss equation. Because the standby loss reduction factor is a multiplicative factor that is applied to the existing standby loss equation (in lieu of independently changing the coefficients for the volume and input terms of the equation), the standby loss reduction factor preserves the dependence of the existing standby loss equation on rated input and storage volume. 81 FR 34440, 34476 (May 31, 2016).
The energy conservation standards for residential-duty commercial water heaters adopted in the December 6, 2016 conversion factor final rule (
DOE developed UEF standard equations corresponding to each combination of thermal efficiency and standby loss levels that DOE selected in the TSLs analyzed in the May 2016 CWH ECS NOPR. DOE converted the thermal efficiency level and standby loss value to UEF for each identified rated volume on the market and for each draw pattern using the conversion factors adopted in the December 6, 2016 conversion factor final rule. (
Table 4 shows the thermal efficiency and standby loss levels included in each TSL in the May 2016 CWH ECS NOPR for residential-duty commercial gas-fired storage water heaters. 81 FR 34440, 34504 (May 31, 2016). Table 5 shows the updated UEF standard equations, dependent on rated volume, that were developed for each TSL and draw pattern using the conversion factors adopted in the December 6, 2016 conversion factor final rule. (
DOE is interested in receiving comments on the conversion of the thermal efficiency and standby loss levels for residential-duty gas-fired storage water heaters that were considered in the May 2016 CWH ECS NOPR to UEF levels and UEF standard equations using the conversion factors adopted by DOE in its December 6, 2016 final rule.
Federal Election Commission.
The Commission is making technical corrections to various sections of its regulations. These are non-substantive amendments to correct typographical errors, update references, and remove provisions that no longer apply.
Effective December 23, 2016.
Mr. Eugene Lynch, Paralegal, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The existing rules that are the subject of these corrections are part of the continuing series of regulations that the Commission has promulgated to implement the Presidential Election Campaign Fund Act, 26 U.S.C. 9001-13, and the Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-42 (collectively, the “Funding Acts”), and the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“FECA”). The Commission is promulgating these corrections without advance notice or an opportunity for comment because they fall under the “good cause” exemption of the Administrative Procedure Act. 5 U.S.C. 553(b)(B). The
Moreover, because these corrections are exempt from the notice and comment procedure of the Administrative Procedure Act under 5 U.S.C. 553(b), the Commission is not required to conduct a regulatory flexibility analysis under 5 U.S.C. 603 or 604.
The Commission has renamed a division within the agency. As a result, throughout 11 CFR chapter I, the Commission is replacing every instance of the phrase “Public Disclosure Division” with the phrase “Public Disclosure and Media Relations Division.”
The Commission is correcting a typographical error in paragraph (b) of this section by adding a comma after the word “maintaining”. This comma was inadvertently omitted when the Commission promulgated this paragraph.
The Commission is correcting a typographical error in paragraph (b) of this section by adding a comma after the word “creating” and a comma after the word “maintaining”. These commas were inadvertently omitted when the Commission promulgated this paragraph.
The Commission is revising paragraphs (c)(2)(i) and (c)(2)(ii)(C) of this section to correctly note the reporting requirements for candidates and authorized committees receiving earmarked contributions from conduits and intermediaries. These paragraphs currently state that candidates and authorized committees are required to report a conduit or intermediary forwarding earmarked contributions which, in the aggregate, exceed $200 in “any calendar year.” In 1999, however, Congress amended FECA to require that authorized committees aggregate and report all receipts and disbursements by election cycle, rather than by calendar year. Treasury and General Government Appropriations Act of 2000, Public Law 106-58, sec. 641, 113 Stat. 430, 477 (1999). In 2000, the Commission implemented this legislation by amending § 104.3(c) of its regulations, Election Cycle Reporting by Authorized Committees, 65 FR 42619-21 (July 11, 2000), but inadvertently failed to update paragraphs (c)(2)(i) and (c)(2)(ii)(C) of § 110.6 to conform to the statute and to revised § 104.3. To correct that oversight, the Commission is amending the relevant portions of the text in paragraphs (c)(2)(i) and (c)(2)(ii)(C).
The Commission is removing paragraph (f) of this section because it is no longer applicable. Paragraph (f) describes the “personal use” rules, which concern the permissible non-campaign uses of campaign funds, that applied to Members of Congress serving in the 102d or an earlier Congress. Because this paragraph does not apply to any Members serving in the 103d or a later Congress, which includes all current and future Members of Congress, the Commission is removing paragraph (f).
The Commission is removing and reserving this section because it contains transitional rules that no longer apply. When the Commission enacted rules concerning the use of non-federal funds in 2002, the Commission also promulgated § 300.12, which outlined how and by what date national committees of political parties were to disburse non-federal funds received before November 6, 2002. Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49091-92 (July 29, 2002);
For the reasons discussed above regarding the removal of § 300.12, the Commission is also removing paragraphs (b) and (c) of § 300.13. Paragraph (b) directs national party committees to file termination reports disclosing the disposition of funds in non-federal accounts and building fund accounts by January 31, 2003. Paragraph (c) refers to reporting requirements for receipts and disbursements from national party committee non-federal accounts and building fund accounts for activity occurring between November 6 and December 31, 2002.
Freedom of information.
Archives and records.
Campaign funds, Political committees and parties.
Administrative practice and procedure, Elections.
Campaign funds, Political candidates.
Campaign funds, Nonprofit organizations, Political committees and parties, Political candidates.
For the reasons set out in the preamble, the Federal Election Commission amends 11 CFR chapter I as follows:
5 U.S.C. 552, as amended.
52 U.S.C. 30108(d), 30109(a)(4)(B)(ii), 30111(a); 31 U.S.C. 9701.
52 U.S.C. 30101, 30104, 30111(a)(8), and 30114(c).
52 U.S.C. 30101(8), 30101(9), 30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123, 30124, and 36 U.S.C. 510.
52 U.S.C. 30108, 30111(a)(8).
52 U.S.C. 30102(h), 30111(a)(8), 30114, and 30116.
52 U.S.C. 30104(e), 30111(a)(8), 30116(a), 30125, and 30143.
On behalf of the Commission.
Office of the Comptroller of the Currency
Interim final rule.
The Office of the Comptroller of the Currency (OCC) is amending its regulations governing the disclosure of information pursuant to requests made under the Freedom of Information Act (FOIA) to reflect changes to the FOIA made by the FOIA Improvement Act of 2016 and the OPEN FOIA Act of 2009 and to make other technical changes that update the OCC's FOIA regulations.
The interim final rule is effective on December 23, 2016. Comments on the rule must be received by February 21, 2017.
You may submit comments to the OCC by any of the methods set forth below. Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments through the Federal eRulemaking Portal or email, if possible. Please use the title “Availability of Information Under the Freedom of Information Act” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:
• Click on the “Help” tab on the
You may review comments and other related materials that pertain to this rulemaking action by any of the following methods:
• Click on the “Help” tab on the
For additional information, contact Melissa Lisenbee, Attorney, Legislative and Regulatory Activities Division, (202) 649-5490, or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597.
The Freedom of Information Act (FOIA) sets forth the process for obtaining federal agency records, unless the records (or any portion thereof) are protected from disclosure by one of the FOIA's nine exemptions or by one of its three special law enforcement record exclusions.
Additionally, under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA),
Finally, the OPEN FOIA Act of 2009 (the OPEN FOIA Act),
Twelve CFR part 4, subpart B, sets forth OCC policies regarding the availability of information under the FOIA and establishes procedures for requesters to follow when seeking information. This interim final rule amends 12 CFR part 4, subpart B, to implement the FOIA Improvement Act and the OPEN FOIA Act and to make technical changes to the regulations as a result of the OCC's EGRPRA review.
As part of the EGRPRA proposed rule, the OCC proposed to remove § 4.11(b)(4), which stated that the OCC's FOIA rules did not apply to FOIA requests filed with the former Office of Thrift Supervision (OTS) before July 21, 2011, because the OTS's rules would apply to those requests instead. The OCC adopted this provision when it amended part 4 to reflect the transfer of certain powers, authorities, rights, and duties of the OTS to the OCC pursuant to Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
Pursuant to the Act, the interim final rule amends 12 CFR 4.12 to revise the language about the availability of records in subsection (a), consistent with the FOIA Improvement Act; limit the deliberative process exemption; expand the information segregation provisions; update 12 CFR 4.12(b)(3) to be consistent with the OPEN FOIA Act; and implement proposed clarifications from the EGRPRA review.
Section 4.12(a) currently provides that OCC records are available to the public except for records that the FOIA exempts from disclosure. The FOIA Improvement Act adds new language to the statute that relates to an agency's decision to disclose information that is covered by an exemption. This language provides for the withholding of information pursuant to a FOIA exemption only if an agency “reasonably foresees that disclosure would harm an interest protected by an exemption” or if the disclosure is prohibited by law.
These considerations will inform the OCC's future determinations about whether to disclose information covered by an exemption. Accordingly, the interim final rule removes the existing reference to “exempt records” in subsection (a) and replaces it with the phrase “[e]xcept as otherwise provided by the FOIA.” This language is broad enough to encompass the “reasonable foreseeability” and the “prohibited by law” language added by the FOIA Improvement Act, and it encompasses the former reference to coverage by an exemption as well. Based on legislative history, in which the sponsors of the Act expressed their intent to preserve the longstanding protections afforded by Exemption 8,
Extreme care should be taken with respect to disclosure under Exemption 8 which protects matters that are `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.' Currently, financial regulators rely on Exemption 8, and other relevant
Exemption 8 was intended by Congress, and has been interpreted by the courts, to be very broadly construed to ensure the security of financial institutions and to safeguard the relationship between the banks and their supervising agencies. The D.C. Circuit has gone so far as to state that in Exemption 8 Congress has provided “absolute protection regardless of the circumstances underlying the regulatory agency's receipt or preparation of examination, operating or condition reports.” Nothing in this legislation shall be interpreted to compromise the stability of any financial institution or the financial system, disrupt the operation of financial markets or undermine consumer protection efforts due to the release of confidential information about individuals or information that a financial institution may have, or encourage the release of confidential information about individuals. This legislation is not intended to lessen the protection under Exemption 8 created by Congress and traditionally afforded by the courts.
S. Rep. No 114-4 (February 23, 2015).
The interim final rule also amends the deliberative process exemption in § 4.12(b)(5) to reflect the Act's limitations on records created 25 years or more before the date of an information request. Previously, the deliberative process exemption protected all intra-agency and interagency memoranda and letters not routinely available by law to a private party in litigation, including memoranda, reports, and other documents prepared by OCC employees and records of deliberations and discussions at meetings of OCC employees. After the change, the deliberative process provision as amended by the interim final rule will exempt only those memoranda and letters created within 25 years of the date on which they were requested.
Additionally, although the OCC's rules already provide for the separation and provision of nonexempt information, the interim final rule clarifies that, in cases in which full disclosure is not possible, the OCC considers whether partial disclosure of information is possible and takes reasonable steps necessary to segregate and release nonexempt information. This provision is consistent with current OCC practice.
The interim final rule also amends § 4.12(b)(3) to reflect the OPEN FOIA Act provision that requires that statutes enacted after the date of the enactment of the OPEN FOIA Act must specifically cite to Exemption 3 of the FOIA in order to qualify under Exemption 3. The OPEN FOIA Act was enacted on October 28, 2009, so the requirement applies to statutes enacted after that date.
Finally, the interim final rule adopts the changes to § 4.12(a) and (b) that the OCC proposed as part of its EGRPRA review. Previously, § 4.12(b)(10) exempted from disclosure any OTS information similar to that listed in the exemptions in § 4.12(b)(1) to (b)(9) to the extent the information is in the possession of the OCC. For purposes of clarification, we are amending the § 4.12(a) disclosure standard so that it applies to OTS records, in addition to OCC records, and removing the resulting unnecessary exemption in paragraph (b)(10).
Section 4.14(a) lists the types of information the OCC makes available for public inspection. Consistent with the Act's amendments to 5 U.S.C. 552(a)(2), the interim final rule adds two categories of information to § 4.14(a). New § 4.14(a)(11) specifies that the OCC will make available for public inspection in an electronic format any records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3) provided that: (1) The OCC determines that, because of the nature of their subject matter, the records are or are likely to become the subject of subsequent requests for substantially the same record; or (2) the records have been requested three or more times.
New § 4.14(a)(12) states that the OCC will provide reference materials or a guide for requesting records or information from the OCC, including an index of all major OCC information systems, a description of major information and record locator systems maintained by the OCC, and a handbook for obtaining various types and categories of public information from the OCC pursuant to FOIA and chapter 35 of title 44.
Finally, the interim final rule makes clarifying and conforming changes to § 4.14, including amending § 4.14(a) and (b) to specify that information will be made available for public inspection in an electronic format to implement section 2 of the Act.
Pursuant to the Act, the interim final rule amends § 4.15, which describes the process for requesting OCC records. Specifically, to implement section 2 of the Act, the interim final rule amends § 4.15(c)(4) to specify that if a request for information is denied, the OCC will notify the requester of the right to seek dispute resolution services from the OCC's FOIA Public Liaison or the Office of Government Information Services through the processes described in new § 4.15(h).
Pursuant to the Act's amendments to 5 U.S.C. 552(a)(6)(A)(i), the interim final rule also extends the time available for administrative appeal of a denial to release records from 35 days to 90 days. Under new § 4.15(d), requesters will have 90 days after the date of an initial denial determination to submit a written administrative appeal of denial of a request for records.
Additionally, the interim final rule expands § 4.15(f), which addresses the time limits for FOIA request responses and provides for extensions in certain situations, including a 10-day extension for unusual circumstances.
Finally, the interim final rule makes other clarifying and conforming changes to § 4.15, including amending § 4.15(d)(4) to specify that the OCC will provide notification of a denial of an appeal “in writing,” rather than “by mail.” The OCC expects this change will provide greater flexibility and efficiency
Section 4.17 provides information for the assessment and payment of FOIA request fees. As stated in § 4.17(b)(1), the OCC generally charges fees to fulfill FOIA requests. However, § 4.17(b)(6) provided that the OCC will not assess search or duplication fees, as applicable, if the OCC did not respond within the time limits set forth in § 4.15(f) and no unusual or exceptional circumstances applied. The FOIA Improvement Act provided additional information about the circumstances in which an agency may charge search or duplication fees if the agency does not meet the time limits provided by the FOIA. Thus, pursuant to the Act, the interim final rule amends § 4.17(b)(6) to update the circumstances in which the OCC is permitted to assess search or duplication fees, even if the OCC does not respond within the § 4.15(f) time limits.
For example, amended § 4.17(b)(6) permits the OCC to assess search or duplication fees if the OCC has determined “unusual circumstances” (as defined in § 4.15(f)(3)(i)) apply, has provided timely written notice to the requester, and complies with the extended time limit.
The interim final rule also updates the payment of fees contact information listed in § 4.17(c).
The interim final rule makes a technical amendment to § 4.18(b) to provide updated contact information for the OCC's Communications Division that requesters may use to track the progress of their requests.
The OCC is issuing the interim final rule without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA).
In addition, the OCC believes that providing a notice and comment period prior to issuance of the interim final rule is unnecessary because the OCC does not expect public objection to the regulations being promulgated, as this rule implements the substantive changes specified in the Act and technical, non-substantive updates and clarifications to part 4. Moreover, the OCC expects that the majority of the changes will provide additional services and critical updates that will assist FOIA requesters.
The APA also requires a 30-day delayed effective date, except for (1) substantive rules that grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),
While the OCC believes there is good cause to issue the rule without notice and comment and with an immediate effective date, the OCC is interested in the views of the public and requests comment on all aspects of the interim final rule.
The Regulatory Flexibility Act (RFA)
The Paperwork Reduction Act of 1995
Consistent with section 202 of the Unfunded Mandates Reform Act of 1995,
Administrative practice and procedure, Freedom of information, Individuals with disabilities, Minority businesses, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Women.
For the reasons set forth in the preamble, the OCC hereby amends 12 CFR part 4 as set forth below.
5 U.S.C. 301, 552; 12 U.S.C. 1, 93a, 161, 481, 482, 484(a), 1442, 1462a, 1463, 1464, 1817(a), 1818, 1820, 1821, 1831m, 1831p-1, 1831o, 1833e, 1867, 1951
The revisions read as set forth below.
(3) A record specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that the statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; establishes particular criteria for withholding, or refers to particular types of matters to be withheld; and, if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3);
(5) An intra-agency or interagency memorandum or letter not routinely available by law to a private party in litigation, including memoranda, reports, and other documents prepared by OCC employees, and records of deliberations and discussions at meetings of OCC employees, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
(d) * * * If the OCC determines that full disclosure of a requested record is not possible, the OCC considers whether partial disclosure of information is possible and takes reasonable steps necessary to segregate and release nonexempt information. * * *
The revisions read as set forth below.
(1) Any final order, agreement, or other enforceable document issued in the adjudication of an OCC enforcement case, including a final order published pursuant to 12 U.S.C. 1818(u);
(2) Any final opinion issued in the adjudication of an OCC enforcement case;
(3) Any statement of general policy or interpretation of general applicability not published in the
(4) Any administrative staff manual or instruction to staff that may affect a member of the public as such;
(5) A current index identifying the information referred to in paragraphs (a)(1) through (a)(4) of this section issued, adopted, or promulgated after July 4, 1967;
(6) A list of available OCC publications;
(7) A list of forms available from the OCC, and specific forms and instructions;
(8) Any public Community Reinvestment Act performance evaluation;
(9) Any public securities-related filing required under parts 11, 16, 194 or 197 of this chapter;
(10) Any public comment letter regarding a proposed rule;
(11) Any records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3) provided that:
(i) The OCC determines that, because of the nature of their subject matter, the
(ii) The records have been requested three or more times;
(12) Reference materials or a guide for requesting records or information from the OCC, including an index of all major OCC information systems, a description of major information and record locator systems maintained by the OCC, and a handbook for obtaining various types and categories of public information from the OCC pursuant to FOIA and chapter 35 of title 44;
(13) The public file (as defined in 12 CFR 5.9) with respect to a pending application described in part 5 of this chapter; and
(14) Any OTS information similar to that listed in paragraphs (a)(1) through (a)(13) of this section, to the extent this information is in the possession of the OCC.
The additions and revisions read as set forth below.
(b) * * * (1)
(i) Through the OCC's FOIA Web portal at
(ii) Through the consolidated online request portal maintained by the Office of Management and Budget pursuant to 5 U.S.C. 552(m)(1); or
(iii) Under this section to the Chief FOIA Officer, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
(c) * * *
(f) * * *
(i) Notify the requester that the request cannot be processed within the time limit set forth in paragraph (f)(3)(i) of this section;
(ii) Provide the requester with an opportunity to limit the scope of the request so that it may be processed within that 10-day period or to arrange with the OCC an alternative time frame for processing the request or a modified request;
(iii) Make available the FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the OCC; and
(iv) Notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services.
(1) To apply for dispute resolution assistance from the FOIA Public Liaison, requesters should submit a written request to the FOIA Public Liaison, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
(2) For dispute resolution services through the Office of Government Services, requesters should contact the Office of Government Services as set forth at 36 CFR 1250.32.
The revisions read as set forth below.
(b) * * *
U.S. Small Business Administration.
The U.S. Small Business Administration (SBA) is amending its regulations to implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014 (NDAA 2014). Section 1614 amended the Small Business Act to provide that where a prime contractor has an individual subcontracting plan for a specific prime contract with an executive agency, the prime contractor shall receive credit towards its subcontracting plan goals for awards made to small business concerns at any tier under the contract. The changes authorized by this statute will allow an other than small prime contractor that has an individual subcontracting plan for a contract to receive credit towards its small business subcontracting goals for subcontract awards made to small business concerns at any tier, to the extent reported on the subcontracting plans of its lower tier subcontractors. The final rule also implements the statutory requirements related to the subcontracting plans of all subcontractors that are required to maintain such plans, including the requirement to monitor subcontractors' performance and compliance toward reaching the goals set out in those plans as well as their compliance with subcontracting reporting requirements. SBA is also clarifying that the size standard for a particular subcontract must appear in the solicitation for the subcontract.
This rule is effective on January 23, 2017.
Michael McLaughlin, Office of Policy, Planning and Liaison, 409 Third Street SW., Washington, DC 20416; (202) 205-5353;
The final rule implements Section 1614 of the National Defense Authorization Act for Fiscal Year 2014, Public Law 113-66, December 26, 2013 (hereinafter NDAA 2014). Section 1614 amended section 8(d)(6)(D) of the Small Business Act, 15 U.S.C. 637(d)(6)(d), to provide that where a prime contractor has a subcontracting plan for a specific prime contract with an executive agency, as required by Section 8(d) of the Small Business Act, the prime contractor will receive credit towards its subcontracting plan goals for awards made to small business concerns at any tier under the contract, to the extent reported under the subcontracting plan of a lower tier other than small subcontractor. When a prime contractor awards a subcontract to a firm, it is generally considered a first tier subcontract. That subcontractor may award a subcontract, which would be considered a second tier subcontract, and so on. Currently, with few exceptions, a prime contractor cannot receive credit towards its small business subcontracting plan goals for awards made below the first tier.
SBA is amending its regulations to require other than small business prime contractors to count lower tier small business subcontract awards towards their federal small business subcontracting goals on unrestricted federal contracts, to the extent the lower tier subcontractor are required to report the information. With limited exceptions, unrestricted federal procurements and subcontracts over $700,000 ($1.5 million for construction of any public facility) include Federal Acquisition Regulation (FAR) clause 52.219-9 (Small Business Subcontracting Plan), which requires other than small contractors and their lower tier subcontractors to make a good faith effort to meet or to exceed the small business subcontracting goals established in their respective subcontracting plans. Failure to make this effort could result in liquidated damages, default termination, and negative performance reviews. For a subcontracting plan for a specific prime contract, the contractor or subcontractor is required to submit an Individual Subcontract Report (ISR) and Summary Subcontracting Report (SSR). The ISR is submitted semiannually during contract performance and upon contract completion. The SSR is submitted annually to procuring agencies. Both forms are submitted through the Electronic Subcontracting Reporting System (eSRS). Until this final rule, a large prime contractor could not take credit for a subcontract award to a second-tier small business subcontractor. Lastly, large prime contractors are already required to identify the size standard that applies to a subcontract. 13 CFR 121.410, 121.411, 125.3(c)(1)(v). Subcontractor size representation is reviewed during compliance reviews (See 13 CFR 125.3(f)(2)(i)) and size representations at
SBA published a proposed rule regarding these changes in the
Two commenters did not think that SBA's regulatory impact analysis took into consideration the extra burden that large businesses would have under these changes. The commenters claimed that the costs and challenges of collecting the data are more than minimal, and that large businesses will incur more than minimal costs. Neither commenter provided data or analysis on what those costs would be, just a general statement that they would be more than minimal. SBA addressed this issue in its proposed rule. Any costs associated with the regulatory implementation of these provisions of the NDAA 2014 will be included in the proposed Federal Acquisition Regulation (FAR) changes. Thus, any Paperwork Reduction Act (PRA) costs associated with proposed rulemaking and implementation will occur during the FAR rulemaking process.
SBA received one comment seeking clarification that this rule and credit for lower tier subcontracting does not affect Agencies' prime contract goaling numbers. This rule only applies to subcontracting plans, not to agency prime contract goaling requirements. Generally, agencies do not count subcontracting dollars awarded to small business concerns towards their prime contract goaling requirements, except for the Department of Energy. This rule does not change reporting under the SSR, which is how agencies receive credit for subcontracting. Firms will continue to report only their first-tier subcontracts on the SSR.
SBA received one comment regarding enforcement of these regulations prior to FAR regulatory implementation and updates to eSRS. As noted in the proposed rule, it is SBA's position that this regulation will require changes to FAR prior to full implementation in eSRS.
SBA proposed amending § 121.411(b) allowing prime contractors to accept a subcontractor's size certification electronically. The list of enumerated methods is illustrative only, and is not exhaustive. SBA received several comments on this issue, and all believed the proposed change was positive, but that more clarity was needed about who may accept the certifications, and whether this applied to socioeconomic certifications. Thus, SBA is adopting the language as proposed, with minor additions for clarity. The final rule now makes clear that prime and subcontractors may rely on any form of electronic certification that they deem appropriate provided it is given in connection with an offer for specific subcontract and it includes the language in SBA's regulation which provides that in order to accept an electronic representation, the representation must be in connection with an offer for a subcontract and the solicitation and subcontract provides that the subcontractor verifies by submission of the offer that the size and socioeconomic representations and certifications are current accurate and complete as of the date of offer for the subcontract. See 13 CFR 121.411(b), 125.3(c)(1)(v).
In proposed § 125.3(a)(1), SBA included the new statutory definition for a subcontract that was enacted by NDAA 2014. SBA received one comment that requested more specificity with regard to what will be considered a subcontract. Specifically, this commenter wanted lists of what would and would not be considered a subcontract, based in part on FAR definitions. The proposed definition is taken from the statute, which was added by NDAA 2014, and SBA is adopting the statutory definition in the final rule. See 15 U.S.C. 632(dd)(1).
In proposed § 125.3(a)(1)(i)(C), SBA provided guidance on when a prime contractor may receive credit for lower tier subcontracting. Specifically, the proposed rule stated that only individual subcontracting plans were entitled to receive the credit. SBA has revised this section based on the comments. Specifically, the final rule clearly states how commercial and individual plans differ, and what the prime contractor's and subcontractor's responsibilities and requirements are for individual subcontracting plans as required by the Small Business Act. SBA received several comments asking for clarification, and several comments asking SBA to also apply the new guidelines to commercial subcontracting plans. SBA addressed this issue in its proposed rule, “Section 1614 applies only when determining whether or not a prime contractor has met its individual subcontracting plan goals. Thus, Section 1614 does not apply where the prime contractor has a commercial plan or comprehensive subcontracting plan.” 80 FR 60300, 60301 (October 6, 2015). The Small Business Act specifically states that the prime contractor shall receive lower tier credit “if the subcontracting goals pertain to a single contract with the executive agency.” 15 U.S.C. 637(d)(16)(A)(i). A commercial plan, like a comprehensive subcontracting plan, applies to more than one government contract, and thus the lower tier credit provisions do not apply to those types of plans.
SBA received two comments on the issue of double counting and the incorporation of subcontracting plans from lower tier, other than small subcontractors. One commenter suggested that SBA amend the language of the regulation and add examples to provide clarity. One commenter requested that SBA remove the requirement that other than small subcontractors are required to have their own subcontracting plan, if their plan is incorporated into the prime contractor's plan. The requirement that subcontractors have their own plan is an independent statutory requirement that must be met. SBA has crafted the final rule to make it clear that incorporation
SBA received two comments on proposed § 125.3(c)(1)(i), which proposed to require that in order for a prime contractor to receive credit for awards made at lower tiers, the prime contractor would be required to have a complete subcontracting plan, including incorporation of its subcontractor's goals, prior to award. The Small Business Act requires that subcontracting plans be submitted, negotiated, and approved before contract award. 15 U.S.C. 637(d)(4)(B) and (C). The commenters contend that having all of the necessary steps done and completed prior to award, including the incorporation of lower tier subcontractor's plans, is not practicable on all contracts. The commenters state that often the prime will not be aware of which companies their subcontractors may be utilizing. The Small Business Act provides that prime contractors “shall” receive credit for subcontractors at any tier pursuant to a subcontracting plan required by section 15 U.S.C. 637(d)(6)(D), which is the statutory requirement to require other than small subcontractors to have subcontracting plans if the subcontract exceeds certain threshold amounts. 15 U.S.C. 637(d)(16)(A)(i). Thus, the prime contractor with an individual subcontracting plan will be obligated to consider and establish goals based on the subcontracting plans of its other than small subcontractors prior to award of the contract.
SBA proposed to amend § 125.3(c)(1)(v) to clarify which NAICS should apply to a subcontract and how primes should inform potential subcontractors which NAICS and corresponding size standard will be applied. SBA's regulations currently require that the prime contractor (or subcontractor that is subcontracting to another concern) must assign a NAICS code to the subcontract that best describes the work being performed or the product being purchased by that subcontract. The contractor may not simply pass down the NAICS assigned to the prime contract to all subcontracts. SBA received five negative comments on this requirement, and one comment that believed it would be in conflict with the FAR. However, this is not a new requirement. SBA's current regulations require that each subcontract have a NAICS assigned that describes the work being performed under the subcontract, with the corresponding size standard. While not a new requirement, SBA believes it is important to reiterate why this requirement is necessary to accurately reflect small business participation in subcontracting. Utilizing the prime contract's NAICS for subcontracts may not always accurately describe the work being done under that subcontract. SBA does not have a one-size-fits-all definition of what a small business is, because whether a firm is small depends largely on what type of work it performs, or what type of product it supplies. Utilizing one NAICS code for all subcontracts would distort the calculation of small business subcontracting performance.
Several comments requested clarification on whether, based on the wording of this rule, all subcontracts would require a solicitation. That was not the intention of the regulation, and SBA has added a sentence to the regulation to make this clear. However, it should also be clear that the prime contractor (or lower tier subcontractor that is subcontracting) assigning the NAICS to the subcontract is responsible for providing notice of the size standard to prospective subcontractors prior to acceptance and formation of a subcontract. This is necessary to ensure that small businesses can accurately certify to their size status. SBA also added parentheticals to make clear that this applies to prime contractors and subcontractors.
SBA proposed to add § 125.3(c)(1)(x) to implement 15 U.S.C. 637(d)(6)(D) of the Small Business Act, requiring prime contractors and subcontractors with subcontracting plans to do various tasks in connection with their subcontractors with subcontracting plans. SBA received one negative comment stating the requirements were too burdensome and one comment requesting clarification concerning whether these requirements pertain to commercial subcontracting plans. SBA also received a comment requesting that the requirements of this paragraph and paragraph (xi) be required only if the prime contractor incorporates its subcontractors' subcontracting plans. The requirements articulated in the proposed rule are required by statute for all subcontracting plans, and thus we are adopting the language as proposed in the final rule. Subcontractors of primes with commercial plans do not have to have subcontracting plans if the subcontract is for a commercial item. Consequently, the requirements of § 125.3(c)(1)(x) apply to a prime with a commercial plan to the extent its subcontractors have their own individual subcontracting plans, not commercial plans
SBA received one comment stating that the dollar value thresholds in SBA's rule are different than the recently updated FAR thresholds. The revised inflation adjusted subcontracting plan thresholds became effective after SBA issued the proposed rule, and SBA has updated the thresholds in this final rule.
SBA proposed to add § 125.3(c)(1)(xi) in order to incorporate new requirements from the statute concerning the records the prime contractor must maintain to demonstrate subcontractors at all tiers comply with the subcontracting plan requirements. Two commenters noted confusion as to what was meant by the phrase “recite the types of records the prime will maintain.” SBA is changing language to make clear that a written statement is required.
Finally, with respect to liquidated damages, the Small Business Act provides that each contract subject to the requirements for a subcontracting plan shall contain a clause for the payment of liquidated damages upon a finding that a prime contractor has failed to make a good faith effort to comply with the requirements imposed on such subcontractor by section 8(d)(4)(F) of the Small Business Act, 15 U.S.C. 637(d)(4)(F). Thus, a prime contractor could be subject to liquidated damages if it fails to make a good faith effort to review and approve subcontracting plans submitted by its subcontractors; monitor subcontractor compliance with its approved subcontracting plans; ensure that subcontracting reports are submitted by its subcontractors when required; acknowledge receipt of its subcontractors' reports; compare the performance of its subcontractors to subcontracting plans and goals; and discuss performance with subcontractors when necessary to ensure its subcontractors make a good faith effort to comply with their subcontracting plans.
The Office of Management and Budget (OMB) has determined that this final rule is a significant regulatory action for the purposes of Executive Order 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis. This is not a major rule, however, under the Congressional Review Act.
The final regulations implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014. Section 1614(c)(3) requires the Administrator to promulgate regulations necessary to implement the Act.
The benefits of the final regulations are minimal and the final costs cannot be determined until the FAR rules are proposed. Other than small business prime contractors and subcontractors already establish individual subcontracting plan goals and report on their achievements if the subcontracting plan thresholds are met. Under section 1614 of the NDAA 2014, a prime contractor with an individual subcontracting plan will receive credit towards its goals for small business performance at lower tiers. Thus, there will be some costs to the prime contractor to propose subcontracting plan goals that incorporate small business performance at lower tiers and to ensure that their subcontractors have plans and submit required reports, and there will also be costs to the Government to evaluate whether the prime contractor's goals adequately address maximum practicable small business subcontracting opportunity at all tiers. SBA estimates that there were approximately 34,000 individual subcontracting plans in fiscal year 2015, and that approximately 24,000 were at the prime contract level. Other than small firms may have multiple individual subcontracting plans at the prime and sub level, so the number of other than small firms affected by this rule will be less than the number of individual subcontracting plans, but we cannot say with any precision how many will be impacted. There may also be costs to the Government as eSRS may have to be modified to allow other than small prime contractors to receive small business credit at any tier towards their subcontracting plan goals. However, SBA is not able to estimate these costs because the system will be modified when this rule is implemented into the FAR and the process for capturing the lower tier reports is further defined. There should not be any costs imposed on small business concerns as this rule does not change any reporting or recordkeeping requirements for small business concerns.
Many of the final regulations are required to implement specific statutory provisions which require promulgation of implementing regulations. There are no other alternatives that would meet the statutory requirements.
As part of its ongoing efforts to engage stakeholders in the development of its regulations, SBA has solicited comments and suggestions from the public and the procuring agencies on how to best implement section 1614 of NDAA 2014. For example, SBA received comments from the American Bar Association Section of Public Contract Law, the Associated General Contractors of America, the Council of Defense and Space Industry Associations, the U.S. Women's Chamber of Commerce, and Women Impacting Public Policy (WIPP).
SBA has incorporated those comments and suggestions to the extent feasible. SBA has considered the comments received in response to the proposed rule and incorporated public input into the final rule to the extent feasible.
For purposes of Executive Order 12988, SBA has drafted this final rule, to the extent practicable, in accordance with the standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, 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 final 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 layers of government. Therefore, SBA has determined that this final rule has no federalism implications warranting preparation of a federalism assessment.
For purposes of the Paperwork Reduction Act (PRA), SBA has determined that this final rule, if adopted in final form, would not impose new government-wide reporting and recordkeeping requirements on other than small prime contractors and subcontractors. If any information collection procedures change or are amended during the subsequent FAR rulemaking of this SBA rule, they will be addressed in the FAR rulemaking process.
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. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. The RFA defines “small entity” to include “small businesses,” “small organizations,” and “small governmental jurisdictions.” This final rule concerns various aspects of SBA's contracting programs. As such, the rule relates to small business concerns, but would not affect “small organizations” or “small governmental jurisdictions” because those programs generally apply only to “business concerns” as defined by SBA regulations, in other words, to small businesses organized for profit. “Small organizations” or “small governmental jurisdictions” are non-profits or governmental entities and do not generally qualify as “business concerns” within the meaning of SBA's regulations.
This rule will impact other than small business concerns, as small business concerns are not required to have subcontracting plans. Other portions of the rule simply clarify existing regulations, and do not impose new requirements on small business concerns. As discussed previously, SBA's rules currently require firms to certify their size and socioeconomic status in connection with subcontracts. This rule simply clarifies that the requirement to certify applies to the solicitation for the subcontract. In sum, the final rule will not have a disparate impact on small businesses or impose any additional costs on small business concerns. For the reasons discussed, SBA certifies that this final rule will not have a significant economic impact on
Government contracts, Government procurement, Small businesses, Size standards.
Government contracts, Government procurement, Reporting and recordkeeping requirements, Small businesses, Small business subcontracting.
For the reasons stated in the preamble, SBA amends 13 CFR parts 121 and 125 as follows:
15 U.S.C. 632, 634(b)(6), 662, and 694a(9).
(b) * * * Prime contractors (or subcontractors) may accept paper self-certifications as to size and socioeconomic status or a subcontractor's electronic self-certification as to size or socioeconomic status, if the solicitation for the subcontract contains a clause which provides that the subcontractor verifies by submission of the offer that the size or socioeconomic representations and certifications are accurate and complete. Electronic submission may include any method acceptable to the prime contractor (or subcontractor) including, but not limited to, size representations and certifications made in SAM (or any successor system) and electronic conveyance of subcontractor certifications in prime contractor systems in connection with an offer for a subcontract. * * *
15 U.S.C. 632(p), (q); 634(b)(6), 637, 644, 657f, and 657q.
The additions and revisions read as follows:
(a) * * *
(1) Subcontract under this section means a legally binding agreement between a contractor that is already under contract to another party to perform work and a third party (other than one involving an employer-employee relationship), hereinafter referred to as the subcontractor, for the subcontractor to perform a part or all of the work that the contractor has undertaken.
(i) * * *
(C) Where the prime contractor has an individual subcontracting plan, the prime contractor shall establish two sets of small business subcontracting goals, one goal for the first tier and one goal for lower tier subcontracts awarded by other than small subcontractors with individual subcontracting plans. Under individual subcontracting plans the prime contractor shall receive credit for small business concerns performing as first tier subcontractors (first tier goal) and subcontractors at any tier pursuant to the subcontracting plans required under paragraph (c) of this section in an amount equal to the dollar value of work awarded to such small business concerns (lower tier goal). Other-than-small, lower tier subcontractors must have their own individual subcontracting plans if the subcontract is at or above the subcontracting plan threshold, and are required to make a good faith effort to meet their subcontracting plan goals. The prime contractor and any subcontractor with a subcontracting plan are responsible for reporting on subcontracting performance under their contracts or subcontracts at their first tier. The prime contractor's performance under its individual subcontracting plan will be calculated using its own reporting at the first tier for its first tier goal and its subcontractors' first tier reports under their plans for the lower tier subcontracting goals. The prime contractor's performance under the individual subcontracting plan must be evaluated based on its combined performance under the first tier and lower tier goal.
(D) Other-than-small prime contractors and subcontractors with subcontracting plans shall report on their subcontracting performance on the Summary Subcontracting report (SSR) at their first tier only.
(1) * * *
(i) Submitting and negotiating before award an acceptable subcontracting plan that reflects maximum practicable opportunities for small businesses in the performance of the contract as subcontractors or suppliers at all tiers of performance. * * *
(v) The contractor must assign to each subcontract, and to each solicitation, if a solicitation is utilized, the NAICS code and corresponding size standard that best describes the principal purpose of the subcontract (see § 121.410 of this chapter). A formal solicitation is not required for each subcontract, but the contractor must provide some form of written notice of the NAICS code and size standard assigned to potential offerors prior to acceptance and award of the subcontract. The prime contractor (or subcontractor) may rely on a subcontractor's electronic representations and certifications, if the solicitation for the subcontract contains a clause which provides that the subcontractor verifies by submission of the offer that the size or socioeconomic representations and certifications are current, accurate and complete as of the date of the offer for the subcontract. Electronic submission may include any method acceptable to the prime contractor (or subcontractor) including, but not limited to, size or socioeconomic representations and certifications made in SAM (or any successor system). A prime contractor (or subcontractor) may not require the use of SAM (or any successor system) for purposes of representing size or socioeconomic status in connection with a subcontract;
(x) Except when subcontracting for commercial items, the prime contractor must require all subcontractors (except small business concerns) who receive subcontracts in excess of $1,500,000 in
(xi) The prime contractor must provide a written statement of the types of records it will maintain to demonstrate procedures which have been adopted to ensure subcontractors at all tiers comply with the requirements and goals set forth in the subcontracting plan established in accordance with paragraph (c)(1)(x) of this section, including the establishment of source lists of small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women; the efforts to identify and award subcontracts to such small business concerns; and size or socioeconomic certifications or representations received in connection with each subcontract.
Notification regarding expired temporary rule.
The Commission is providing notice regarding temporary Rule 608T under the Securities Exchange Act of 1934. The Commission designated 12:01 a.m. on November 16, 2016, as the expiration time for Rule 608T, because after that time the rule would no longer be necessary.
December 23, 2016.
Rebekah Liu, Special Counsel, at (202) 551-5665; Jennifer Colihan, Special Counsel, at (202) 551-5642; Leigh Duffy, Special Counsel, at (202) 551-5928; John Lee, Special Counsel, at (202) 551-5689; or Ted Uliassi, Special Counsel, at (202) 551-6905, or Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-7010.
On November 3, 2016, the Securities and Exchange Commission adopted a temporary rule, Rule 608T, under the Securities Exchange Act of 1934 to extend to November 15, 2016, the date by which the Commission was required to act on the proposed National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan”). Rule 608T solely governed the timeframe for action on the proposed CAT NMS Plan. The Commission adopted the temporary rule as an interim final temporary rule in light of the impending November 10, 2016 date designated by the Commission under Rule 608 as the date by which the Commission would take action on the proposed CAT NMS Plan. The Commission designated 12:01 a.m. on November 16, 2016, as the expiration time for Rule 608T because after that time the temporary rule would no longer be necessary.
On November 3, 2016, the Commission published the temporary rule on its Web site. Due to a subsequent clerical error, the temporary rule was not published in the
Food and Drug Administration, HHS.
The Food and Drug Administration (FDA) is classifying the neurovascular mechanical thrombectomy device for acute ischemic stroke treatment into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the neurovascular mechanical thrombectomy device for acute ischemic stroke treatment's classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.
This order is effective December 23, 2016. The classification was applicable on September 2, 2016.
Leigh Anderson, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2656, Silver Spring, MD 20993-0002, 301-796-5613,
In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA
Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1). Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.
In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA shall classify the device by written order within 120 days. This classification will be the initial classification of the device.
On October 26, 2015, Concentric Medical, Inc., submitted a request for classification of the Trevo ProVue and XP ProVue Retrievers (Trevo Retrievers) under section 513(f)(2) of the FD&C Act.
In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on September 2, 2016, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 882.5600.
Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for a neurovascular mechanical thrombectomy device for acute ischemic stroke treatment will need to comply with the special controls named in this final order.
The device is assigned the generic name neurovascular mechanical thrombectomy device for acute ischemic stroke treatment, and it is identified as a prescription device used in the treatment of acute ischemic stroke to improve clinical outcomes. The device is delivered into the neurovasculature with an endovascular approach, mechanically removes thrombus from the body, and restores blood flow in the neurovasculature.
FDA has identified the following risks to health associated specifically with this type of device, as well as the measures required to mitigate these risks in table 1.
FDA believes that the special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of the safety and effectiveness.
Neurovascular mechanical thrombectomy device for acute ischemic stroke treatment devices are not safe for use except under the supervision of a practitioner licensed by law to direct the use of the device. As such, the device is a prescription device and must satisfy prescription labeling requirements (see 21 CFR 801.109
Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the neurovascular mechanical thrombectomy device for acute ischemic stroke treatment they intend to market.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.
Medical devices, Neurological devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 882 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(1) The patient contacting components of the device must be demonstrated to be biocompatible.
(2) Non-clinical performance testing must demonstrate that the device performs as intended under anticipated conditions of use, including:
(i) Mechanical testing to demonstrate the device can withstand anticipated tensile, torsional, and compressive forces.
(ii) Mechanical testing to evaluate the radial forces exerted by the device.
(iii) Non-clinical testing to verify the dimensions of the device.
(iv) Non-clinical testing must demonstrate the device can be delivered to the target location in the neurovasculature and retrieve simulated thrombus under simulated use conditions.
(v) Non-clinical testing must demonstrate the device is radiopaque and can be visualized.
(vi) Non-clinical testing must evaluate the coating integrity and particulates under simulated use conditions.
(vii) Animal testing must evaluate the safety of the device, including damage to the vessels or tissue under anticipated use conditions.
(3) Performance data must support the sterility and pyrogenicity of the patient contacting components of the device.
(4) Performance data must support the shelf-life of the device by demonstrating continued sterility, package integrity, and device functionality over the specified shelf-life.
(5) Clinical performance testing of the device must demonstrate the device performs as intended for use in the treatment of acute ischemic stroke and must capture any adverse events associated with the device and procedure.
(6) The labeling must include:
(i) Information on the specific patient population for which the device is intended for use in the treatment of acute ischemic stroke, including but not limited to, specifying time from symptom onset, vessels or location of the neurovasculature that can be accessed for treatment, and limitations on core infarct size.
(ii) Detailed instructions on proper device preparation and use for thrombus retrieval from the neurovasculature.
(iii) A summary of the clinical testing results, including a detailed summary of the device- and procedure-related complications and adverse events.
(iv) A shelf life.
Bureau of Prisons, Justice.
In this document, the Bureau of Prisons makes a minor technical change to its regulations on contraband and inmate personal property to maintain consistency in language which describes the purpose of the regulations as ensuring the safety, security, or good order of the facility or protection of the public.
This rule will be effective on January 23, 2017.
Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 307-2105.
In this document, the Bureau of Prisons (Bureau) finalizes a minor technical change to its regulations on contraband and inmate personal property to maintain consistency in language which describes the purpose of the regulations as ensuring the “safety, security, or good order of the facility or protection of the public.”
Variations on this phrase appear throughout the Bureau's regulations in 28 CFR Chapter V.
The Bureau has conformed the phrase in all revised regulations since approximately 2005. This rule likewise conforms this phrase in the Bureau's regulations on contraband. An interim rule on this subject was published on August 3, 2015 (80 FR 45883), and became effective on September 2, 2015, although public comments were accepted until October 2, 2015.
Prior to the September 2, 2015, effective date of the interim rule, the definition of contraband in § 500.1(h) read as follows: “Contraband is material prohibited by law, or by regulation, or material which can reasonably be expected to cause physical injury or adversely affect the security, safety, or good order of the institution.” The interim rule conformed the “security, safety, or good order” phrase to the language we have used in recent years, to read as follows: “Contraband is material prohibited by law, regulation, or policy that can reasonably be expected to cause physical injury or adversely affect the safety, security, or good order of the facility or protection of the public.”
Likewise, to conform the phrase and underscore the importance of prohibiting contraband, we added the phrase to the end of the first sentence of § 553.10, regarding inmate personal property, to read as follows: “It is the policy of the Bureau of Prisons that an inmate may possess ordinarily only that property which the inmate is authorized to retain upon admission to the institution, which is issued while the inmate is in custody, which the inmate purchases in the institution commissary, or which is approved by staff to be mailed to, or otherwise received by an inmate,
It is important to note that neither the interim nor this final rule change the substantive requirements or obligations relating to petitions for commutation of sentence, nor do they seek to alter the Bureau's responsibilities in this regard.
We received two comments on the August 3, 2015 interim rule via the publicly-accessible
One commenter requested that the Bureau of Prisons “plainly spell out the changes that are being put out for public notice,” indicating confusion with regard to the interim rule changes.
The interim rule contained an explanation of the changes made by the interim rule. It is possible that the commenter may have read only the summary available on the
The interim rule document made a minor technical change to the Bureau of Prisons regulations on contraband and inmate personal property: We added the phrase “safety, security, or good order of the facility or protection of the public.” We did this to show that this is the purpose of the contraband regulations—to ensure the “safety, security, or good order of the facility or protection of the public.” We also did this because this phrase appears, for the same purpose, throughout the Bureau's other regulations, and we have used this phrase in new regulations, when possible, since 2005. The addition of the phrase did not change the meaning or requirements of the regulations to which it was added, and did not alter the Bureau's responsibilities.
The second commenter stated as follows: “So many times inmates come to facilities and mix with wrong crowds out of fear or intimidation. Leaving lockers unlocked due to [comfort] and many other reasons. These things should be [taken into account] if this happens three times in one year they should be further reviews on the inmates. This is not tolerated but common for Camps.” This comment is not relevant to the current regulation change, which does not discuss inmate lockers or storage of personal property. The Bureau will take this comment into consideration when developing new policy with regard to inmates in federal prison camps.
For the aforementioned reasons, the Bureau now finalizes the interim rule published on August 2, 2015, without change.
Office of Foreign Assets Control, Treasury.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is adopting a final rule amending the Iranian Transactions and Sanctions Regulations (ITSR) to reflect OFAC's licensing policies and address inquiries from the regulated public. This final rule makes changes relating to authorized sales of agricultural commodities, medicine, and medical devices to Iran pursuant to the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), as amended, and clarifies the definition of the terms
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 (
OFAC first issued regulations to implement TSRA (22 U.S.C. 7201
TSRA provides that, with certain exceptions, the President may not impose a unilateral agricultural sanction or unilateral medical sanction against a foreign country or foreign entity unless, at least 60 days before imposing such a sanction, the President submits a report to Congress describing the proposed sanction and the reasons for it and Congress enacts a joint resolution approving the report.
As provided in Section 221 of the USA PATRIOT Act (Pub. L. 107-56) (codified at 22 U.S.C. 7210), nothing in TSRA shall limit the application or scope of any law, including any Executive order or regulation promulgated pursuant to such law, establishing criminal or civil penalties for the unlawful export of any agricultural commodity, medicine, or medical device to: A Foreign Terrorist Organization; a foreign organization, group, or person designated pursuant to Executive Orders 12947 or 13224 (sanctions on terrorists and certain supporters of terrorism); weapons of mass destruction or missile proliferators; or designated narcotics trafficking entities. In addition, TSRA provides in Section 904(2) that the restrictions on the imposition of unilateral agricultural sanctions or unilateral medical sanctions shall not affect any authority or requirement to impose a sanction to the extent such sanction applies to any agricultural commodity, medicine, or medical device that is controlled on the United States Munitions List (USML), controlled on any control list established under the Export Administration Act of 1979 or any successor statute, or used to facilitate the design, development, or production of chemical or biological weapons, missiles, or weapons of mass destruction.
On October 22, 2012, OFAC adopted a final rule that, among other things, added a general license in § 560.530(a)(3) of the ITSR that authorized the exportation or reexportation of medicine and basic medical supplies to the Government of Iran, to individuals or entities in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing, and the conduct of related transactions (
Also on April 17, 2014, OFAC expanded an existing general license in § 560.530(a)(2) that authorized the exportation and reexportation of food to authorize the exportation or reexportation of the broader category of agricultural commodities, with certain specified exceptions, to the Government of Iran, to individuals or entities in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing, and the conduct of related transactions (
Since these amendments, in consultation with the Department of State, OFAC has routinely issued specific licenses authorizing the exportation or reexportation of certain additional medical devices and agricultural commodities to the Government of Iran, to individuals or entities in Iran, or to persons in third countries purchasing such goods specifically for resale to any of the foregoing. In addition, OFAC has continued to receive feedback from the regulated public and review its TSRA licensing procedures, particularly the procedures for licensing exports and reexports of medical devices and agricultural commodities.
As a result of this review, OFAC today is amending the general license relating to authorized sales of certain medical devices in § 560.530(a)(3) to expand the scope of medical devices that may be exported or reexported to Iran without specific authorization. OFAC is also narrowing the list of agricultural commodities excluded from the general license relating to authorized sales of agricultural commodities in § 560.530(a)(2). In addition, in response to feedback from the regulated public regarding improving patient safety, OFAC is making the following changes: Expanding existing general licenses to authorize the provision of training for the safe and effective use or operation of agricultural commodities, medicine, and medical devices; expanding an existing general license authorizing the exportation or reexportation to Iran of replacement parts to permit certain additional replacement parts to be exported or reexported and stored for future use; adding a new general license to authorize the exportation and reexportation to Iran of software and services related to the operation, maintenance, and repair of medical devices previously exported pursuant to an OFAC authorization; and adding a new general license to authorize the importation into the United States of items previously exported pursuant to an OFAC authorization in connection with product recalls, adverse events, or other safety concerns, as set forth in more detail below.
To address inquiries from the regulated public, including with regard to the status of goods on vessels and aircraft, OFAC also is amending the definition in § 560.306 of the terms
Because the amendment of the ITSR involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.
The collections of information related to the ITSR are contained in 31 CFR part 501 (the Reporting, Procedures and Penalties Regulations). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
Administrative practice and procedure, Agricultural commodities, Banks, Banking, Iran, Medicine, Medical devices.
For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 560 as follows:
3 U.S.C. 301; 18 U.S.C. 2339B, 2332d; 22 U.S.C. 2349aa-9; 22 U.S.C. 7201-7211; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110-96, 121 Stat. 1011 (50 U.S.C. 1705 note); Pub. L. 111-195, 124 Stat. 1312 (22 U.S.C. 8501-8551); Pub. L. 112-81, 125 Stat. 1298 (22 U.S.C. 8513a); Pub. L. 112-158, 126 Stat. 1214 (22 U.S.C. 8701-8795); E.O. 12613, 52 FR 41940, 3 CFR, 1987 Comp., p. 256; E.O. 12957, 60 FR 14615, 3 CFR, 1995 Comp., p. 332; E.O. 12959, 60 FR 24757, 3 CFR, 1995 Comp., p. 356; E.O. 13059, 62 FR 44531, 3 CFR, 1997 Comp., p. 217; E.O. 13599, 77 FR 6659, 3 CFR, 2012 Comp., p. 215; E.O. 13628, 77 FR 62139, 3 CFR, 2012 Comp., p. 314.
(a) Except as provided in paragraph (b) of this section, the terms
(1) Goods grown, produced, manufactured, extracted, or processed in Iran; and
(2) Goods that have entered into Iranian commerce.
(b) The terms
(1) Goods exported or reexported to Iran under an authorization issued pursuant to this part and that have subsequently been reexported from and are located outside of Iran; or
(2) Goods transported on a vessel or aircraft, as well as the vessel or aircraft itself, that passed though Iranian territorial waters or stopped at a port or place in Iran en route to a destination outside of Iran and that have not otherwise come into contact with Iran.
Pursuant to this section, goods that are temporarily offloaded from a vessel in Iranian territorial waters or at a port or place in Iran and reloaded onto the same vessel or another vessel in the same location en route to a destination outside of Iran and that have not otherwise come into contact with Iran are not considered goods of Iranian origin. Similarly, goods that are offloaded from an aircraft at a place in Iran and reloaded onto the same aircraft or another aircraft in the same location en route to a destination outside of Iran and that have not otherwise come into contact with Iran are not considered goods of Iranian origin.
The revisions and additions read as follows:
(a)(1) * * *
(ii) * * *
(C) The excluded medical devices specified in paragraph (a)(3)(ii) of this section; and
(D) Agricultural commodities (as defined in paragraph (e)(1) of this
(2) * * *
(A) Unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532;
(B) Any technology released pursuant to this authorization is designated as EAR99; and
(C) Such training is not provided to any military, intelligence, or law enforcement entity, or any official or agent thereof.
(A) Unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532;
(B) Any technology released pursuant to this authorization is designated as EAR99; and
(C) Such training is not provided to any military, intelligence, or law enforcement entity, or any official or agent thereof.
(4) * * *
(i) Except as provided in paragraph (a)(4)(ii) of this section, the exportation or reexportation by a covered person (as defined in paragraph (e)(4) of this section) of replacement parts to the Government of Iran, to any individual or entity in Iran, or to persons in third countries purchasing specifically for resale to any of the foregoing, for medical devices (as defined in paragraph (e)(3) of this section) exported or reexported pursuant to paragraph (a)(1) or (a)(3)(i) of this section, and the conduct of related transactions, including the making of shipping and cargo inspection arrangements, obtaining of insurance, arrangement of financing and payment, shipping of the goods, receipt of payment, and entry into contracts (including executory contracts), are hereby authorized, provided that, unless otherwise authorized by specific license, payment terms and financing for sales pursuant to this general license are limited to, and consistent with, those authorized by § 560.532; and further provided that:
(A) Such replacement parts are designated as EAR99, or, in the case of replacement parts that are not subject to the Export Administration Regulations, 15 CFR parts 730
(B) Such replacement parts are exported or reexported to replace a broken or nonoperational component of a medical device that previously was exported or reexported pursuant to paragraph (a)(3)(i) of this section, or the exportation or reexportation of such replacements parts is necessary and ordinarily incident to the proper preventative maintenance of such a medical device;
(C) The number of replacement parts that are exported or reexported and stored in Iran does not exceed the number of corresponding operational parts currently in use in relevant medical devices in Iran; and
(D) The broken or non-operational replacement parts that are being replaced are promptly exported, reexported, or otherwise provided to a non-Iranian entity located outside of Iran selected by the supplier of the replacement parts.
(c) * * *
(5) For items subject to the EAR, an Official Commodity Classification of EAR99 issued by the Department of Commerce's Bureau of Industry and Security (BIS), certifying that the product is designated as EAR99, is required to be submitted to OFAC with the request for a license authorizing the exportation or reexportation of all fertilizers, live horses, western red cedar, or the excluded medical devices specified in paragraph (a)(3)(ii) of this section.
Environmental Protection Agency (EPA).
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Maryland. This revision pertains to Maryland's adoption of the requirements in EPA's control technique guidelines (CTG) for fiberglass boat manufacturing materials. EPA is approving this Maryland SIP submittal as it is in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on January 23, 2017.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0304. All documents in the docket are listed on the
Gavin Huang, (215) 814-2042, or by email at
On August 1, 2016 (81 FR 50427 and 81 FR 50336), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for the State of Maryland. On September 16, 2016 (81 FR 63701), EPA withdrew the DFR due to the receipt of a comment on the proposed rulemaking. In the NPR, EPA proposed to include in the Maryland SIP a Maryland regulation which adopted the requirements in EPA's CTG for fiberglass boat manufacturing materials. The formal SIP revision (#15-07) was submitted by Maryland on December 23, 2015.
As described in the DFR published on August 1, 2016 (81 FR 50336), section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including reasonably available control technology (RACT), for sources of emissions. Additionally, Maryland is in the Ozone Transport Region (OTR) established under section 184(a) of the CAA. Pursuant to section 184(b)(1)(B) of the CAA, all areas in the OTR must submit SIP revisions that include implementation of RACT with respect to all sources of volatile organic compounds (VOC) in the states covered by a CTG.
In September 2008, EPA developed a CTG entitled Control Techniques Guidelines for Fiberglass Boat Manufacturing Materials (Publication No. EPA 453/R-08-004). The CTG for fiberglass boat manufacturing materials provides control recommendations for reducing VOC emissions from the use of gel coats, resins, and materials used to clean application equipment in fiberglass boat manufacturing operations. This CTG applies to facilities that manufacture hulls or decks of boats from fiberglass or build molds to make fiberglass boat hulls or decks.
On December 23, 2015, the Maryland Department of the Environment (MDE) submitted on behalf of the State of Maryland to EPA SIP revision #15-07 concerning implementation of RACT requirements for the control of VOC emissions from fiberglass boat manufacturing materials. Maryland adopted EPA's CTG standards for fiberglass boat manufacturing materials through a regulation found at Code of Maryland Regulations (COMAR) 26.11.19 (relating to VOC from specific processes). This SIP revision adds COMAR 220.127.116.11-1 (control of VOC emissions from fiberglass boat manufacturing materials) to the Maryland SIP and also includes an amendment to COMAR 18.104.22.168 (control of VOC emissions from reinforced plastic manufacturing) which was previously approved into the Maryland SIP. In addition to adopting EPA's CTG standards, COMAR 22.214.171.124-1 includes numerous terms and definitions to support the interpretation of the measures, as well as work practices for cleaning, compliance and monitoring requirements, sampling and testing, and record keeping requirements. The amendment to COMAR 126.96.36.199 at COMAR 188.8.131.52A exempts fiberglass boat manufacturing from provisions within COMAR 184.108.40.206 to avoid duplicative or conflicting requirements. Prior to Maryland's new COMAR 220.127.116.11-1, fiberglass boat manufacturing materials were covered under COMAR 18.104.22.168 which did not address fully EPA's CTG requirements. Thus, with COMAR 22.214.171.124-1 now addressing fiberglass boat manufacturing materials, Maryland has revised COMAR 126.96.36.199A to clarify and exempt fiberglass boat manufacturing materials from COMAR 188.8.131.52A as these are now clearly addressed in COMAR 184.108.40.206-1. EPA finds the provisions in COMAR 220.127.116.11-1 identical to the CTG standards for fiberglass boat manufacturing materials and therefore approvable in accordance with sections 172(c)(1) and 184(b)(1)(B) of the CAA.
EPA received a comment from the Export Inspection Council of India within the Ministry of Commerce and Industry, Government of India (hereinafter referred to as “Commenter”) on the August 1, 2016 NPR.
EPA is approving the December 23, 2015 Maryland SIP submittal, which revises the Maryland SIP by adding new regulation COMAR 18.104.22.168-1 and amending COMAR 22.214.171.124, because the SIP submittal meets the requirement to adopt RACT for sources covered by EPA's CTG standards for fiberglass boat manufacturing materials and is in accordance with requirements in CAA sections 172, 182 and 184.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of COMAR 126.96.36.199-1 and an amendment to COMAR 188.8.131.52 addressing VOC content limits for fiberglass boat manufacturing into the Maryland SIP. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 21, 2017. 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 approving the Maryland SIP revision adding new regulation COMAR 184.108.40.206-1 and amending COMAR 220.127.116.11 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency.
Direct final rule; notice of partial deletion of the North Penn Area 6 Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region III is publishing a direct final notice of partial deletion of a portion of the North Penn Area 6 Superfund Site (Site) located in Lansdale Borough, Montgomery County, Pennsylvania, from the National Priorities List (NPL). The deletion affects approximately 6.5 acres located at 135 East Hancock Street (the “Administrative Parcel”). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final partial deletion is being published by EPA with the concurrence of the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), because EPA has determined that all appropriate response actions at the Administrative Parcel under CERCLA, other than five-year reviews, have been completed. However, this partial deletion does not preclude future actions at the Administrative Parcel under Superfund.
This partial deletion pertains to soils and groundwater of the Administrative Parcel portion of the Site. The other portions of the Site will remain on the NPL, and are not being considered for deletion as part of this action.
This direct final partial deletion is effective February 21, 2017 unless EPA receives adverse comments by January 23, 2017. If adverse comments are received, EPA will publish a timely withdrawal of the direct final partial deletion in the
Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1989-0009, by one of the following methods:
• U.S. EPA Region III, Superfund Records Center, 6th Floor, 1650 Arch Street, Philadelphia, PA 19103-2029;
• The Lansdale Public Library, 301 Vine St, Lansdale, PA 19446; phone (215) 855-3228. Monday through Friday 10:00 a.m.-9:00 p.m.
Huu Ngo, Remedial Project Manager (3HS21), U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029; (215) 814-3187; email:
EPA Region III is publishing this direct final Notice of Partial Deletion of a portion the North Penn Area 6 Superfund Site from the National Priorities List (NPL). This partial deletion pertains to the soils and groundwater of the Administrative Parcel portion of the Site. The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the North Penn Area 6 Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in 40 CFR 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial actions if future conditions warrant such actions.
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the Administrative Parcel of the North Penn Area 6 Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Administrative Parcel portion of the Site from the NPL unless adverse comments are received during the public comment period.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the Commonwealth, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates such action is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to deletion of the Administrative Parcel portion of the Site:
(1) EPA consulted with the Commonwealth of Pennsylvania prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published today in the “Proposed Rules” section of the
(2) EPA provided the Commonwealth 30 working days for review of this notice and the parallel Notice of Intent for Partial Deletion prior to their publication today, and the Commonwealth, through PADEP, concurred on the partial deletion of the Site from the NPL.
(3) Concurrently with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in a major local newspaper,
(4) The EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.
(5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date, and will prepare a response to comments and continue with the deletion process, as appropriate, on the basis of the Notice of Intent for Partial Deletion and the comments already received.
Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Administrative Parcel portion of the Site from the NPL:
The North Penn Area 6 Superfund Site (EPA Identification Number PAD980926976) is located primarily in Lansdale Borough, Montgomery County, Pennsylvania. The Site is comprised of multiple properties contaminated primarily with volatile organic compounds (VOCs) in the soil and associated groundwater contamination. One of the properties consists of approximately 10 acres of land located at 135 East Hancock Street in Lansdale Borough (the “Property”). The Property was formerly occupied by the Tate Andale Company, and later by the Rogers Mechanical Company. The Administrative Parcel is comprised of approximately 6.5 acres located within the Property.
The current owner of the Property, including the Administrative Parcel, is
The Property is currently occupied by three buildings, portions of two former structures, and footers and concrete pads from previous on-site buildings. A treatment system operated currently by EPA for treatment of groundwater and multiple monitoring wells are also present at the Property. The Property is bordered to the southwest by East Hancock Street, and to the west, northwest, and east by railroad lines. The ground surface elevation of the Property is approximately 370 feet above mean sea level. The Property consists of relatively flat terrain with a gradual slope towards the southwest. There are no surface water bodies located within the boundaries of the Property. The nearest body of water is the Towamencin Creek, which is located approximately 2,800 feet southwest of the Property. Surface water runoff following precipitation events either infiltrates the ground surface or drains towards the western portion of the Property prior to entering a swale adjacent to the neighboring railroad tracks. Surrounding land use includes commercial, industrial, and residential uses.
The Tate Andale Company formerly occupied the Property dating back to at least the 1920s, and historically used the Property to fabricate oil coolers, heaters, and strainers. Rogers Mechanical Company purchased the Property in 1985 and operated a plumbing and heating business. The former Tate Andale Company was one of twenty-six property owners/operators to be identified as a potentially responsible party (PRP) at the Site following the detection of groundwater contamination in the Lansdale area in 1979. North Penn Area 6 was proposed to the National Priorities List on January 22, 1987 (52 FR 27620), and became a Superfund Site when the listing became final on March 31, 1989 (54 FR 13296). EPA divided the Site into three operable units (OUs). Operable Unit One (OU1) consists of Fund-financed response actions to address the contaminated soils at certain of the properties that comprise the Site. Operable Unit Two (OU2) consists of PRP-financed response actions to address the contaminated soils at certain other properties that comprise the Site. Operable Unit Three (OU3) consists of Fund-financed and PRP-financed response actions to address the contaminated groundwater over the entire Site. All activities associated with investigation and remediation at the Property were performed by EPA and financed by the Fund, and are part of OU1 and OU3. The Administrative Parcel consists of soils and groundwater on the aforementioned approximately 6.5 acre portion of the Property.
Soils at the Property were investigated as part of the OU1 Remedial Investigation and Feasibility Study (RI/FS). The OU1 RI at the Property focused primarily on a coal ash and scrap metal pile located on the southwestern portion of the Property and another area on the eastern portion of the Property. Soil gas and soil samples were collected from these areas, and elevated levels of VOCs were found in the area on the eastern portion of the Property. Trichloroethylene (TCE) was detected at concentrations up to 4600 μg/kg, and contaminants associated with the breakdown of TCE were also found at elevated levels. The Risk Assessment determined that the contaminant levels would present a risk to groundwater, and a cleanup standard of 131 μg/kg for TCE in soil was determined to protect groundwater. An area comprising roughly 18,000 cubic feet of soil on the east side of the Property was determined to require treatment. The OU1 Feasibility Study considered alternatives for remediation of the VOC-contaminated soil including No Action, Containment with Cap, Vapor Extraction, Low Temperature Thermal Desorption, Soil Washing/Biotreatment, Excavation and Off-site Disposal, and In-Place Processing with Hot Air Injection.
The Property was one of four properties addressed in the 1995 Record of Decision (ROD) for OU1. The OU1 Remedial Action Objective was to prevent further contamination of groundwater from contaminated soils. The selected alternative was in-place processing using hot air injection, with excavation and off-site disposal as a back-up. During the Remedial Design, it was determined that hot air injection would not achieve the performance standards of the OU1 ROD, and the backup remedy of excavation and off-site disposal was used to meet performance standards. Approximately 861 cubic yards of contaminated soil were removed from the Property as part of the OU1 remedial action and disposed of in a Resource Conservation and Recovery Act (RCRA) permitted landfill facility in Model City, New York. EPA approved the OU1 remedial action report for the Property in 2001.
OU2 consists of soils investigations at certain enforcement-lead properties. The Property (including the Administrative Parcel to be deleted from the NPL) is not included in OU2.
Groundwater contamination was investigated as part of the RI/FS for OU3. Groundwater contamination at the Property is focused primarily in the southwestern portion of the Property. The OU3 RI/FS found contamination from VOCs at unacceptable levels in monitoring wells and a former production well (TA-1) on the Property. Contamination in well TA-1 was found at concentrations up to 7,740 μg/L of TCE, and the Property was included in the OU3 Feasibility Study to evaluate alternatives for treatment of the groundwater. The OU3 Feasibility Study considered several alternatives involving extraction of contaminated groundwater using differing treatment technologies and differing discharge points.
The Property was included in the OU3 ROD in 2000, which called for construction of groundwater extraction and treatment systems at several properties, including the Property, included in the Site to remediate the contaminated groundwater. The goal of the groundwater extraction and treatment systems is to restore the aquifer to beneficial use as a potable use aquifer. The major components of the selected remedy in the OU3 ROD include the following:
• Completion of a groundwater remedial design study to determine the most efficient design of a groundwater extraction and treatment system.
• Installation, operation, and maintenance of on-site groundwater extraction wells to remove contaminated groundwater from beneath the Site and to prevent contaminants from migrating off-site.
• Installation, operation, and maintenance of air stripping treatment at on-site groundwater extraction wells to treat groundwater to required cleanup levels.
• Construction, operation, and maintenance of a pipeline from the on-site groundwater treatment systems to the nearest surface water body or storm drain leading to a surface water body.
• Periodic sampling of groundwater and treated water to ensure treatment components are effective and groundwater remediation is progressing towards the cleanup levels.
During the Remedial Design of the groundwater extraction and treatment system at the Property, EPA conducted a pump test on the extraction well at the Property. The well failed to produce an adequate yield of contaminated water to treat to significantly improve groundwater quality. As a result, EPA conducted additional testing to determine if adding a vapor extraction unit to the treatment system at the Property would increase contaminant removal and improve the performance of the OU3 selected remedy at the Property. Based on those results, EPA issued an Explanation of Significant Differences (ESD) on September 16, 2009, requiring implementation of a modified remedy at the Property which includes vapor extraction to enhance the performance of the remedy selected in the OU3 ROD. Testing also indicated that significant cost savings could be achieved by replacing the air stripper at the Property with a vessel containing granular activated carbon (GAC). Therefore, the ESD further allowed EPA to modify the OU3 remedy at the Property to allow for this form of treatment. The treatment system at the Property was built, and determined to be operational and functional in 2012. EPA plans on transferring the groundwater treatment system at the Property to PADEP for Operation and Maintenance (O&M) in 2022.
During the Remedial Design of the OU1 remedy to address contaminated soils at the Property, it was determined that the alternative selected in the OU1 ROD would not achieve the performance standards of the ROD; therefore, the backup remedy of excavation and off-site disposal was used to meet the performance standards. Approximately 861 cubic yards of contaminated soil were removed from the Property as part of the OU1 remedial action. EPA approved the OU1 remedial action report for the Property in 2001. No further actions to remediate the soil at the Property have been required.
During the Remedial Design of the OU3 remedy to address contaminated groundwater at the Property, it was determined that the alternative selected in the OU3 ROD would not treat enough contaminated water at the Property to significantly improve groundwater quality. As a result, EPA issued the ESD to require a modified remedy at the Property which includes vapor extraction and allows for the replacement of the air stripper with a vessel containing GAC to enhance the performance of the remedy selected in the OU3 ROD. EPA built the treatment system at the Property, and determined that it was operational and functional in 2012. EPA continues to operate and maintain the groundwater treatment system at the Property.
In the OU1 ROD, EPA selected a soil cleanup level of 131 μg/kg of trichloroethylene (TCE) to be protective of groundwater. To expedite backfilling of excavated areas at the Property, EPA conducted Quality Control sampling prior to excavation to delineate the extent of contamination, and eliminate the need to keep excavation areas open while additional sampling and analysis were being performed to determine if the performance standard (cleanup level) for soil in the OU1 ROD had been met. Thirty samples were collected at the Property and sent for analysis. The performance standard was exceeded at one location; therefore, additional samples were collected further out. As a result of the sampling, the boundary of excavation was extended out five feet to comply with the OU1 performance standard. After the excavation and off-site disposal of soils was completed, EPA certified the OU1 Remedial Action at the Property to be complete.
The OU3 remedy to address contaminated groundwater called for restoration of the aquifer to beneficial use as a potable use aquifer. The OU3 ROD set the groundwater cleanup level as the EPA Maximum Contaminant Level (MCL). The MCL for TCE is 5 ug/L. There are currently ten monitoring wells on or near the Property: ROG-1S, ROG-1D, ROG-2S, ROG-2I, ROG-3S, ROG-3I, ROG-4S, ROG-4I, ROG-5, and ROG-6, in addition to the extraction well TA-1. Currently, only two of the monitoring wells at the Property, ROG-3S and ROG-4S, show contamination above the MCL. Most monitoring wells at the Property have shown downward trends in contamination since the OU3 remedy was implemented. The monitoring wells located in the Administrative Parcel (ROG-1S, ROG1D, ROG-2S, and ROG-2I) have never exhibited contaminant concentrations in excess of the performance standard (cleanup level) for groundwater in the OU3 ROD and are considered to be upgradient from the current contaminated groundwater plume.
There are no O&M requirements and no institutional controls for OU1 at the Property. For OU3, EPA plans on transferring the groundwater treatment system at the Property to PADEP for O&M in 2022. There are no institutional controls for OU3 at the Property. The monitoring wells on the Administrative Parcel will continue to be sampled.
The selected remedial actions, upon completion, will not leave hazardous substances, pollutants, or contaminants on site above levels that allow for unlimited use and unrestricted exposure; however, the OU3 remedial action will require more than five years to complete. As a result, EPA will perform Five Year Reviews at the Site pursuant to Section 121(c) of CERCLA, 42 U.S.C. 9621(c), until the cleanup levels for groundwater in the OU3 ROD are achieved, allowing for unlimited use and unrestricted exposure. Five Year Reviews will be triggered by the date that construction is completed at the entire Site.
The owner of the Property performed additional investigations at the Property subsequent to EPA's investigations. In 2005, fifty soil borings were advanced throughout the Property. A soil sample was collected from each soil boring and analyzed for VOC contamination. No soil samples exceeded EPA's performance standards (cleanup levels) for soil in the OU1 ROD. Nine composite samples were also collected and analyzed for semi-volatile organic compounds (SVOCs), polychlorinated biphenyls (PCBs), pesticides, metals, and cyanide. SVOCs, PCBs, pesticides, and cyanide were not detected at elevated levels in these samples; however, arsenic was detected in three samples at levels that exceeded background and EPA Regional Screening Levels (RSLs). In 2006, the owner of the Property conducted additional sampling in the vicinity of the samples where the elevated levels of arsenic were found. Eighteen additional soil borings were advanced, and two soil samples were collected from each boring. Elevated levels of arsenic were detected in two soil borings. EPA conducted a more rigorous evaluation of the risks associated with the arsenic levels and determined that the risks associated with the concentrations are within EPA's acceptable risk range.
The owner of the Property also conducted sampling to evaluate the planned construction of a stormwater
The owner of the Property conducted additional sampling in 2016 on an approximately 3,000 cubic yard pile of top soil to be used as ground cover for the residential development. Twelve samples were collected from the pile and analyzed for metals. One sample was analyzed for hexavalent chromium. Metals concentrations were all found to be within EPA's acceptable risk range.
Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket on which EPA relied for recommendation of the deletion of the Administrative Parcel from the NPL are available to the public in the information repositories. The locations of the information repositories are set forth at the end of the Addresses section at the beginning of this notice.
EPA has determined based on the investigations conducted that all appropriate response actions under CERCLA have been implemented at the Administrative Parcel. The remedial action for OU1 removed contaminated soil from the Administrative Parcel. The implemented OU1 remedy for soils has achieved performance standards specified in the OU1 ROD at the Administrative Parcel. The four monitoring wells (ROG1S, ROG1D, ROG2S, and ROG2I) that are located within the Administrative Parcel have not shown significant detections of contaminants. These wells are also considered upgradient from the current contaminated groundwater plume. The implemented OU3 remedy for groundwater has achieved performance standards specified in the OU3 ROD at the Administrative Parcel and will continue to extract and treat contaminated groundwater at other portions of the Property. The selected remedial action objectives and associated cleanup levels for OU1 and OU3 at the Administrative Parcel are consistent with agency policy and guidance and have been achieved at the Administrative Parcel. No further Superfund response action for the Administrative Parcel is needed to protect human health and the environment. Other procedures for deletion required by 40 CFR 300.425(e) are detailed in Section III of this direct Final Notice of Partial Deletion of a portion of the Site.
The EPA, with concurrence of the Commonwealth of Pennsylvania, through the PADEP, has determined that all appropriate response actions under CERCLA, other than five-year reviews and monitoring, have been completed for the Administrative Parcel. Therefore, EPA is deleting the Administrative Parcel portion of the North Penn Area 6 Superfund Site from the NPL.
Because EPA considers this action noncontroversial and routine, EPA is taking it without prior publication. This action will be effective February 21, 2017 unless EPA receives adverse comments by January 23, 2017. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the partial deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process, as appropriate, on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For the reasons set out in this document, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR 1987 Comp., p. 193.
Environmental Protection Agency (EPA).
Final rule; technical correction.
EPA issued a final rule in the
This technical correction is effective January 17, 2017.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0207, is available at
The Agency included in the November 17, 2016 final rule a list of those who may be potentially affected by this action.
EPA issued a final rule in the
Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment. The SNUR at § 721.10949 contains the wrong CAS number associated with PMN P-15-614, and the SNUR at § 721.10958 contains the wrong name associated with PMN P-16-52 that was the basis for the SNUR. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
No. For a detailed discussion concerning the statutory and executive order review, refer to Unit XII. of the November 17, 2016 final rule.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Chemicals, Hazardous substances, Reporting and Recordkeeping requirements.
Therefore, 40 CFR part 721 is corrected as follows:
15 U.S.C. 2604, 2607, and 2625(c).
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; correction.
This document corrects technical and typographical errors that appeared in the final rule published in the
This correction is effective on January 1, 2017.
Julia Howard, (410) 786-8645, for issues related to DMEPOS CBP and bid surety bonds, state licensure, and the appeals process for breach of DMEPOS CBP contract actions. Stephanie Frilling, (410) 786-4507, for issues related to the ESRD QIP.
In FR Doc. 2016-26152 of November 4, 2016 (81 FR 77834) (hereinafter referred to as the CY 2017 ESRD PPS final rule) there are technical and typographical errors that are discussed in the “Summary of Errors,” and further identified and corrected in the “Correction of Errors” section below. The provisions in this correction notice are effective as if they had been included in the CY 2017 ESRD PPS final rule published in the
On page 77874, we inadvertently made technical errors with respect to the calculation of the performance standard values in Table 2, “Improvement of Performance Standards Over Time.”
On page 77886, we inadvertently made technical errors with respect to the calculation based on the most recently available data of the Achievement Threshold and Performance Standard values that apply to the Kt/V Composite, Standardized Transfusion Ratio and Hypercalcemia measures, and the calculation based on the most recently available data of the Achievement Threshold, Benchmark and Performance Standard values that apply to the ICH CAHPS measure in Table 6, “Finalized Numerical Values for the Performance Standards for the PY 2019 ESRD QIP Clinical Measures Using the Most Recently Available Data.” We also inadvertently included values for the Achievement Threshold, Benchmark and Performance Standard for the Standardized Hospitalization Ratio Clinical Measure, which is not a measure that we have adopted for the PY 2019 program.
On page 77897, we inadvertently included values for the Standardized Hospitalization Ratio Clinical Measure, which is not a finalized PY 2019 ESRD QIP measure, in Table 12, “PY 2020 Clinical Measure Including Facilities With at Least 11 Eligible Patients Per Measure.”
On page 77932 we made a technical error in our response to the first comment under “1. Bid Surety Bond Requirement”. In our response, we stated “While we acknowledge that there will be a number of entities that are required to make large expenditures in order to obtain a bid surety bond for each CBA in which they are submitting a bid, we anticipate that this revision on the bid surety bond amount from $100,000 to $50,000 will reduce that overall burden on all suppliers.” We inadvertently included the term “suppliers” at the end of the sentence but the term should read “bidders.”
On page 77933 in our response to the comment on why the bid surety bond was only required until January 1, 2019, we inadvertently included a “1” in the reference to the round of competition in 2019 in which the bid surety bond requirement commences. The reference should read “Round 2019” and not “Round 1 2019.”
At the top of page 77934 in our discussion on “Appeals Process for a DMEPOS Competitive Bidding Breach of Contract Action” we repeated a typographical error from the proposed rule (81 FR 42849) by stating that we proposed removing “§ 414.423(g)(2)(i)” from the regulation. The correct citation in this discussion should read “§ 414.422(g)(2)(i)”, consistent with the proposal to remove corrective action plan from the list of actions for a breach of contract in the regulation, as described in the preamble and regulation text of the proposed and final rules (81 FR 42849, 42878, and 81 FR 77934, 77967).
Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the
In our view, this correcting document does not constitute rulemaking that would be subject to these requirements. This correcting document is simply correcting technical errors in the preamble and does not make substantive changes to the policies or payment methodologies that were adopted in the final rule, and therefore, it is unnecessary to follow the notice and comment procedure in this instance.
Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the CY 2017 ESRD PPS final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for dialysis facilities to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2017 ESRD PPS final rule accurately reflects our policies as of the date they take effect and are applicable. Further, such procedures would be unnecessary, because we are not altering the payment methodologies or policies. For these reasons, we believe we have good cause to waive the notice and comment and effective date requirements.
In FR Doc. 2016-26152 of November 4, 2016 (81 FR 77834), we make the following corrections:
1. On page 77874, Table 2 is corrected to read as follows:
2. On page 77886, Table 6 is corrected to read as follows:
3. On page 77897, Table 12 is corrected to read as follows:
4. On page 77932, third column, line 17, the word “suppliers” is corrected to read as “bidders”.
5. On page 77933, first column, line 30, remove the number “1” before “2019”.
6. On page 77934, first column, line 3, the citation “§ 414.423(g)(2)(i)” is corrected to read “§ 414.422(g)(2)(i)”.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of determination.
This notice of determination provides the FRA Administrator's minimum annual random drug and alcohol testing rates for calendar year 2017.
Effective December 23, 2016.
Jerry Powers, FRA Drug and Alcohol Program Manager, W33-310, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone 202-493-6313); or Sam Noe, FRA Drug and Alcohol Program Specialist (telephone 615-719-2951).
For the next calendar year, FRA determines the minimum annual random drug testing rate and the minimum annual random alcohol testing rate for railroad employees covered by hours of service laws and regulations (covered service employees) based on the railroad industry data available for the two previous calendar years (for this Notice, calendar years 2014 and 2015). Railroad industry data submitted to FRA's Management Information System (MIS) shows the rail industry's random drug testing positive rate for covered service employees has continued to be below 1.0 percent for the applicable two calendar years. FRA's Administrator has therefore determined the minimum annual random drug testing rate for the period January 1, 2017, through December 31, 2017, will remain at 25 percent of covered service employees under § 219.602 of FRA's drug and alcohol rule (49 CFR part 219). In addition, because the industry-wide random alcohol testing violation rate for covered service employees has continued to be below 0.5 percent for the applicable two calendar years, the Administrator has determined the minimum random alcohol testing rate will remain at 10 percent of covered service employees for the period January 1, 2017, through December 31, 2017, under § 219.608. Because these rates represent minimums, railroads may conduct FRA random testing at higher rates.
In a June 10, 2016, final rule, FRA expanded the scope of part 219 to cover maintenance-of-way (MOW) employees (81 FR 37894). MOW employees will become subject to FRA random drug and alcohol testing on June 12, 2017, when the final rule takes effect. In 1994, when FRA, in concert with the other DOT modes, established a drug MIS system (58 FR 68232, December 23, 1993), FRA set its initial minimum random drug testing rate at 50 percent for covered employees because of the lack of data to gauge the extent of the drug abuse problem at that time. FRA set its minimum random alcohol testing rate for covered employees at 25 percent for the same reason. As its MIS data continued to show consistently low industry-wide drug and alcohol positive rates among covered employees, FRA lowered its minimum annual random drug and alcohol testing rates to their current respective rates of 25 and 10 percent.
Similarly, because FRA has no MIS data for MOW employees yet, the Administrator has determined that for the period June 12, 2017, through December 31, 2017, the minimum annual random drug testing rate will be set at 50 percent of MOW employees, and the minimum annual random alcohol testing rate will be set at 25 percent of MOW employees. As with covered employees, because these rates represent minimums, railroads may conduct FRA random testing of MOW employees at higher rates.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
This rule increases the rail equipment accident/incident monetary reporting threshold (reporting threshold) from $10,500 to $10,700 for railroad accidents/incidents involving property damage that occur during calendar year (CY) 2017 that FRA's accident/incident reporting regulations require railroads to report to the agency. This action is needed to ensure FRA's reporting requirements reflect cost increases that have occurred since FRA last published the reporting threshold in December 2015.
This final rule is effective January 1, 2017.
Kebo Chen, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room W33-314, 1200 New Jersey Ave. SE., Washington, DC 20590 (telephone 202-493-6079); or Gahan Christenson, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-124, 1200 New Jersey Ave. SE., Washington, DC 20590 (telephone 202-493-1381).
A “rail equipment accident/incident” is a collision, derailment, fire, explosion, act of God, or other event involving the operation of railroad on-track equipment (standing or moving) that results in damages to railroad on-track equipment, signals, tracks, track structures, or roadbed, including labor costs and the costs for acquiring new equipment and material, greater than the reporting threshold for the year in which the event occurs. 49 CFR 225.19(c). A railroad must report each rail equipment accident/incident to FRA using the Rail Equipment Accident/Incident Report (Form FRA F 6180.54).
In addition to periodically reviewing and adjusting the reporting threshold under Appendix B, FRA periodically amends its method for calculating the threshold. In 49 U.S.C. 20901(b), Congress requires that FRA base the reporting threshold on publicly available information obtained from the Bureau of Labor Statistics (BLS), other objective government source, or be subject to notice and comment. In 1996, FRA adopted a new method for calculating the reporting threshold for rail equipment accidents/incidents.
Approximately one year has passed since FRA reviewed the reporting threshold.
In this rule, FRA has recalculated the reporting threshold based on the formula discussed in detail and adopted, after notice and comment, in the final rule published December 20, 2005.
FRA regularly reviews and recalculates the reporting threshold using the formula published in Appendix B near the end of each CY. Therefore, any person affected by this rule should anticipate the on-going adjustment of the reporting threshold and has reasonable time to make any minor changes necessary to come into compliance with the reporting requirements. FRA attempts to use the most recent data available to calculate the updated reporting threshold prior to the next CY. FRA has found that issuing the rule no later than December of each CY and making the rule effective on January 1, of the next year, allows FRA to use the most up-to-date data when calculating the reporting threshold and to compile data that accurately reflects rising wages and equipment costs. As such, FRA finds that it has good cause to make this final rule effective January 1, 2017.
FRA evaluated this final rule under existing policies and procedures and determined it is non-significant under both Executive Orders 12866 and 13563, and DOT policies and procedures.
FRA developed this rule under Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601
The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities, unless the Secretary certifies the rule will not have a significant economic impact on a substantial number of small entities. Under Section 312 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), Federal agencies may adopt their own size standards for small entities in consultation with SBA and in consultation with public comment. Under that authority, FRA has published a final statement of agency policy formally establishing for FRA's regulatory purposes “small entities” as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1 ($20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less).
About 743 of the approximately 792 railroads in the United States are considered small entities by FRA. FRA certifies that this final rule will have no significant economic impact on a substantial number of small entities. To the extent that this rule has any impact on small entities, the impact will be neutral or insignificant. The frequency of rail equipment accidents/incidents, and therefore also the frequency of required reporting, is generally proportional to the size of the railroad. A railroad employing thousands of employees and operating trains millions of miles is exposed to greater risks than one whose operation is substantially smaller. Small railroads may go for months at a time without having a reportable occurrence of any type, and even longer without having a rail equipment accident/incident. For example, FRA data indicate railroads reported 2,029 rail equipment accidents/incidents in 2011, with small railroads reporting 276 of them. Data for 2012 show railroads reported 1,765 rail equipment accidents/incidents, with small railroads reporting 254 of them. Data for 2013 show that 1,849 rail equipment accidents/incidents were reported, with small railroads reporting 271 of them. In 2014, 1,870 rail equipment accidents/incidents were reported, and small railroads reported 230 of them. In 2015, 1,912 rail equipment accidents/incidents were reported, with small railroads reporting 253 of them. On average over those five calendar years, small railroads reported about 14% (ranging from 12% to 15%) of the total number of rail equipment accidents/incidents. FRA notes that these data are accurate as of the date of issuance of this final rule, and are subject to minor changes due to additional reporting. Absent this rulemaking (
Furthermore, FRA has determined the RFA does not apply to this rulemaking. Given this rule merely updates the reporting threshold for CY 2017 using the formula developed through notice and comment rulemaking and published in Appendix B, FRA finds notice and public comment is unnecessary and would serve no public benefit. The Small Business Administration's
If, under the APA or any rule of general applicability governing federal grants to state and local governments, the agency is required to publish a general notice of proposed rulemaking (NPRM), the RFA must be considered [citing 5 U.S.C. 604(a)] . . . . If an NPRM is not required, the RFA does not apply.
There are no new or additional information collection requirements associated with this final rule. FRA's collection of accident/incident reporting and recordkeeping information is currently approved under OMB No. 2130-0500. Therefore, FRA is not required to provide an estimate of a public reporting burden in this document.
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults
FRA analyzed this final rule under the principles and criteria in Executive Order 13132. This rule will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and the responsibilities among the various levels of government, as specified in Executive Order 13132. In addition, FRA determined this rule does not impose substantial direct compliance costs on State and local governments. Accordingly, FRA concluded the consultation and funding requirements of Executive Order 13132 do not apply and preparation of a federalism assessment is not required.
FRA evaluated this final rule under its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
(c) Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment. . . . The following classes of FRA actions are categorically excluded: . . . (20) Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation.
Consistent with section 4(c)(20) of FRA's Procedures, FRA concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds this rule is not a major Federal action significantly affecting the quality of the human environment.
Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in the expenditure of more than $156,000,000 by the public sector in any one year. Thus, preparation of such a statement is not required.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (91 FR 27534, May 10, 2012) require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate. FRA evaluated this final rule under Executive Order 12898 and the DOT Order and determined it would not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.
FRA evaluated this final rule under the principles and criteria in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated November 6, 2000. This final rule will not have a substantial direct effect on one or more Indian tribes, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal laws. Therefore, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.
The Trade Agreements Act of 1979 (19 U.S.C. 2501
Interested parties should be aware that anyone can search the electronic form of all written comments received
Investigations, Penalties, Railroad safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, FRA amends part 225 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:
49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
(e) The reporting threshold is $6,700 for calendar years 2002 through 2005, $7,700 for calendar year 2006, $8,200 for calendar year 2007, $8,500 for calendar year 2008, $8,900 for calendar year 2009, $9,200 for calendar year 2010, $9,400 for calendar year 2011, $9,500 for calendar year 2012, $9,900 for calendar year 2013, $10,500 for calendar year 2014, $10,500 for calendar year 2015, $10,500 for calendar year 2016, and $10,700 for calendar year 2017. The procedure for determining the reporting threshold for calendar years 2006 and beyond appears as paragraphs 1-8 of appendix B to part 225.
Fish and Wildlife Service, Interior.
Adoption of interim rule as final rule.
The U.S. Fish and Wildlife Service (Service or we) is adopting, as a final rule, without change, an interim rule that revised our civil procedure regulations and increased civil monetary penalties for inflation.
Effective on December 23, 2016.
Paul Beiriger, Special Agent in Charge, Branch of Investigations, U.S. Fish and Wildlife Service, Office of Law Enforcement, (703) 358-1949.
The regulations at 50 CFR part 11 provide uniform rules and procedures for the assessment of civil penalties resulting from violations of certain laws and regulations enforced by the Service.
On June 28, 2016, the Service published in the
The interim rule became effective on July 28, 2016. We accepted public comments for 60 days on the interim rule, ending August 29, 2016. By that date, we did not receive any comments on the interim rule. Therefore, we are affirming the interim rule as a final rule, without change.
The interim rule is available at
Administrative practice and procedure, Exports, Fish, Imports, Penalties, Plants, Transportation, Wildlife.
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment draft regulatory guide (DG), DG-1334, “Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments.' ” This draft regulatory guide provides licensees and applicants with a method that the staff of the NRC considers acceptable for use in complying with the Commission's regulations on the process by which licensees may make changes to their facilities and procedures, as described in the safety analysis report, without prior NRC approval, under certain conditions.
Submit comments by February 21, 2017. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specified subject):
Brian Harris, Office of Nuclear Reactor Regulation, telephone: 301-415-2277; email:
Please refer to Docket ID NRC-2016-0270 when contacting the NRC about the availability of information regarding this action. You may obtain publically-available information related to this action, by any of the following methods:
Please include Docket ID NRC-2016-0270 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 posts 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 NRC is issuing for public comment a draft regulatory guide (DG-1334) in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public information regarding methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific issues or postulated events, and data that the staff needs in its review of applications for permits and licenses.
The draft regulatory guide, entitled, “Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments.' ” is a proposed revision temporarily identified by its task number, DG-1334. DG-1334 is proposed revision 1 of RG 1.187, “Guidance for Implementation of 10 CFR 50.59, `Changes, Tests, and Experiments.' ” The draft regulatory guide provides licensees and applicants with a method that the NRC staff considers acceptable for use in complying with the Commission's regulations on the process by which licensees may make changes to their facilities and procedures as described in
This draft regulatory guide clarifies potentially unclear statements in Section 4.3.8 of Nuclear Energy Institute document 96-07, Revision 1, “Guidelines for 10 CFR 50.59 Implementation,” (ADAMS Accession number ML003771157) which was endorsed in RG 1.187, Rev 0, (ADAMS Accession number ML003759710) as acceptable guidance for how to comply with NRC regulations in section 50.59 of title 10 of the
The draft regulatory guide also adds clarification to statements in Section 4.3.5 of NEI 96-07, Revision 1, whereby licensees may misinterpret the last sentence in the second paragraph in Section 4.3.5 if considered in isolation of the statements earlier discussed in the paragraph.
Draft regulatory guide DG-1334, if finalized as Regulatory Guide 1.187, Revision 1, would provide guidance on acceptable ways of determining whether licensees may make changes to their facilities and procedures as described in the safety analysis report, without prior NRC approval, under the change process established in 10 CFR 50.59. The draft regulatory guide, if finalized, would not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) and is not otherwise inconsistent with the issue finality provisions in 10 CFR part 52, “Licenses, Certifications and Approvals for Nuclear Power Plants.” The subject of this draft regulatory guide, as described above, is an NRC-defined process which does not fall within the purview of subjects covered by either the Backfit Rule or the issue finality provision in 10 CFR part 52. Issuance of the draft regulatory guide, in final form, would not constitute backfitting, and no further consideration of backfitting is required in order to issue the draft or final regulatory guide in final form.
For the Nuclear Regulatory Commission.
Board of Governors of the Federal Reserve System (Board).
Notice of proposed rulemaking; extension of comment period.
On September 30, 2016, the Board published in the
Due to the range and complexity of the issues addressed in the NPR, the public comment period has been extended until February 20, 2017. This action will allow interested persons additional time to analyze the proposal and prepare their comments.
The comment period for the notice of proposed rulemaking published on September 23, 2016, (81 FR 67220) regarding risk-based capital and other regulatory requirements for activities of financial holding companies related to physical commodities and risk-based capital requirements for merchant banking investments is extended from December 22, 2016 to February 20, 2017.
You may submit comments by any of the methods identified in the NPR.
Constance M. Horsley, Assistant Director, (202) 452-5239, Elizabeth MacDonald, Manager, (202) 475-6316, Kevin Tran, Supervisory Financial Analyst, (202) 452-2309, or Vanessa Davis, Supervisory Financial Analyst, (202) 475-6674, Division of Banking Supervision and Regulation; or Laurie Schaffer, Associate General Counsel, (202) 452-2277, Michael Waldron, Special Counsel, (202) 452-2798, Will Giles, Senior Counsel, (202) 452-3351, or Mary Watkins, Attorney, (202) 452-3722, Legal Division, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551. For the hearing impaired only, Telecommunication Device for the Deaf (TDD), (202) 263-4869.
On September 30, 2016, the Board published in the
The Board has received comment letters requesting that the Board extend the comment period for the NPR.
Due to the range and complexity of the issues addressed in the NPR, the public comment period has been
Federal Aviation Administration (FAA), DOT.
Advance notice of proposed rulemaking (ANPRM); withdrawal.
The FAA is withdrawing a previously published advance notice of proposed rulemaking that sought public comment from interested persons involving glider operations in the National Airspace System. The action responded to recommendations from members of Congress and the National Transportation Safety Board and was intended to gather information to determine whether the current glider exception from transponder equipage and use provides the appropriate level of safety in the National Airspace System. The FAA is withdrawing that action because the limited safety benefit gained does not justify the high cost of equipage.
This action becomes effective December 23, 2016.
For technical questions concerning this action, contact Patrick J. Moorman, Airspace Regulations Team, AJV-113, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8783; email:
On August 28, 2006, a Hawker 800XP aircraft
On March 31, 2008, the National Transportation Safety Board (NTSB) provided safety recommendations to the FAA resulting from an investigation of the accident.
On June 16, 2015, the FAA published an Advance Notice of Proposed Rulemaking (ANPRM) to respond to recommendations from two members of Congress
Based on the information gathered from the ANPRM and a review of the current operating environment, the FAA finds that it does not have sufficient basis to move forward with rulemaking at this time. While the FAA has determined it is not warranted to move forward with a proposal to remove the glider exception in § 91.215, the FAA will continue to work with local glider communities to increase safety awareness. The FAA will also continue to consider surveillance system alternatives and to work with interested persons to mitigate the risk of aircraft collision with gliders. Further, the FAA recommends that all glider aircraft owners equip their gliders with a transponder meeting regulatory requirements, a rule-compliant ADS-B Out system, or a TABS device.
The FAA received 231comments in response to its ANPRM. Of the 231 comments received, approximately 18 organizations and 213 individual or anonymous commenters responded. Approximately 161 comments were unfavorable (adverse), 52 comments were favorable, and 18 comments were
The following organizations responded: Soaring Society of America (SSA), Aircraft Owners and Pilots Association (AOPA), Vintage Sailplane Association (VSA), Experimental Aircraft Association (EAA), Civil Air Patrol (CAP), National Transportation Safety Board (NTSB), American Association for Justice (AAJ), and approximately 11 local soaring clubs or groups. Individual and anonymous commenters were representative of all pilot types: glider, general aviation (GA), airline and military, many commenters holding multiple ratings, with glider and general aviation pilots representing the majority.
Individual and anonymous commenters in favor of removing the transponder exception were primarily concerned about safety, some relaying personal experiences not accompanied by supporting documentation, such as a near mid-air collision (NMAC) report.
All comments are available for viewing in the rulemaking docket (FAA-2015-2147). To view comments, go to
Of the approximately 161 unfavorable (adverse) comments received, many addressed the high cost of transponder equipage and the limited safety benefit by requiring such equipage.
During the ANPRM process, the FAA also reviewed glider midair and NMAC reports at the local and national level. After further analysis of safety related statistics, the FAA found that nationally, from August 2005 through August 2015, the Aviation Safety Reporting System (ASRS) database reflects 1,841 reported NMAC for all airspace areas. Of these NMACs, 50 involve a glider and another aircraft type, or 2.72% of reported NMACs over a 10-year period for an average of 5NMACs per year. In 2008, the last year data was available for all aircraft categories, statistics show there were 236,519 active aircraft, including 1,914 gliders, or about 0.81% of the active fleet.
Nationally, the removal of the glider exception from § 91.215 would help to prevent those instances where a glider NMAC occurs with an aircraft equipped with a Traffic Alert and Collision Avoidance System (TCAS).
Assuming all of these NMACs would occur between gliders and air carrier aircraft,
Therefore, based on the nationwide rate of occurrence, safety risk data does not support a rule requiring glider operators to install a transponder device at this time. Furthermore, the number of gliders voluntarily equipping with collision avoidance systems has increased steadily. Per the General Aviation and Part 135 Activity Surveys, the number of gliders equipped with a transponder device has gone from 14% in 2006, to 24.3% in 2014, the last year this data was available.
Locally in the airspace surrounding Reno, Nevada, the NTSB noted four TCAS Resolution Advisory (RA) events in the 30 days prior to the accident, each between a glider and a TCAS-equipped transport category aircraft operated under 14 CFR part 121.
Although this data supports the value of transponders in avoiding collisions, since the accident, the FAA and local glider community have also taken several measures to mitigate the risk of midair collisions within and around Reno, NV. First, advisory information on the heavy glider activity unique to the local area was published in official FAA flight information publications including the Chart Supplement, Special Notices, and Standard Terminal Arrival Routes (STARs) for Reno/Tahoe International Airport after the event. Second, on October 29, 2010, a Letter of Agreement (LOA) was signed between representatives for the local glider
Finally, the local glider community has undertaken a successful education campaign to prevent further accidents. According to the SSA, “Since the 2006 accident, the local glider community that flies near RNO has undertaken successfully to educate pilots on collision avoidance and to encourage the voluntary use of either FLARM or transponders. As a result of these voluntary efforts, the official ASRS database includes no new incidents with gliders not equipped with transponders in the RNO or MEV [Minden-Tahoe Airport] areas in [excepted] airspace since the release some 7 years ago of the NTSB report on the 2006 incident.”
The SSA, EAA, and several individual commenters opposing transponder equipage, noted that the glider involved in the 2006 Reno accident was equipped with a transponder, but at the time of the accident, the pilot operated the glider with the transponder turned off.
Approximately 138 commenters discussed the cost of requiring gliders to equip with transponders.
Three commenters stated that transponders were inexpensive, but as shown below these commenters underestimated the cost of glider transponders as “in the few hundred dollar range” or “less than $2000” and/or ignored the cost of installation or assumed installation was easy. They did not address the concern that about half the glider population does not have an electrical system, which significantly increases the cost of transponder installation. These commenters were contradicted by more than 30 commenters who provided specific cost estimates for glider transponders and installation costs. Another commenter, in favor of removing the glider exception because he believed that the safety benefits justified the costs, conceded that transponders “are indeed costly.”
The FAA estimates the cost of requiring gliders to equip with transponders to be about $5,000 per glider and more than $7 million for the glider fleet. Owing to a lack of reliable data, the glider (and fleet) cost estimates do not take into account the possible significant cost of instrument panel modification. There may also be significant additional cost for older gliders that no longer have manufacturer support because they may require a FAA Form 337 (Major Repair and Alteration) approval if there is no prior approval (Supplemental Type Certificate (STC) or other previously approved installation).
The fleet estimate assumes that (1) all active glider operators will want to operate in the currently excepted airspace and (2) the 990 inactive gliders (total glider population of 2781—1791 active gliders) in the fleet will deregister upon rule implementation.
The nonrecurring and recurring unit costs required to estimate the cost of a rule change eliminating the glider transponder exception are shown in Table 1.
The FAA estimates the costs of such a rule change over a ten-year period for the existing U.S. glider fleet. This estimation is shown in Table 2.
Based on the risk reduction data discussed in the previous section and the estimated costs of equipage listed in this section, the FAA finds that the degree of risk reduction that could be expected by requiring transponder equipage for gliders does not justify the cost of requiring such equipage.
Several commenters called for “low cost” and “affordable” transponders (such as a portable transponder) and ADS-B, TABS, or FLARM equipment. The NTSB noted the FAA published a final rule on May 28, 2010, that added requirements for ADS-B Out equipage that, if combined with transponder usage, would result in increased traffic awareness and collision avoidance. The NTSB also commented in response to this ANPRM that TABS may be an acceptable alternative as it is detectable by both TCAS and ADS-B-In equipped aircraft.
Since the 2006 accident, technologies have developed and alternatives are available that have the potential to mitigate risk, such as TABS, FLARM, ADS-B, local LOA with ATC facilities, and ongoing outreach and education. Of the technological solutions identified here, the ones that offer the best potential to avoid collision with TCAS-equipped aircraft (besides transponder equipage) are TABS or a rule-compliant ADS-B Out system, because those systems make the glider visible to TCAS-equipped aircraft, ATC or both.
The TABS standard provides for a reduction in the transmission rate and allows for a “non-aviation grade” GPS engine, in order to drive unit cost down while still maintaining an acceptable level of service to be considered a client in the NAS, where collision avoidance and ADS-B systems coexist. There are currently no TSO authorization holders for TABS equipment. However, we are aware that certain manufacturers currently have TABS systems in development.
Some commenters recommended that the FAA allow use of portable
Other commenters recommended that the FAA encourage equipage of FLARM systems. In this regard, the FAA notes that a variant of FLARM, known as PowerFLARM, will make a transponder or ADS-B Out equipped aircraft detectable to the PowerFLARM-equipped aircraft (such as a glider). However, a glider that is equipped with any version of FLARM will not be electronically detectable to the other aircraft unless both aircraft are FLARM equipped. In view of these factors, the FAA concludes that FLARM systems may provide a safety benefit (particularly for avoidance of collisions between gliders, and for PowerFLARM equipped gliders, some benefit for avoidance of collisions with powered aircraft). However, the FAA does not view FLARM (including PowerFLARM) as the most effective system to support collision avoidance with powered aircraft since a FLARM system may not make the glider detectable to the aircraft that must give way. Transponders, TABS, and ADS-B Out offer better protection against collisions with powered aircraft because those systems aid visual acquisition of the glider by the powered aircraft flightcrew, consistent with right of way rules.
The FAA will continue to consider surveillance system alternatives for gliders for their feasibility and potential to improve safety.
Several commenters were in favor of removing the current glider exception for certain high-density airspace areas. One commenter, otherwise strongly in favor of removing the glider exception, suggested an exception for gliders involved in training below 5,000 feet above ground level (AGL). The FAA has determined not to propose any changes to the rules for specific airspace areas because the accident and incident history cited in the NTSB recommendation has occurred predominantly around one specific airspace area, Reno, NV. The FAA has determined that the post accident mitigations for the Reno area discussed previously in this notice mitigate the risk for that specific airspace.
Another commenter stated, “the FAA should make clear that installing a transponder, encoder, antenna, an extra battery or batteries and possible solar panels are all considered `minor modifications' which can be signed off by the installing technician based on his judgment.” This commenter and several others, in opposition of the removal of the glider exception, also called for exceptions for older gliders. The FAA finds that rulemaking is not necessary at this time for any gliders, but points to current guidance available to assist in installation and approval of transponder systems in gliders and sailplanes for operators wishing to voluntarily equip.
The AAJ listed glider color, construction materials, and slender profiles as contributing factors to lack of pilot visibility or radar detection and further identified Instrument Flight Rule congested areas as concerns of undeniable risk, especially the parameters of Class B airspace. These sentiments were largely shared amongst both adverse and favorable commenters, offering similar solutions or variations thereof. The FAA has discussed its determination regarding specific airspace areas above. With regard to the other comments identified here, the FAA's decision in this notice includes consideration of those comments.
After consideration of all comments received, the FAA is withdrawing Notice No. 15-05. The FAA finds that the high cost of transponder equipage and the limited safety benefit that is likely to result from requiring such equipage do not support rulemaking at this time. Additionally, as discussed above, the FAA has determined that a proposal to require gliders to equip with “low-cost” alternatives to transponders is not supportable at this time.
NTSB safety recommendations, resulting from the 2006 midair collision with a glider, indicated that although the glider was equipped with a transponder, the transponder was turned off. After further analysis of safety-related statistics over a 10-year period (August 2005-August 2015) the ASRS database reflects 1841 reported NMAC for all airspace areas. The FAA found data that indicates that removal of the glider exception from § 91.215 would have the potential to reduce the NMAC occurrences by about 0.70 occurrences per year, or about 2 NMACs every 3 years (0.38% of all reported NMACs per year over that period).
When further testing, research, and conclusive data is available that reflect alternative mitigations, a broader, more harmonized proposal may better serve the public interest. Withdrawal of Notice No. 15-05 does not preclude the FAA from issuing another notice on the subject matter in the future or committing the agency to any future course of action. The agency will make any necessary changes to the regulations through a notice of proposed rulemaking (NPRM) with the opportunity for public comment.
Although the FAA has determined that a regulatory course of action is not warranted at this time, the FAA will continue to work with local glider communities, encourage the voluntary equipage of transponders in gliders and encourage the use of TABS. The FAA continues to recommend that all glider aircraft owners equip their gliders with a transponder meeting the requirements of § 91.215(a), a rule-compliant ADS-B Out system, or a TABS device. In consideration of the above factors, the FAA withdraws Notice No.
Environmental Protection Agency (EPA).
The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submittal from the State of West Virginia pursuant to the Clean Air Act (CAA). Whenever new or revised
Written comments must be received on or before January 23, 2017.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0373 at
Ellen Schmitt, (215) 814-5787, or by email at
On November 17, 2015, the State of West Virginia through the West Virginia Department of Environmental Protection (WVDEP) submitted a revision to its SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2012 PM
On July 18, 1997, EPA promulgated a new 24-hour and a new annual NAAQS for PM
Pursuant to section 110(a)(1) of the CAA, states are required to submit SIP submissions meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP submission for a new or revised NAAQS affect the content of the submission. The content of such SIP submission may also vary depending upon what provisions the state's existing SIP already contains.
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIP submissions. Section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. As mentioned earlier, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS.
On November 17, 2015, West Virginia provided a submittal to satisfy section 110(a)(2) requirements of the CAA for the 2012 PM
At this time, EPA is not proposing action on section 110(a)(2)(D)(i)(I) regarding the interstate transport of emissions, nor is the Agency proposing action on section 110(a)(2)(D)(i)(II) relating to visibility protection. EPA intends to take later separate action on these portions of West Virginia's submittal.
EPA is proposing to approve the following elements or portions thereof of West Virginia's November 17, 2015 SIP revision: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA. West Virginia's SIP revision provides the basic program elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2012 PM
EPA will take later separate action on section (D)(i)(I) (interstate transport of emissions) and on section (D)(i)(II) (visibility protection) for the 2012 PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, pertaining to West Virginia's section 110(a)(2) infrastructure requirements for the 2012 PM
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
On July 18, 2016, the State of Georgia, through the Georgia Environmental Protection Division (GA EPD) of the Department of Natural Resources, submitted a request for the Environmental Protection Agency (EPA) to redesignate the Atlanta, Georgia 2008 8-hour ozone nonattainment area (hereafter referred to as the “Atlanta Area” or “Area”) to attainment for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the Area. EPA is proposing to approve the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO
Comments must be received on or before January 23, 2017.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0583 at
Jane Spann, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Spann can be reached by phone at (404) 562-9029 or via electronic mail at
EPA is proposing to take the following separate but related actions: (1) To approve Georgia's plan for maintaining the 2008 8-hour ozone NAAQS (maintenance plan), including the associated MVEBs for the Atlanta Area, and incorporate it into the SIP, and (2) to redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy
EPA is proposing to approve Georgia's maintenance plan for the Atlanta Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status) and incorporate it into the SIP. The maintenance plan is designed to keep the Atlanta Area in attainment of the 2008 8-hour ozone NAAQS through 2030. The maintenance plan includes 2014 and 2030 MVEBs for NO
EPA also proposes to determine that the Atlanta Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding and Rockdale Counties in Georgia, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS.
EPA is also notifying the public of the status of EPA's adequacy process MVEBs for the Atlanta Area. The Adequacy comment period began on September 2, 2016, with EPA's posting of the availability of Georgia's submissions on EPA's Adequacy Web site (
In summary, this notice of proposed rulemaking is in response to Georgia's July 18, 2016, redesignation request and associated SIP submission that address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS.
On March 12, 2008, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 parts per million (ppm) to provide increased protection of public health and the environment.
Effective July 20, 2012, EPA designated any area that was violating the 2008 8-hour ozone NAAQS based on the three most recent years (2008-2010) of air monitoring data as a nonattainment area.
On July 14, 2016, EPA determined that the Atlanta Area attained the 2008 8-hour ozone NAAQS based on complete, quality-assured, and certified ozone monitoring data from monitoring stations in the Atlanta Area for the 2008 8-hour ozone NAAQS for 2013 through 2015.
An attainment determination is not equivalent to a redesignation under section 107(d)(3) of the CAA. Additionally, the determination of attainment is separate from, and does not influence or otherwise affect, any future designation determination or requirements for the Atlanta Area based on any new or revised ozone NAAQS, and the determination of attainment remains in effect regardless of whether EPA designates this Area as a nonattainment area for purposes of any new or revised ozone NAAQS.
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.
On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
1. “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill
2. “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
3. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;
4. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereinafter referred to as the “Calcagni Memorandum”);
5. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;
6. “Technical Support Documents (TSDs) for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
7. “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993 (hereinafter referred to as the “Shapiro Memorandum”);
8. “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993;
9. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994 (hereinafter referred to as the “Nichols Memorandum”); and
10. “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.
On July 18, 2016, Georgia requested that EPA redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS and approve the associated SIP revision submitted on the same date containing a maintenance plan for the Area. EPA's evaluation indicates that the Atlanta Area meets the requirements for redesignation as set forth in CAA section 107(d)(3)(E), including the maintenance plan requirements under CAA section 175A and associated MVEBs. As a result of these proposed findings, EPA is proposing to take the actions summarized in section I of this notice.
As stated above, in accordance with the CAA, EPA proposes to approve the 2008 8-hour ozone NAAQS maintenance plan, including the associated MVEBs, and incorporate it into the Georgia SIP; and redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS.
On July 14, 2016, EPA determined that the Atlanta Area attained the 2008 8-hour ozone NAAQS.
The 3-year design value for 2013-2015 for the Atlanta Area is 0.073 ppm,
For this proposed action, EPA has reviewed 2016 preliminary monitoring data for the Area and proposes to find that the preliminary data does not indicate a violation of the NAAQS.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Georgia has met all applicable SIP requirements for the Atlanta Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that Georgia has met all applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v) and proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were due prior to submittal of the complete redesignation request.
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.
In addition, EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (
Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a state's submittal of a complete redesignation request.
Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC reasonably available control technology (RACT) rules that were required under section 172(b)(3) of the CAA (and related guidance) prior to the 1990 CAA amendments. The Area is not subject to the section 182(a)(2) RACT “fix up” requirement for the 2008 ozone NAAQS because it was designated as nonattainment for this standard after the enactment of the 1990 CAA amendments. Furthermore, the State complied with this requirement under the 1-hour ozone NAAQS.
Section 182(a)(2)(B) requires each state with a marginal or higher ozone nonattainment area classification that implemented, or was required to implement, an inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision providing for an I/M program no less stringent than that required prior to the 1990 amendments or already in the SIP at the time of the amendments, whichever is more stringent. The Atlanta Area is not subject to the section 182(a)(2)(B) requirement because the Area was designated as nonattainment for the 2008 8-hour ozone standard after the enactment of the 1990 CAA amendments. As discussed below in the section addressing section 182(b) requirements, Georgia has an I/M program that meets its past I/M obligations under section 182(c)(3) for its severe classification under the 1990 1-hour ozone NAAQS.
Regarding the permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), Georgia currently has a fully approved part D NSR program in place. However, EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR, because PSD requirements will apply after redesignation. A more detailed rationale for this view is described in the Nichols Memorandum. Georgia's PSD program will become applicable in the Atlanta Area upon redesignation to attainment.
Section 182(a)(3) requires states to submit periodic inventories and emissions statements. Section 182(a)(3)(A) requires states to submit a periodic inventory every three years. As discussed below in the section of this notice titled
The RFP plan requirements under section 182(b)(1) are defined as progress that must be made toward attainment for the 2008 8-hour ozone NAAQS. These requirements are not relevant for purposes of redesignation because EPA has determined that the Atlanta Area attained of the 2008 8-hour ozone NAAQS.
Section 182(b)(2) of the CAA requires states with areas designated as moderate (or higher) nonattainment areas for the ozone NAAQS to submit a SIP revision to require RACT for all major VOC and NO
The section 182(b)(3) gasoline vapor recovery requirements once applied in all moderate (and higher) ozone nonattainment areas. However, under section 202(a)(6) of the CAA the requirements of section 182(b)(3) no longer apply in moderate ozone nonattainment areas because EPA promulgated onboard refueling vapor recovery standards on April 6, 1994.
Section 182(b)(4) of the CAA requires states with areas designated as moderate (or higher) nonattainment for the ozone NAAQS to submit SIPs requiring inspection and maintenance of vehicles (I/M). In 1991, EPA classified a 13-county area in and around the Atlanta, Georgia, metropolitan area as a serious ozone nonattainment area for the 1990 1-hour ozone NAAQS, triggering the requirement for the State to establish an enhanced I/M program for this 13-county area.
Section 182(b)(5) of the CAA requires that for purposes of satisfying the general emission offset requirement, the ratio of total emission reductions to total increase emissions shall be at least 1.15 to 1. Georgia currently requires these
EPA interprets the conformity SIP requirements
Thus, for the reasons discussed above, EPA proposes that the Atlanta Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.
EPA has fully approved the applicable Georgia SIP for the Atlanta Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (
As discussed above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions, nor linked to an area's nonattainment status, are not applicable requirements for purposes of redesignation and believes that Georgia has met all part D requirements applicable for purposes of this redesignation.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable federal air pollution control regulations, and other permanent and enforceable reductions.
State measures adopted into the SIP and federal measures enacted in recent years have resulted in permanent emission reductions. The SIP-approved state measures, some of which implement federal requirements, that have been implemented to date and identified by Georgia include: Georgia Rule 391-3-1-.02(2)(yy)—Emissions of Nitrogen Oxides; Georgia Rule 391-3-1-.02(2)(jjj)—NO
Georgia Rule 391-3-1-.02(2) contains provisions that target emission reductions necessary for ozone reduction. Those provisions that are approved into the federally-approved SIP and are therefore federally enforceable include:
Rule 391-3-1-.02(2)(yy)—this rule requires a case-by-case RACT determination for sources of NO
Rule 391-3-1-.02(2)(jjj)—this rule regulates NO
Rule 391-3-1-.02(2)(lll)—this rule applies to fuel-burning equipment with maximum design heat input capacities greater than or equal to 10 million British Thermal Units per hour (MMBtu/hr) and less than or equal to 250 MMBtu/hr in 45 counties, including the counties in the Atlanta Area. It established a compliance date for the ozone standard beginning on May 1, 2000, and it affects all fuel burning equipment installed from that date forward. This rule also affects future possible emissions for new or modified sources by requiring the operation of equipment during the control season to meet emission limits based on the use of natural gas.
Rule 391-3-1-.02(2)(nnn)—this rule establishes ozone season NO
Rule 391-3-1-.02(2)(rrr)—this is a RACT rule for small fuel-burning equipment. It requires that, in order to reduce NO
Rule Chapter 391-3-20—Enhanced Inspection and Maintenance (Vehicle Emissions I/M Program)—As discussed above, EPA fully approved the State's enhanced I/M program and adopted it into the SIP in January 2000.
Federal measures enacted in recent years have also resulted in permanent emission reductions in the Atlanta Area. The federal measures that have been implemented include the following:
Numerous parties filed petitions for review of CSAPR, and on August 21, 2012, the D.C. Circuit vacated and remanded CSAPR to EPA.
On September 17, 2016, EPA finalized an update to the CSAPR ozone season program.
EPA proposes to find that the improvements in air quality in the Atlanta Area are due to real, permanent and enforceable reductions in NO
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Atlanta Area to attainment for the 2008 8-hour ozone NAAQS, Georgia submitted a SIP revision to provide for the maintenance of the 2008 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA has made the preliminary determination that this maintenance plan meets the requirements for approval under section 175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the remainder of the 20-year period following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2008 8-hour ozone violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA has preliminarily determined that Georgia's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Georgia SIP.
As discussed above, EPA has determined that the Atlanta Area attained the 2008 8-hour ozone NAAQS based on quality-assured monitoring data for the 3-year period from 2013-2015.
The emissions inventory is composed of four major types of sources: Point, non-point, on-road mobile, and non-road mobile. Complete descriptions of how the State developed these inventories are located in Appendix A of the July 18, 2016, SIP submittal.
Georgia provided point source emissions for EGU and non-EGU stationary sources with emissions equal to or exceeding 25 tons per year of VOC or NO
EGU point source emissions for the three power plants in the Area (Plant Bowen, Plant McDonough/Atkinson, and Plant Yates) are tabulated from data collected from Georgia Power during the 2014 emission data collection process.
For non-EGU emissions, Georgia calculated summer day emissions for the 2014 and 2030 inventories using 2014 NO
GA EPD based its 2014 area source emissions on its 2014 Air Emissions Reporting Requirements (AERR) submittal.
GA EPD developed 2014 agricultural burning and land clearing emissions using 2014 burning records from the Georgia Forestry Commission (GFC) and EPA agricultural burning emission factors.
The Atlanta Regional Commission developed 2014 and 2030 on-road mobile source emissions using EPA's MOVES2014a mobile source emissions model. GA EPD used best available local data for model inputs such as vehicle population, vehicle miles traveled (VMT), road type distribution, average speed distribution, starts, ramp fractions, age distributions, I/M inputs, and fuel properties. The model was run separately for two different groups of nonattainment counties because of differences in I/M program and Stage II refueling requirements. The first group consisted of the following 13 counties with Stage II refueling in place through 2015
Some non-road mobile emissions in the U.S. are from the non-road equipment segment (
For 2014 locomotive emissions, Georgia used 2011 emissions obtained from 2011 emissions modeling platform v6.2
The 2014 base year inventory for the Area, as well as the projected inventories for other years, were developed consistent with EPA guidance and are summarized in Tables 2 through 6 of the following subsection discussing the maintenance demonstration.
The maintenance plan associated with the redesignation request includes a maintenance demonstration that:
(i) Shows compliance with and maintenance of the 2008 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NO
(ii) Uses 2014 as the attainment year and includes future emissions inventory projections for 2018, 2022, 2026, and 2030. The 2022 emissions were calculated by linear interpolation between 2014 and 2030; 2018 emissions were calculated by linear interpolation between 2014 and 2022; and 2026 emissions were calculated by linear interpolation between 2022 and 2030.
(iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NO
(iv) Provides actual (2014) and projected emissions inventories, in tons per summer day (tpsd), for the Atlanta Area, as shown in Tables 3 and 4, below.
Tables 3 and 4 summarize the 2014 and future projected emissions of NO
As discussed in section VI of this proposed rulemaking, below, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Georgia selected 2014 as the attainment emissions inventory year for the Atlanta Area and calculated safety margins for 2030 as shown in Table 5, below.
The State has decided to allocate a portion of the available safety margin to the 2030 MVEBs to allow for, among other things, unanticipated growth in VMT and changes and uncertainty in vehicle mix assumptions that will influence the emission estimations. Georgia has allocated 20.43 tpd (34.76 percent) of the available NO
There currently are nine monitors measuring ozone in the Atlanta Area. Georgia will continue to operate the monitors in the Atlanta Area in compliance with 40 CFR part 58 and has
Georgia, through the GA EPD, has the legal authority to enforce and implement the maintenance plan for the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems.
Additionally, under the AERR, GA EPD is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. EPD will update the AERR inventory every three years and will use the updated emissions inventory to track progress of the maintenance plan.
Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).
In the July 18, 2016, submittal, Georgia commits to continuing existing programs and commits to use emission inventory and air quality monitoring data as indicators to determine whether contingency measures will be implemented. The contingency plan included in the maintenance plan includes a two-tiered triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures.
A Tier 1 trigger will apply where a violation of the 2008 8-hour standard has not occurred, but where the State finds monitored ozone concentrations indicating that a violation may be imminent. The Tier 1 trigger date will be 60 days after the State observes a 4th highest value of 0.076 ppm or greater at a single monitor for which the previous ozone season had a 4th highest value of 0.076 ppm or greater. If Tier 1 is triggered, Georgia will develop a plan identifying additional voluntary measures to be implemented to remedy the situation that may include the following measures or any other measure deemed appropriate and effective at the time the selection is made: Clean Air Force Campaign Strategies; additional Georgia Department of Transportation marketing campaigns; implementation of diesel retrofit programs, including incentives for performing retrofits for fleet vehicle operations; alternative fuel programs for fleet vehicle operations; gas can and lawnmower replacement programs; or voluntary engine idling reduction programs.
A Tier II trigger occurs when the periodic emissions inventory updates (AERR) reveal excessive or unanticipated growth greater than 10 percent in NO
If the comprehensive analysis determines that emissions from the Area are contributing to the trigger condition, GA EPD will evaluate those measures as specified in CAA section 172 for control options as well as other available measures. If a new measure/control is already promulgated and scheduled to be implemented at the federal or state level, and that measure/control is determined to be adequate, the State may conclude that additional local controls may be unnecessary. Under Section 175A(d), the minimum requirement for contingency measures is the implementation of all measures that were contained in the SIP before the redesignation. Currently all such measures are in effect for the Atlanta Area; however, an evaluation of those measures, such as RACT, can be performed to determine if those measures are adequate or up-to-date. In addition to these measures, contingency measure(s) will be selected from the following types of measures or from any other measure deemed appropriate and effective at the time the selection is made:
• RACM for sources of VOC and NO
• RACT for point sources of VOC and NO
• Expansion of RACM/RACT to area(s) of transport within the State;
• Other measures deemed appropriate at the time as a result of advances in control technologies; and
• Additional NO
EPA preliminarily concludes that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, EPA proposes to find that the maintenance plan SIP revision submitted by Georgia for the Area meets the requirements of section 175A of the CAA and is approvable.
Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (
Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration requirements) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions.
After interagency consultation with the transportation partners for the Atlanta Area, Georgia has developed MVEBs for NO
Georgia has chosen to allocate a portion of the available safety margin to the 2030 NO
Through this rulemaking, EPA is proposing to approve the MVEBs for NO
When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEB contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB must be used by state and federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM
As discussed earlier, Georgia's maintenance plan includes NO
EPA intends to make its determination on the adequacy of the 2014 and 2030 MVEBs for the Area for transportation conformity purposes in the near future by completing the adequacy process that was started on September 2, 2016. If EPA finds the 2014 and 2030 MVEBs adequate or approves them, the new MVEBs for NO
EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval. Approval of Georgia's redesignation request would change the legal designation of Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding and Rockdale Counties, in the Atlanta Area, found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Approval of Georgia's associated SIP revision would also incorporate a plan for maintaining the 2008 8-hour ozone NAAQS in the Area through 2030 into the Georgia SIP. The maintenance plan establishes NO
EPA is proposing to: (1) Approve the maintenance plan for the Atlanta Area, including the NO
If finalized, approval of the redesignation request would change the official designation of Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding and Rockdale Counties, in Georgia for the 2008 8-hour ozone NAAQS from nonattainment to attainment, as found at 40 CFR part 81.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule; Notice of intent for partial deletion of the North Penn Area 6 Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region III is issuing a Notice of Intent to Delete a portion of the North Penn Area 6 Superfund Site (Site) located in Lansdale Borough, Montgomery County, Pennsylvania, from the National Priorities List (NPL). The proposed deletion affects approximately 6.5 acres at 135 East Hancock Street (the “Administrative
This partial deletion pertains only to the soils and groundwater of the approximately 6.5 acre Administrative Parcel portion of the Site. The other portions of the Site will remain on the NPL, and are not being considered for deletion as part of this action.
Comments must be received by January 23, 2017.
Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1989-0009, by mail to Huu Ngo (3HS21), U.S. Environmental Protection Agency, 1650 Arch Street, Philadelphia, PA 19103-2029. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Huu Ngo, Remedial Project Manager (3HS21), U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029; (215) 814-3187; email:
In the “Rules and Regulations” Section of today's
For additional information, see the direct final Notice of Partial Deletion, which is located in the “Rules” section of this
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Federal Communications Commission.
Petition for reconsideration.
A Petition for Reconsideration (Petition) has been filed in the Commission's rulemaking proceeding by Russell M. Blau, on behalf of Smart City Telecommunications LLP.
Oppositions to the Petition must be filed on or before January 9, 2017. Replies to an opposition must be filed on or before January 17, 2017.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Victoria Goldberg, Wireline Competition Bureau, phone: (202) 418-7353; email:
This is a summary of the Commission's document, Report No. 3062, released December 13, 2016. The full text of the Petition is available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be accessed online via the Commission's Electronic Comment Filing System at:
Fish and Wildlife Service, Interior.
We, the U.S. Fish and Wildlife Service (Service or USFWS), with the support of the State of Oregon Parks and Recreation Department (OPRD), propose to establish a nonessential experimental population (NEP) of the Oregon silverspot butterfly (
We will accept comments received or postmarked on or before February 21, 2017. Please note that if you are using the Federal eRulemaking Portal (see
We will post all comments on
Laura Todd, Field Supervisor, 541-867-4558. Persons who use a TDD may call the Federal Relay Service (FRS) at 1-800-877-8339. Direct all questions or requests for additional information to: OREGON SILVERSPOT BUTTERFLY QUESTIONS, U.S. Fish and Wildlife Service, Newport Field Office, 2127 SE Marine Science Drive, Newport, OR 97365.
We want any final rule resulting from this proposal to be as effective as possible. Therefore, we invite Tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible.
To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.
You may submit your comments and materials concerning the proposed rule by one of the methods listed in
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as some of the supporting documentation we used in preparing this proposed rule, will be available for public inspection on
We particularly seek comments regarding:
• Any possible adverse effects on Oregon silverspot butterfly populations as a result of removal of individuals for the purposes of captive rearing and reintroduction of their offspring elsewhere;
• The likelihood that the proposed NEP will become established and survive in the foreseeable future;
• The relative effects that establishment of the NEP will have on the recovery of the subspecies; and
• The extent to which the reintroduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the proposed NEP areas.
In accordance with our Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities, which was published on July 1, 1994 (59 FR 34270), and a recent internal memorandum clarifying the Service's interpretation and implementation of that policy (USFWS 2016), we will seek the expert opinion of at least three appropriate independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the
We listed the Oregon silverspot butterfly as a threatened species under the Act (16 U.S.C. 1531
Species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 of the Act and the requirements of section 7 of the Act. Section 9 of the Act, among other things, prohibits the take of endangered wildlife. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Our regulations (50 CFR 17.31) generally extend the prohibition of take to threatened wildlife species. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the
The 1982 amendments to the Act (16 U.S.C. 1531
As discussed below (see Relationship of the NEP to Recovery Efforts), we are considering the reintroduction of the Oregon silverspot butterfly into areas of suitable habitat within its historical range for the purpose of restoring populations to meet recovery goals. Oregon silverspot butterfly populations have been reduced from at least 20 formerly known locations to only 5, thus reintroductions are important to achieve biological redundancy in populations and to broaden the distribution of populations within the geographic range of the subspecies. The restoration of multiple populations of Oregon silverspot butterfly distributed across its range is one of the recovery criteria identified for the subspecies (USFWS 2001, pp. 39-41).
When we establish experimental populations under section 10(j) of the Act, we must determine whether such a population is essential or nonessential to the continued existence of the species. This determination is based solely on the best scientific and commercial data available. Our regulations (50 CFR 17.80(b)) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild. All other populations are considered nonessential. We find the proposed experimental population to be nonessential for the following reasons: (1) Oregon silverspot butterflies are currently found at five locations, from the central Oregon coast to northern California (see Biological Information, below); (2) There are ongoing management efforts, including captive rearing and release, to maintain or expand Oregon silverspot butterfly populations at these five locations (VanBuskirk 2010, entire; USFWS 2012, entire); (3) The experimental population will not provide demographic support to the wild populations (see Location and Boundaries of the NEP, below); (4) The experimental population will not possess any unique genetic or adaptive traits that differ from those in the wild populations because it will be established using donor stock from extant wild populations of Oregon silverspot butterflies (see Donor Stock Assessment and Effects on Donor Populations, below); and (5) loss of the experimental population will not preclude other recovery options, including future efforts to reestablish Oregon silverspot butterfly populations elsewhere. Therefore, we are proposing to designate a nonessential experimental population (NEP) of Oregon silverspot butterfly at two sites in northwest Oregon.
With the NEP designation, the relevant population is treated as if it were listed as a threatened species for the purposes of establishing protective regulations, regardless of the species' designation elsewhere in its range. This approach allows us to develop tailored take prohibitions that are necessary and advisable to provide for the conservation of the species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species. The protective regulations adopted for an experimental population in a section 10(j) rule contain the applicable prohibitions and exceptions for that population. These section 9 prohibitions and exceptions apply on all lands within the NEP.
For the purposes of section 7 of the Act, which addresses Federal cooperation, we treat an NEP as a threatened species when the NEP is located within a National Wildlife Refuge or unit of the National Park Service, and Federal agency conservation requirements under section 7(a)(1) and the Federal agency consultation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) of the Act requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) of the Act apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional to the agencies carrying out, funding, or authorizing activities. If finalized, the NEP area within Nestucca Bay NWR will still be subject to the provisions of section 7(a)(2), and intra-agency consultation would be required on the refuge. Section 7(a)(2) consultation would not be required outside of the refuge.
Before authorizing the release as an experimental population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. In making such a finding, the Service uses the best scientific and commercial data available to consider the following factors (see 49 FR 33893; August 27, 1984): (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere (see
Furthermore, as set forth at 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s) (see
Under 50 CFR 17.81(d), the Service must consult with appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, and persons holding any interest in land which may be affected by the establishment of an experimental population.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.
The Oregon silverspot butterfly is a small, darkly marked coastal subspecies of the Zerene fritillary, a widespread butterfly species in montane western North America (USFWS 2001, p. 1). Historically, the Oregon silverspot butterfly was documented at 20 locations, from the border of northern California to the southern coast of Washington (McCorkle
The Oregon silverspot butterfly has a 1-year life cycle which begins when female adults lay eggs on or near early blue violets (
The Oregon silverspot butterfly occupies three types of grassland habitat: marine terrace and coastal headland meadows, stabilized dunes, and montane grasslands. Key resources needed by the Oregon silverspot butterfly in all of these habitats include: (1) The early blue violet, which is the primary host plant for Oregon silverspot caterpillars; (2) a variety of nectar plants that bloom during the butterfly flight period, including, but not limited to, yarrow (
Additional information on the biology, habitat, and life history of the butterfly can be found in our Revised Recovery Plan for the Oregon Silverspot Butterfly
We are proposing to establish an NEP to promote the conservation and recovery of the Oregon silverspot butterfly. The recovery strategy for the Oregon silverspot butterfly, as detailed in our 2001 revised recovery plan, is to protect and manage habitat, and to augment and restore populations (USFWS 2001, pp. 39-41). Recovery criteria for the Oregon silverspot butterfly are (USFWS 2001, p. 42):
1. At least two viable Oregon silverspot butterfly populations exist in protected habitat in each of the following areas: Coastal Mountains, Cascade Head, and Central coast in Oregon; and Del Norte County in California; and at least one viable Oregon silverspot butterfly population exists in protected habitat in each of the following areas: Long Beach Peninsula, Washington, and Clatsop Plains, Oregon. This includes the development of comprehensive management plans.
2. Habitats are managed long term to maintain native, early successional grassland communities. Habitat management maintains and enhances early blue violet abundance, provides a minimum of five native nectar species dispersed abundantly throughout the habitat and flowering throughout the entire flight-period, and reduces the abundance of invasive, nonnative plant species.
3. Managed habitat at each population site supports a minimum viable
The reintroduction of Oregon silverspot butterflies within the proposed NEP would help address the limited number of populations and the subspecies' diminished geographic range. In addition, it is likely to contribute to meeting recovery criteria, as both proposed NEP areas have the biological attributes to support a viable butterfly population of butterflies and will be managed consistent with the subspecies' biological needs.
Section 10(j) of the Act requires that an experimental population be geographically separate from other populations of the same species. We identified the boundary of the proposed NEP as those Public Land Survey System sections intersecting with a 4.25-mi (6.8-km) radius around the proposed release locations. This boundary was selected to encompass all likely movements of Oregon silverspot butterflies away from the release areas while maintaining geographic separation from existing populations. This 4.25-mi (6.8-km) radius is greater than the longest known flight distance of the Oregon silverspot butterfly (4.1 mi (6.6 km)) (VanBuskirk and Pickering 1999, pp. 3-4, Appendix 1). Although this flight distance had previously been reported as “5 miles” (VanBuskirk and Pickering 1999, p. 4; USFWS 2010, p. 10), a more precise measurement using the locations where the individual butterfly in question was marked and recaptured (rather than the general distance between the populations) resulted in a distance of 4.1 mi (6.8 km). The proposed NEP areas are geographically isolated from existing Oregon silverspot butterfly populations by a sufficient distance to preclude significant contact between populations. There is an extremely small potential that butterflies dispersing 4.1 mi (6.8 km) from the proposed release site on Nestucca Bay NWR may interact with butterflies dispersing 4.1 mi (6.8 km) from Cascade Head, because these locations are 8 mi (13 km) apart. Nevertheless, the likelihood of butterflies from these two sites interbreeding is remote because of the distance between the sites and the fact that there is little or no suitable habitat with appropriate larval host plants and adult nectar sources between Nestucca Bay NWR and Cascade Head. Even if butterflies dispersed and were present within the same area, we do not believe the occasional presence of a few individual butterflies meets a minimal biological definition of a population. Based on definitions of “population” used in other experimental population rules (
Saddle Mountain SNA, managed by OPRD, is located in central Clatsop County, in northwest Oregon. Saddle Mountain was historically occupied by the Oregon silverspot butterfly, which was last documented at this site in 1973 (McCorkle
Saddle Mountain SNA is a 3,225-acre (ac) (1,305-hectare (ha)) park known for its unique botanical community, which thrives on the thin rocky soils, with few invasive weeds. Habitat suitable for the Oregon silverspot butterfly consists of approximately 60 ac (24 ha) of meadows on the slopes of Saddle Mountain near its upper peaks at 3,288 feet (ft) (1,002 meters (m)) above sea-level. Based on recent plant surveys (OPRD 2012, p. 2), the proposed release site contains high-quality butterfly habitat with sufficient densities of the requisite species (
The Saddle Mountain NEP area is centered on the coastal prairie habitat on top of Saddle Mountain, where we are proposing to reintroduce the Oregon silverspot butterfly. The proposed NEP encompasses all the Public Land Survey System sections that intersect with a 4.25-mi (6.8-km) radius around the proposed release area. The subspecies is territorial within habitat areas, and the reintroduced butterflies are expected to stay in or near meadows on top of Saddle Mountain, which have an abundance of the plant species they need to survive. The proposed Saddle Mountain butterfly population will be released into permanently protected suitable habitat. We are proposing to reintroduce the Oregon silverspot butterfly as an NEP in this area to address OPRD's concerns regarding potential impacts to park management activities, such as trail maintenance, and potential opposition from surrounding landowners to the reintroduction of a federally listed species without an NEP. Surrounding land cover is primarily forest (OPRD 2014, pers. comm.) and is not suitable Oregon silverspot butterfly habitat; therefore, we do not expect butterflies to use areas outside of Saddle Mountain SNA.
The Nestucca Bay NWR, managed by the Service, is located in the southwest corner of Tillamook County, along the northern Oregon coast. Although the Oregon silverspot butterfly was never documented at this site, it is within the historical range of the subspecies along the coast, and a small amount of remnant coastal prairie occurred on the site prior to commencement of restoration efforts in 2011. Therefore, it is reasonable to assume that the Oregon silverspot butterfly once inhabited the area, but no surveys were conducted to document its presence. Currently occupied Oregon silverspot butterfly
The Nestucca Bay National Wildlife Refuge Comprehensive Conservation Plan includes a goal to promote the recovery of the Oregon silverspot butterfly by establishing an NEP on the refuge (USFWS 2013, p. 2-4). The approximately 1,203-ac (487-ha) refuge has 25 to 30 ac (10 to 12 ha) of coastal prairie habitat in varying stages of restoration, including the conversion of degraded grasslands on the Cannery Hill Unit from nonnative pasture grasses to native coastal grasses and forbs with an emphasis on the plant species and structure required to support the Oregon silverspot butterfly. Since 2011, invasive weed abundance has been minimized, and thousands of violet and nectar plants have been planted to enhance and restore the coastal prairie ecosystem. Funding acquired by the refuge in 2015 is now being used to complete habitat restoration on the remaining acreage prior to the release of Oregon silverspot butterflies.
The NEP area is centered on coastal prairie habitat on the Cannery Hill Unit of the refuge, where we are proposing to release Oregon silverspot butterflies. The proposed NEP encompasses all Public Land Survey System sections that intersect with a 4.25-mi (6.8-km) radius around the proposed release area. We propose to release Oregon silverspot butterflies into permanently protected suitable habitat at Nestucca Bay NWR, which will be managed to provide the plant community needed for the butterfly to become established and to support a population. We are proposing to reintroduce the Oregon silverspot butterfly as an NEP in this area to address adjacent landowner concerns regarding the impact a federally listed species might have on the sale or development of their property. As little or no suitable habitat is currently available on adjacent properties, and Oregon silverspot butterflies are territorial and non-migratory, we consider the likelihood of butterflies moving on to these adjacent lands to be low. Despite a few adjacent properties that Oregon silverspot butterflies might occasionally move through, the primary surrounding land cover is agriculture and forest (USFWS 2013, p. 4-3), which are not suitable habitat for the subspecies; therefore, occurrence of Oregon silverspot butterflies in surrounding areas, if any, is expected to be limited.
The best available scientific data indicate that the reintroduction of Oregon silverspot butterflies into suitable habitat is biologically feasible and would promote the conservation of the species. Oregon silverspot butterfly population augmentations have been conducted on the central Oregon coast from 2000 through 2015 (USFWS 2012, p. 10; Engelmeyer 2015, p. 4). Based on the knowledge gained from these efforts, we anticipate the proposed NEP areas would become successfully established. Butterflies would be released into high-quality habitat in sufficient amounts to support large butterfly populations, and no unaddressed threats to the species are known to exist at these sites.
The coastal headland meadows of the Nestucca Bay NWR are being restored with the specific intent of providing high densities of the plant species needed by the Oregon silverspot butterfly. Ongoing habitat enhancement and management will maintain suitable habitat and minimize the abundance and distribution of invasive, nonnative plant species, which degrade habitat quality. The Nestucca Bay NWR has committed to the management required to restore and maintain suitable habitat specifically for a population of the Oregon silverspot butterfly. The upper meadows of the Saddle Mountain SNA have an abundance of the key resources, including an intact plant community with an abundance of plants needed to support the Oregon silverspot butterfly. Habitat quality has been maintained through natural processes, including vertical drainage patterns associated with steep ridges, thin rocky soils, elevation, and winter snow cover within the forb rich Roemer fescue montane grassland community (ONHIC 2004, p. 2). The habitat at Saddle Mountain is self-sustaining, does not require active management (see Addressing Causes of Extirpation, below), and is adequately protected. Additionally, within both proposed NEP areas, large trees surrounding the meadows would provide needed cover for sheltering Oregon silverspot butterflies.
Based on all of these considerations, we anticipate that reintroduced Oregon silverspot butterflies are likely to become established and persist at Nestucca Bay NWR and Saddle Mountain SNA.
The largest threat to Oregon silverspot butterfly populations is a lack of suitable habitat. Without regular disturbance, coastal prairie habitat is vulnerable to plant community succession, resulting in loss of prairie habitat to brush and tree invasion. Invasive, nonnative plants also play a significant role in the degradation of habitat quality and quantity for this butterfly.
The reasons for the extirpation of the original population of Oregon silverspot butterflies on Saddle Mountain between 1973 and 1980 are unknown. The habitat on top of Saddle Mountain is currently suitable for supporting a population of the butterfly. The grassland habitat at this location has been self-sustaining likely due to the 3,000-ft (914-m) elevation, thin rocky soil type, steep slopes, primarily native composition of the plant community, and lack of human disturbance to the ecosystem. The Saddle Mountain SNA, protected as a special botanical area, has an annual day-use rate of 68,928 visitors per year. OPRD maintains a trail, accessible only by foot, which leads to the top of the mountain. The extremely steep grade on either side of the trail discourages visitors from straying off trail and into the adjacent meadow areas. Park rules do not allow collection of plants or animals (OPRD 2010). Continuance of this management regime is expected to protect the reintroduced population and contribute to its successful establishment. We acknowledge there is some uncertainty regarding population establishment and long-term viability at this site given that we have not identified the original cause of local extirpation. Nevertheless, this site has been identified as one of the most promising for a reintroduction effort given the lack of identifiable threats, density of host plants, and overall quality of habitat (VanBuskirk 2010, p. 27).
The Nestucca Bay NWR will address habitat threats by monitoring and maintaining habitat quality for the benefit of the Oregon silverspot butterfly, in accordance with the Nestucca Bay National Wildlife Refuge Comprehensive Conservation Plan, which sets specific targets for abundance of violet and nectar species. All management actions taken in the vicinity of the reintroduced population will defer to the habitat needs of the butterfly (USFWS 2013, pp. 4-37-4-43). As described above, the Nestucca Bay NWR is actively working to restore habitat specifically for the benefit of the Oregon silverspot butterfly in
We propose to use captive-reared butterflies to populate the NEP areas using proven release methods developed by the Oregon silverspot butterfly population augmentation program from 2000 to 2015 (USFWS 2012, p. 10; Engelmeyer 2015, p. 2). We will release captive-reared caterpillars or pupae of wild female butterflies into suitable habitat within the proposed NEP areas, following the guidance in the Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire). We will determine the number of individuals to release based on the number of available healthy offspring and the amount of suitable habitat available, with violet densities as the primary measure of habitat suitability. The ultimate goal is the establishment of self-sustaining populations of between 200 to 500 butterflies for 10 years at each proposed NEP area, similar to the recovery criteria for the other habitat conservation areas.
Based on guidance from the Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire), we propose to establish populations in each NEP area from offspring of at least 50 mated females. Because the number of female butterflies available for collection for the captive-rearing program is limited to 5 percent of the donor population per year, it may be necessary to release caterpillars or pupae incrementally over a period of a few years. We will use annual butterfly counts during the flight period to monitor population establishment success. Butterfly survey methods used at the occupied sites (Pollard 1977, p. 116; Pickering 1992, p. 3) will also be used to assess population establishment success in the proposed NEP areas.
Individual Oregon silverspot butterflies used to establish populations at both proposed NEP areas will most likely come from the offspring of the Mount Hebo population. Additional genetic research on the subspecies is in progress and may suggest that butterflies from other populations should be included in the captive-rearing program to enhance genetic diversity. If populations other than the Mount Hebo population are used as donor stock, we will evaluate the impact of taking females from those populations on the survival and recovery of the subspecies prior to issuing a recovery permit for such take.
The Mount Hebo Oregon silverspot butterfly population has historically been the largest and most stable population, averaging an annual index count of 1,457 butterflies per year between 2000 to 2014 (USFWS 2012, p. 10; Patterson 2014, p. 11); therefore, it is the least likely to be impacted by the removal of up to 5 percent of the population. Demographic modeling indicates that the optimal strategy for captive rearing of Oregon silverspot butterflies to increase the probability of persistence is to take females from larger donor populations (Crone
The Mount Hebo population occurs in an environment similar to the proposed Saddle Mountain NEP area (
The Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire) contains further information on the captive rearing program, release procedures, genetic considerations, population dynamics, effects of releases on population viability of the Oregon silverspot butterfly, and the potential for reintroduction to Saddle Mountain SNA and Nestucca Bay NWR (copies of this document are available online at
Based on the current legal and biological status of the subspecies and the need for management flexibility, and in accordance with section 10(j) of the Act, we propose to designate all Oregon silverspot butterflies released within the boundaries of the NEP areas as members of the NEP. Such designation allows us to establish special protective regulations for management of Oregon silverspot butterflies.
With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the Act, regardless of the species' designation elsewhere in its range. Treating the experimental population as threatened allows us the discretion to devise management programs and specific regulations for such a population. Section 4(d) of the Act allows us to adopt any regulations that are necessary and advisable to provide for the conservation of a threatened species. When designating an experimental population, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the section 10(j) rule contains the prohibitions and exemptions necessary and advisable to conserve that species.
The 10(j) rule would further the conservation of the subspecies by facilitating its reintroduction into two areas of suitable habitat within its historical range. The rule would provide
We conclude that the effects of Federal, State, or private actions and activities will not pose a threat to Oregon silverspot butterfly establishment and persistence at Saddle Mountain SNA or the Nestucca Bay NWR because the best information, including activities currently occurring in Oregon silverspot butterfly populations range wide, indicates that activities currently occurring, or likely to occur, at prospective reintroduction sites within proposed NEP areas are compatible with the species' recovery. The reintroduced Oregon silverspot butterfly populations would be managed by OPRD and the Service, and would be protected from major development activities through the following mechanisms:
(1) Development activities and timber harvests are not expected to occur in the Saddle Mountain SNA, which is protected as a special botanical area. Trail maintenance and other park maintenance activities would continue to occur within the proposed NEP area, but are expected to have minimal impact on the butterfly meadow habitat areas due to the terrain and steepness of the slopes. Because of the rugged nature of the area, and also to protect the important botanical resources at this site, maintenance activities in this area are generally limited to trail maintenance by hand crews, with minimal impacts on the meadow areas. Additionally, the proposed Oregon silverspot butterfly NEP area at Saddle Mountain SNA would be protected by the Oregon State regulations prohibiting collection of animals on State lands (Oregon Administrative Rule (OAR) 736-010-0055(2)(d)). Private timberlands surrounding the SNA do not contain suitable butterfly habitat, and therefore activities on adjacent lands are not expected to impact the butterfly.
(2) In accordance with the Nestucca Bay NWR Comprehensive Conservation Plan, all refuge management actions taken in the vicinity of the reintroduced population will defer to the habitat needs of the butterfly (USFWS 2013, pp. 4-37-4-43). In addition, the refuge must complete section 7(a)(2) consultation on all actions that may affect the butterfly. Oregon silverspot butterflies may occasionally visit or fly within adjacent properties near the proposed NEP area, which may be subject to future development. However, given the lack of suitable habitat for this subspecies on adjacent properties, as well as the butterfly's territorial and non-migratory nature, we consider negative impacts to the Oregon silverspot butterfly from development on adjacent sites to be unlikely, as there is little likelihood of individuals moving to these sites.
Management issues related to the proposed Oregon silverspot butterfly NEP that have been considered include:
Oregon silverspot butterfly surveys would be conducted annually within Oregon silverspot butterfly habitat at Nestucca Bay NWR and Saddle Mountain SNA using a modified Pollard walk methodology (Pickering
We would conduct annual Oregon silverspot butterfly surveys within the populations where donor stock is obtained using a modified Pollard walk methodology (Pickering
We do not anticipate impacts to other listed species by the proposed reintroduction of the Oregon silverspot butterfly.
Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that reintroducing the Oregon silverspot butterfly into the Saddle Mountain SNA and the Nestucca Bay NWR and the associated protective measures and management practices under this proposed rulemaking would further the conservation of the subspecies. The nonessential experimental population status is appropriate for the reintroduction areas because we have determined that these populations are not essential to the continued existence of the subspecies in the wild.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 60
The area that would be affected if this proposed rule is adopted includes the release areas at Saddle Mountain SNA and Nestucca Bay NWR and adjacent areas into which individual Oregon silverspot butterflies may disperse. Because of the regulatory flexibility for Federal agency actions provided by the proposed NEP designation and the exemption for incidental take in the rule, we do not expect this rule to have significant effects on any activities within Federal, State, or private lands within the proposed NEP. In regard to section 7(a)(2) of the Act, the population would be treated as proposed for listing, and Federal action agencies are not required to consult on their activities, except on National Wildlife Refuge and National Park land where the subspecies is managed as a threatened species. Section 7(a)(4) of the Act requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a proposed species. However, because the proposed NEP is, by definition, not essential to the survival of the species, conferring will likely never be required for the Oregon silverspot butterfly populations within the NEP areas. Furthermore, the results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. In addition, section 7(a)(1) of the Act requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species, which would apply on any lands within the NEP areas. Within the boundaries of the Nestucca Bay NWR, the subspecies would be treated as a threatened species for the purposes of section 7(a)(2) of the Act. As a result, and in accordance with these regulations, some modifications to proposed Federal actions within Nestucca Bay NWR may occur to benefit the Oregon silverspot butterfly, but we do not expect projects to be substantially modified because these lands are already being administered in a manner that is compatible with Oregon silverspot butterfly recovery.
If adopted, this proposal would broadly authorize incidental take of the Oregon silverspot butterfly within the NEP areas. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity such as, agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities in the NEP areas that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes would not be authorized. Intentional take for
The principal activities on private property near the proposed NEP areas are timber production, agriculture, and activities associated with private residences. We believe the presence of the Oregon silverspot butterfly would not affect the use of lands for these purposes because there would be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or private landowners due to the presence of the Oregon silverspot butterfly, and Federal agencies would only have to comply with sections 7(a)(1) and 7(a)(4) of the Act in these areas, except on Nestucca Bay NWR lands where section 7(a)(2) of the Act would apply. Therefore, this rulemaking is not expected to have any significant adverse impacts to activities on private lands within the proposed NEP areas.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) If adopted, this proposal would not “significantly or uniquely” affect small governments. We have determined and certify under the Unfunded Mandates Reform Act, 2 U.S.C. 1502
(2) This proposed rule would not produce a Federal mandate of $100 million or greater in any year (
In accordance with Executive Order 12630, the proposed rule does not have significant takings implications. This rule would allow for the take of reintroduced Oregon silverspot butterflies when such take is incidental to an otherwise legal activity, such as recreation (
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 would substantially advance a legitimate government interest (conservation and recovery of a listed species) and would not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with Executive Order 13132, we have considered whether this proposed rule has significant Federalism effects and have determined that a federalism summary impact statement is not required. This proposed rule would 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. In keeping with Department of the Interior policy, we requested information from and coordinated development of this proposed rule with the affected resource agencies in Oregon. Achieving the recovery goals for this subspecies would contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments would not change; and fiscal capacity would not be substantially directly affected. The proposed rule would maintain the existing relationship between the State and the Federal Government, and is being undertaken in coordination with the State of Oregon. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a federalism summary impact statement under the provisions of Executive Order 13132.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and would meet the requirements of sections (3)(a) and (3)(b)(2) of the Order.
Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
The reintroduction of native species into suitable habitat within their historical or established range is categorically excluded from NEPA documentation requirements consistent with the Department of Interior's Department Manual (516 DM 8.5B(6)).
In accordance with the presidential memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951; May 4, 1994), Executive Order 13175 (65 FR 67249; November 9, 2000), and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects on federally recognized Indian tribes and have determined that there are no tribal lands affected by this proposed rule.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Because this action is not a significant energy action, no Statement of Energy Effects is required.
We are required by E.O. 12866, E.O. 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
A complete list of all references cited in this final rule is available at
The primary authors of this proposed rule are staff members of the Service's Newport Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and record keeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(d) Oregon Silverspot Butterfly (
(A) The Nestucca Bay NEP area, centered on the coastal prairie habitat on the Cannery Hill Unit of the Nestucca Bay National Wildlife Refuge (Nestucca Bay NEP area), includes Township 4 South, Range 10 West, Sections 15 through 36; Township 4 South, Range 11 West, Sections 13, 24, 25, and 36; Township 5 South, Range 10 West, Sections 2 through 11, 14 through 23, 27 through 30; and Township 5 South, Range 11 West, Sections 12, 13, 24, and 25.
(B) The Saddle Mountain NEP area, centered on the coastal prairie habitat on top of Saddle Mountain State Natural Area (Saddle Mountain NEP area), includes Township 6 North, Range 7 West, Sections 7, 17 through 20, 29 through 32; Township 6 North, Range 8 West, Sections 1 through 36; Township 6 North, Range 9 West, Sections 1, 11 through 14, 23 through 26, 35, and 36; Township 5 North, Range 7 West, Sections 5 through 8, 17, 18, and 19; Township 5 North, Range 8 West, Sections 1 through 24; and Township 5 North, Range 9 West, Sections 1, 2, 3, 11, 12, 13, and 14.
(ii) The nearest known extant population to the Nestucca Bay NEP area is 8 miles (13 kilometers) to the south, beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)) and with little or no suitable habitat between them. The nearest known extant population to the Saddle Mountain NEP area is 50 miles (80 kilometers) to the south, well beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)). Given its habitat requirements, movement patterns, and distance from extant populations, the NEP is wholly separate from extant populations and we do not expect the reintroduced Oregon silverspot butterflies to become established outside the NEP areas. Oregon silverspot butterflies outside of the NEP boundaries will assume the status of Oregon silverspot butterflies within the geographic area in which they are found.
(iii) We will not change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP areas without engaging in notice-and-comment rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(i) Oregon silverspot butterflies may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, and is incidental to carrying out an otherwise lawful activity, such as agriculture, forestry and wildlife management, land development, recreation, and other activities that are in accordance with Federal, State, Tribal, and local laws and regulations.
(ii) Any person with a valid permit issued by the Service under 50 CFR 17.32 may take the Oregon silverspot butterfly for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act. Additionally, any employee or agent of the Service, any other Federal land management agency, or a State conservation agency, who is designated by the agency for such purposes, may, when acting in the course of official duties, may take an Oregon silverspot butterfly in the wild in the NEP area if such action is necessary:
(A) For scientific purposes;
(B) To relocate Oregon silverspot butterflies to avoid conflict with human activities;
(C) To relocate Oregon silverspot butterflies within the NEP area to improve Oregon silverspot butterfly survival and recovery prospects or for genetic purposes;
(D) To relocate Oregon silverspot butterflies from one population in the NEP into another in the NEP, or into captivity;
(E) To euthanize an injured Oregon silverspot butterfly;
(F) To dispose of a dead Oregon silverspot butterfly, or salvage a dead Oregon silverspot butterfly for scientific purposes;
(G) To relocate an Oregon silverspot butterfly that has moved outside the NEP area back into the NEP area; or
(H) To aid in law enforcement investigations involving the Oregon silverspot butterfly.
(i) Except as expressly allowed in paragraph (d)(2) of this section, all of the provisions of 50 CFR 17.31(a) and (b) apply to the Oregon silverspot butterfly in areas identified in paragraph (d)(1) of this section.
(ii) A person may not possess, sell, deliver, carry, transport, ship, import, or export by any means, Oregon silverspot butterflies, or parts thereof, that are taken or possessed in a manner not expressly allowed in paragraph (d)(2) of this section or in violation of applicable State fish and wildlife laws or regulations or the Act.
(iii) Any manner of take not described under paragraph (d)(2) of this section is prohibited in the NEP areas.
(iv) A person may not attempt to commit, solicit another to commit, or cause to be committed any take of the Oregon silverspot butterfly, except as expressly allowed in paragraph (d)(2) of this section.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its
This meeting will be held on Tuesday, January 10, 2017, at 10 a.m., to view the agenda see
The meeting will be held at the Four Points by Sheraton, 1 Audubon Road, Wakefield, MA 01880: (781) 245-9300.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel will review alternatives and analyses prepared for Framework Adjustment 5 to the Atlantic
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at 978-465-0492, at least 5 days prior to the meeting.
16 U.S.C. 1801
Administrative Conference of the United States.
The Administrative Conference of the United States adopted four recommendations at its Sixty-sixth Plenary Session. The appended recommendations address: Special Procedural Rules for Social Security Litigation; Evidentiary Hearings Not Required by the Administrative Procedure Act; The Use of Ombuds in Federal Agencies; and Self-Represented Parties in Administrative Proceedings.
For Recommendation 2016-3, Daniel Sheffner; for Recommendation 2016-4, Amber Williams; for Recommendation 2016-5, David Pritzker; and for Recommendation 2016-6, Connie Vogelmann. For all of these actions the address and telephone number are: Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036; Telephone 202-480-2080.
The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations to agencies, the President, Congress, and the Judicial Conference of the United States for procedural improvements (5 U.S.C. 594(1)). For further information about the Conference and its activities, see
The Appendix below sets forth the full texts of these four recommendations. The Conference will transmit them to affected agencies, Congress, and the Judicial Conference of the United States. The recommendations are not binding, so the entities to which they are addressed will make decisions on their implementation.
The Conference based these recommendations on research reports that are posted at:
The Administrative Conference recommends that the Judicial Conference of the United States develop special procedural rules for cases under the Social Security Act
* * *
The Social Security Administration (SSA) administers the Social Security Disability Insurance program and the Supplemental Security Income program, two of the largest disability programs in the United States. An individual who fails to obtain disability benefits under either of these programs, after proceeding through SSA's extensive administrative adjudication system, may appeal the agency's decision to a federal district court.
District courts face exceptional challenges in social security litigation. Although institutionally oriented towards resolving cases in which they serve as the initial adjudicators, the federal district courts act as appellate tribunals in their review of disability decisions. That fact alone does not make these cases unique; appeals of agency actions generally go to district courts unless a statute expressly provides for direct review of an agency's actions by a court of appeals.
The Federal Rules were designed for cases litigated in the first instance, not for those reviewing, on an appellate basis, agency adjudicative decisions. Consequently, the Federal Rules fail to account for a variety of procedural issues that arise when a disability case is appealed to district court. For example, the Rules require the parties to file a complaint and an answer. Because a social security case is in substance an appellate proceeding, the case could more sensibly be initiated through a simple document akin to a notice of appeal or a petition for review. Moreover, although 42 U.S.C. 405(g) provides that the certified record should be filed as “part of” the government's answer, there is no functional need at that stage for the government to file anything more than the record. In addition, the lack of congruence between the structure of the Rules and the nature of the proceeding has led to uncertainty about the type of motions that litigants should file in order to get their cases resolved on the merits. In some districts, for instance, the agency files the certified transcript of administrative proceedings instead of an answer, whereas other districts require the agency to file an answer. In still other districts, claimants must file motions for summary judgment to have their case adjudicated on the merits,
Social security disability litigation is not the only type of specialized litigation district courts regularly review in an appellate capacity. District courts entertain an equivalent number of habeas corpus petitions,
When specialized litigation with unique procedural needs lacks a tailored set of national procedural rules for its governance, districts and even individual judges have to craft their own. This is precisely what has happened with social security litigation. The Federal Rules do exempt disability cases from the initial disclosure requirements of Rule 26, and limit electronic access of nonparties to filings in social security cases,
Many of the local rules and orders fashioned to fill the procedural gaps left by the Federal Rules generate inefficiencies and impose costs on claimants and SSA. For example, simultaneous briefing—the practice in some districts that requires both parties to file cross motions for resolution of the merits and to respond to each other's briefs in simultaneously filed responses—effectively doubles the number of briefs the parties must file. Some judges employ a related practice whereby the
The disability program is a national program that is intended to be administered in a uniform fashion, yet procedural localism raises the possibility that like cases will not be treated alike. Burdensome procedures adopted by some districts or judges, such as simultaneous briefing schedules, can increase delays and litigation costs for some claimants, while leaving other similarly situated claimants free from bearing those costs. Further, many of the attorneys who litigate social security cases—agency lawyers and claimants' representatives alike—maintain regional or even national practices. Localism, however, makes it difficult for those lawyers to economize their resources by, for instance, forcing them to refashion even successful arguments in order to fit several different courts' unique page-limits or formatting requirements.
Procedural variation can thus impose a substantial burden on SSA as it attempts to administer a national program and can result in arbitrary delays and uneven costs for disability claimants appealing benefit denials. SSA and claimants would benefit from a set of uniform rules that recognize the appellate nature of disability cases. Indeed, several districts already treat disability cases as appeals.
The Supreme Court has recognized that the exercise of rulemaking power to craft
The Administrative Conference believes that a special set of procedural rules could bring much needed uniformity to social security disability and related litigation. In routine cases, page limits, deadlines, briefing schedules, and other procedural requirements should be uniform to ensure effective procedural management. At the same time, the new rules should be drafted to displace the Federal Rules
The research that served as the foundation for this report focused on social security disability litigation commenced under 42 U.S.C. 405(g). Section 405(g) also authorizes district court review of SSA old age and survivors benefits decisions, as well as other actions related to benefits. Because such non-disability appeals do not differ procedurally from disability cases in any meaningful way,
The Conference recognizes that some cases might be brought under § 405(g) that would fall outside the rationale for the proposed new rules. This could include class actions and other broad challenges to program administration, such as challenges to the constitutionality or validity of statutory and regulatory requirements, or similar broad challenges to agency policies and procedures. In these cases, the usual deadlines and page limits could be too confining. By citing these examples, the Conference does not intend to preclude other exclusions. The task of precisely defining the cases covered by any new rules would be worked out by the committee that drafts the rules, after additional research and more of an opportunity for public comment on the scope of the rules than has been possible for the Conference. It may also be necessary to include specific rules explaining the procedure for the exclusion of appropriate cases.
1. The Judicial Conference, in consultation with Congress as appropriate, should develop for the Supreme Court's consideration a uniform set of procedural rules for cases under the Social Security Act in which an individual seeks district court review of a final administrative decision of the Commissioner of Social Security pursuant to 42 U.S.C. 405(g). These rules would not apply to class actions or to other cases that are outside the scope of the rationale for the proposal.
2. Examples of rules that should be promulgated include:
a. A rule providing that a claimant's complaint filed under 42 U.S.C. 405(g) be substantially equivalent to a notice of appeal;
b. A rule requiring the agency to file a certified copy of the administrative record as the main component of its answer;
c. A rule or rules requiring the claimant to file an opening merits brief to which the agency would respond, and providing for appropriate subsequent proceedings and the filing of appropriate responses consistent with 42 U.S.C. 405(g) and the appellate nature of the proceedings;
d. A rule or rules setting deadlines and page limits as appropriate; and
e. Other rules that may promote efficiency and uniformity in social security disability and related litigation, without favoring one class of litigants over another or impacting substantive rights.
Federal administrative adjudication can be divided into three categories:
(a) Adjudication that is regulated by the procedural provisions of the Administrative Procedure Act (APA) and usually presided over by an administrative law judge (referred to as Type A in the report that underlies this recommendation and throughout the preamble)
(b) Adjudication that consists of legally required evidentiary hearings that are not regulated by the APA's adjudication provisions in 5 U.S.C. 554 and 556-557 and that is presided over by adjudicators who are often called administrative judges, though they are known by many other titles (referred to as Type B in the report that underlies this recommendation and throughout the preamble)
(c) Adjudication that is not subject to a legally required (
This recommendation concerns best practices for the second category of adjudication, that is, Type B adjudication.
Type B adjudications are extremely diverse.
The purpose of this recommendation is to set forth best practices that agencies should incorporate into regulations governing hearing procedures in Type B adjudications. The procedures suggested below are highlighted as best practices because they achieve a favorable balance of the criteria of accuracy (meaning that the procedure produces a correct and consistent outcome), efficiency (meaning that the procedure minimizes cost and delay), and acceptability to the parties (meaning that the procedure meets appropriate standards of procedural fairness).
Some of the best practices set forth in this recommendation may not be applicable or desirable for every Type B adjudicatory program. Accordingly, the recommendation does not attempt to prescribe the exact language that the agency should employ in its procedural regulations.
a. Improper financial or other personal interest in the decision;
b. Personal animus against a party or group to which that party belongs; or
c. Prejudgment of the adjudicative facts at issue in the proceeding.
Procedural regulations and manuals should explain when and how parties should raise claims of bias, and how agencies resolve them.
a. Procedures for requesting a hearing;
b. Discovery options, if any (see paragraph 10);
c. Information about representation, including self-representation and non-lawyer or limited representation, if permitted (see paragraphs 13-16), and any legal assistance options;
d. Available procedural alternatives (
e. Deadlines for filing pleadings and documents;
f. Procedures for subpoenaing documents and witnesses, if allowed (see paragraph 11);
g. Opportunity for review of the initial decision at a higher agency level (see paragraph 26);
h. Availability of judicial review; and
i. Web site address for and/or citation to the procedural regulations and any practice manuals.
a. National security;
b. Law enforcement;
c. Confidentiality of business documents; and
d. Privacy of the parties to the hearing.
a. Interpretation of statutes or regulations; or
b. Legislative facts as to which experts offer conflicting views.
Agencies should also consider the adoption of procedures for summary judgment in cases in which there are no disputed issues of material fact.
a. The dispute concerns a question of legislative fact where the evidence consists of expert testimony;
b. Credibility is not at issue;
c. The only issue is how a decisionmaker should exercise discretion;
d. National security could be jeopardized; or
e. The identity of confidential informants might be revealed.
a. Findings of fact, including an explanation of how the decisionmaker made credibility determinations; and
b. Conclusions of law, including an explanation of the decisionmaker's interpretation of statutes and regulations.
This recommendation updates and expands on the Administrative Conference's earlier Recommendation 90-2,
The present recommendation is based on a study of the far broader array of federal ombuds
The research conducted to support this recommendation, including quantitative and qualitative surveys, interviews, case studies and profiles, revealed that federal ombuds can add value to their agencies in a variety of ways.
Externally-facing ombuds were more likely to report supporting the agency with specific mission-related initiatives; helping the agency to improve specific policies, procedures, or structures; making administrative decisions to resolve specific issues; helping within the agency to keep its organizational processes coordinated; and advocating on behalf of individuals. Internally-facing ombuds were more likely to report helping constituents by providing a safe way to discuss perceptions of unsafe or illegal behavior; promoting the use of fair and helpful options; helping to prevent problems by coaching one-on-one; and providing group training and briefings to constituents. Whistleblower ombuds and procurement ombuds—consonant with their particular focus on more narrowly defined responsibilities—described their accomplishments as providing specific information and education, and guidance about very specific matters of concern to their constituents.
Since the Conference last considered ombuds in the federal government, the milieu in which government operates has, by all accounts, become more polarized, with government itself often the target of suspicion and hostility. In a challenging environment in which many federal agencies struggle to maintain the trust of the public they serve and even of their own employees, the ombuds is uniquely situated to provide both pertinent information and assistance in resolving issues to constituents and the agency alike. The ability of the ombuds to provide a place perceived as safe—which can offer a ready, responsive, and respectful hearing and credible options—in itself builds trust. And trust is a commodity without which government in a democratic society cannot function effectively.
Accordingly, the Conference continues to urge Congress and the President to create, fund, and otherwise support ombuds offices across the government consistent with the recommendation articulated below. Further, the Conference urges those agencies that already have ombuds, and those that are contemplating creating ombuds offices, to align their office standards and practices with those included in this recommendation. In general, the Conference recommends these practices to the extent applicable in particular situations, regardless of whether an ombuds office or program is created by Congress or by an agency.
Although functionally the federal ombuds landscape is quite diverse, most federal ombuds share three
Most federal ombuds also share the following common characteristics: (1) Ombuds do not make decisions binding on the agency or provide formal rights-based processes for redress; (2) they have a commitment to fairness; and (3) they provide credible processes for receiving, reviewing, and assisting in the resolution of issues. The three core standards and these common characteristics, taken together, are central to the ombuds profession.
Agencies have the authority to establish ombuds offices or programs. Although legislation establishing a generally applicable template and standards for federal ombuds has not been enacted, the 1996 addition of the words “use of ombuds” to the definition of “means of alternative dispute resolution” in ADRA clarifies that, when the ombuds office is assisting in the resolution of issues that are raised to it under its mandate, it is covered by the Act's provisions.
The research for this recommendation also identified three areas of potential conflict between (a) the requirements of ADRA § 574 and the scope of confidentiality that ombuds offer to constituents and (b) other legal requirements that may be applicable in certain situations. Federal ombuds should be aware of these matters and how they may affect particular ombuds programs:
(a) The relationships among their statutory duties to report information, the requirements of ADRA § 574(a)(3) on confidentiality, their agency's mission, and the professional standards to which they adhere. Any latitude they may have under ADRA § 574(d)(1) should be considered in reaching an understanding within the agency and with constituents of the breadth and limits of confidentiality consistent with statutory requirements.
(b) The requirements and interrelationship of the Federal Records Act,
(c) The effect on confidentiality of the Federal Service Labor-Management Relations Statute,
In addition, this recommendation addresses standards applicable to federal agency ombuds offices and related issues involved in creating such offices. The practices included in this recommendation are intended to highlight some overarching beneficial practices observed among federal ombuds and to supplement the recommended practices and guidance available from various ombuds professional organizations.
To foster continual improvement and accountability of individual ombuds offices, the recommendation advises that each ombuds office arrange for periodic evaluation of its management and program effectiveness. Evaluation of ombuds by colleagues within the office can be useful if the office is of sufficient size to make this feasible. Otherwise, any external evaluation should be conducted by individuals knowledgeable about the roles, functions, and standards of practice of federal ombuds. For example, peer evaluation using the expertise of similar types of ombuds in other offices or agencies, or by outside ombuds professionals, may be suitable.
Finally, the recommendation urges the designation of an entity to serve as a government-wide resource to address certain issues of common concern among agency ombuds that transcend organizational boundaries.
a. Agencies should consider creating additional ombuds offices to provide places perceived as safe for designated constituents to raise issues confidentially and receive assistance in resolving them without fear of retribution. They should ensure that the office is able to, and does, adhere to the three core standards of independence, confidentiality, and impartiality, as these standards are described in generally recognized sets of professional standards, which include those adopted by the American Bar Association, the International Ombudsman Association, and the United States Ombudsman Association, and they should follow, to the extent applicable, the procedural recommendations below. Existing offices with the ombuds title that do not adhere to these standards should consider modifying their title, where permitted, to avoid any confusion.
b. Ombuds offices created by executive action should be established or governed by a charter or other agency-wide directive specifying the office's mandate, standards, and operational requirements, so that others in the agency and the public are aware of the office's responsibilities.
a. Congress should consider creating additional ombuds offices. When Congress creates a new ombuds program, it should observe the procedural principles contained in this recommendation, to the extent applicable.
b. Any action by Congress creating or affecting the operations of agency ombuds offices, whether through amendment of the Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 571-84, or other legislative action, should reinforce the core standards of independence, confidentiality, and impartiality. Any such actions should maintain clarity and uniformity of definitions and purpose for federal agency ombuds, while allowing for differences in constituencies (whether primarily internal or external), type of office (advocate, analytic, organizational, etc.), and agency missions.
a. Agency leadership should provide visible support, renewed as leadership changes, for the role of ombuds offices in the agency and their standards, including independence, confidentiality, and impartiality.
b. Agency leadership should consider carefully any specific recommendations for improved agency performance that are provided by agency ombuds.
a. To promote the effectiveness and independence of ombuds offices, agencies should consider structuring ombuds offices so that they are perceived to have the necessary independence and are separate from other units of the agency. To ensure adequate support from agency leadership, ombuds offices should report to an agency official at the highest level of senior leadership. Ombuds offices should not have duties within the agency that might create a conflict with their responsibilities as a neutral, and their budgets should be publicly disclosed.
b. The agency should ensure that the ombuds has direct access to the agency head and to other senior agency officials, as appropriate. Whether by statute, regulation, or charter, ombuds should expressly be given access to agency information and records pertinent to the ombuds' responsibilities as permitted by law.
c. Ombuds and the agencies in which they are located should clearly articulate in all communications about the ombuds that the ombuds office is independent and specifically not a conduit for notice to the agency.
d. Federal ombuds should not be subject to retaliation, up to and including removal from the ombuds office, based on their looking into and assisting with the resolution of any issues within the ombuds' area of jurisdiction.
a. Consistent with the generally accepted interpretation of ADRA § 574, as applied to alternative dispute resolution offices, agencies should understand and support that the Act's requirements for confidentiality attach to communications that occur at intake and continue until the issue has been resolved or is otherwise no longer being handled by the ombuds, whether or not the constituent ever engages in mediation facilitated by the ombuds office. Restrictions on disclosure of such communications, however, should not cease with issue resolution or other indicia of closure within the ombuds office.
b. Agencies (or other authorizers) should articulate the scope and limits of the confidentiality offered by ombuds offices in their enabling documents (whether statute, regulation, charter or other memoranda), as well as on the agency Web site, in brochures, and in any other descriptions or public communications about the office utilized by the office or the agency.
c. Agency leadership and management should not ask for information falling within the scope of confidentiality offered by the ombuds office.
d. If information is requested from an ombuds during discovery in litigation, or in the context of an internal administrative proceeding in connection with a grievance or complaint, then the ombuds should seek to protect confidentiality to the fullest extent possible under the provisions of ADRA § 574, unless otherwise provided by law. Agencies should vigorously defend the confidentiality offered by ombuds offices.
a. The relationships among their statutory duties to report information, the requirements of ADRA § 574(a)(3) on confidentiality, their agency's mission, and the professional standards to which they adhere.
b. The requirements and interrelationship of the Federal Records Act, the Freedom of Information Act, and the Privacy Act, with regard to agency records and other documentation.
c. The effect on confidentiality of the provision in the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7114, where applicable, pursuant to which the union may be entitled to notice and an opportunity to be present at meetings with bargaining unit employees.
a. Agencies should reinforce the credibility of federal ombuds by appointment of ombuds with sufficient professional stature, who also possess the requisite knowledge, skills, and abilities. This should include, at a minimum,
b. While the spectrum of federal ombuds is too diverse to recommend a single federal position classification, job grade, and set of qualifications, agencies and the Office of Personnel Management should consider working collaboratively, in consultation with the relevant ombuds professional associations, to craft and propose appropriate job descriptions, classifications, and qualifications, as set forth in the preceding subsection, covering the major categories of federal ombuds.
a. To promote accountability and professionalism, agencies should provide training to ombuds with regard to standards and practice, whether offered by one of the ombuds professional organizations or working groups, or from within the government.
b. Ombuds should identify steps to build general competency and confidence within the office and to provide specific support to ombuds when cases become highly emotional or complex. More generally, as a regular practice to support and improve their skills, federal ombuds should participate in relevant professional working groups or ombuds association training programs.
c. Ombuds offices should consider the use of developmental assignments via details to other agencies or offices, as appropriate, supplemented by mentoring, which can be helpful as part of their training program.
a. Ombuds offices should provide information about relevant options to visitors to the ombuds office, including formal processes for resolving issues, and their requirements, so that visitors do not unintentionally waive these options by virtue of seeking assistance in the ombuds office. Correspondingly, ombuds offices should not engage in behavior that could mislead employees or other visitors about the respective roles of the ombuds and those entities that provide formal complaint processes.
b. Agencies should disclose publicly on their Web sites the identity, contact information, statutory or other basis, and scope of responsibility for their ombuds offices, to the extent permitted by law.
c. Agency ombuds offices should explore ways to document for agency senior leadership, without breaching confidentiality, the value of the use of ombuds, including identification of systemic problems within the agency and, where available, relevant data on cost savings and avoidance of litigation.
a. Ombuds offices should undertake outreach and education to build effective relationships with those affected by their work. Outreach efforts should foster awareness of the services that ombuds offer, to promote understanding of ombuds (and agency) processes and to ensure that constituents understand the role of the ombuds and applicable standards.
b. To ensure that there is a mutual understanding of respective roles and responsibilities within the agency, ombuds offices should work proactively with other offices and stakeholders within their agencies to establish protocols for referrals and overlap, to build cooperative relationships and partnerships that will enable resolutions, and to develop internal champions. Such initiatives also help the ombuds to identify issues new to the agency, as well as patterns and systemic issues, and to understand how the ombuds can use the resources available to add the most value. Outreach should be ongoing to keep up with the turnover of agency officials and constituents and should utilize as many communications media as appropriate and feasible.
Federal agencies conduct millions of proceedings each year, making decisions that affect such important matters as disability or veterans' benefits, immigration status, and home or property loans. In many of these adjudications, claimants appear unrepresented for part or all of the proceeding and must learn to navigate hearing procedures, which can be quite complex, without expert assistance. The presence of self-represented parties
Because of these concerns, in the spring of 2015 the Department of Justice's Access to Justice Initiative asked the Administrative Conference to co-lead a working group on self-represented parties in administrative proceedings, and the Conference agreed. The working group, which operates under the umbrella of the Legal Aid Interagency Roundtable (LAIR), has been meeting since that time.
While civil courts have long recognized and worked to address the challenges introduced by the presence of self-represented parties, agencies have increasingly begun to focus on issues relating to self-representation only in recent years. Agencies are undertaking numerous efforts to accommodate self-represented parties in their adjudication processes.
Challenges related to self-represented parties in administrative proceedings can be broken down into two main categories: Those pertaining to the efficiency of the administrative proceeding and those relating to the outcome of the procedure.
From an efficiency standpoint, self-represented parties' lack of familiarity with agency procedures and administrative processes can cause delay both in individual cases and on a systemic level. Delays in individual cases may arise when self-represented parties fail to appear for scheduled hearings, file paperwork incorrectly or incompletely, do not provide all relevant evidence, or make incoherent or legally irrelevant arguments before an adjudicator. In the aggregate, self-represented parties also may require significant assistance from agency staff in filing their claims and appeals, which can be challenging given agencies' significant resource constraints. Finally, self-represented parties may create challenges for adjudicators, who may struggle to provide appropriate assistance to them while maintaining impartiality and the appearance of impartiality. These problems are exacerbated by the fact that many agencies hear significant numbers of cases by self-represented parties each year.
Self-represented parties also may face suboptimal outcomes in administrative proceedings compared to their represented counterparts, raising issues of fairness. Even administrative procedures that are designed to be handled without trained representation can be challenging for inexperienced parties to navigate, particularly in the face of disability or language or literacy barriers. Furthermore, missed deadlines or hearings may result in a self-represented party's case being dismissed, despite its merits. Self-represented parties often struggle to effectively present their cases and, despite adjudicators' best efforts, may receive worse results than parties with representation.
Civil courts face many of these same efficiency and consistency concerns, and in response have implemented wide-ranging innovations to assist self-represented parties. These new approaches have included in-person self-service centers; workshops explaining the process or helping parties complete paperwork; and virtual services such as helplines accessible via phone, email, text, and chat. Courts have also invested in efforts to make processes more accessible to self-represented parties from the outset, through the development of web resources, e-filing and document assembly programs, and plain language and translation services for forms and other documents. Finally, courts have also used judicial resources and training to support judges and court personnel in their efforts to effectively and impartially support self-represented parties.
These innovations have received extremely positive feedback from parties, and early reports indicate that they improve court efficiency and can yield significant cost savings for the judiciary.
This recommendation builds on the successes of both civil courts and administrative agencies in dealing with self-represented parties and makes suggestions for further improvement. In making this recommendation, the Conference makes no normative judgment on the presence of self-represented parties in administrative proceedings. This recommendation assumes that there will be circumstances in which parties will choose to represent themselves, and seeks to improve the resources available to those parties and the fairness and efficiency of the overall administrative process.
The recommendation is not intended to be one-size-fits-all, and not every recommendation will be appropriate for every administrative agency. To the extent that this recommendation requires additional expenditure of resources by agencies, innovations are likely to pay dividends in increased efficiency and consistency of outcome in the long term.
1. Agencies should consider investigating and implementing triage and diagnostic tools to direct self-represented parties to appropriate resources based on both the complexity of their case and their individual level of need. These tools can be used by self-represented parties themselves for self-diagnosis or can be used by agency staff to improve the consistency and accuracy of information provided.
2. Agencies should strive to develop a continuum of services for self-represented parties, from self-help to one-on-one guidance, that will allow parties to obtain assistance by different methods depending on need. In particular, and depending on the availability of resources, agencies should:
a. Use Web sites to make relevant information available to the public, including self-represented parties and entities that assist them, to access and expand e-filing opportunities;
b. Continue efforts to make forms and other important materials accessible to self-represented parties by providing them at the earliest possible stage in the proceeding in plain language, in both English and in other languages as needed, and by providing effective assistance for persons with special needs; and
c. Provide a method for self-represented parties to communicate in “real-time” with agency staff or agency partners, as appropriate.
3. Subject to the availability of resources and as permitted by agency statutes and regulations, agencies should provide training for adjudicators for dealing with self-represented parties, including providing guidance for how they should interact with self-represented parties during administrative proceedings. Specifically, training should address interacting with self-represented parties in situations of limited literacy or English proficiency or mental or physical disability.
4. Agencies should strive to collect the following information, subject to the availability of resources, and keeping in mind relevant statutes including the Paperwork Reduction Act, where applicable. Agencies should use the information collected to continually evaluate and revise their services for self-represented parties. In particular, agencies should:
a. Seek to collect data on the number of self-represented parties in agency proceedings. In addition, agencies should collect data on their services for self-represented parties and request program feedback from agency personnel.
b. Seek to collect data from self-represented parties about their experiences during the proceeding and on their use of self-help resources.
c. Strive to keep open lines of communication with other agencies and with civil courts, recognizing that in spite of differences in procedures, other adjudicators have important and transferable insights in working with self-represented parties.
5. In the long term, agencies should strive to re-evaluate procedures with an eye toward accommodating self-represented parties. Proceedings are often designed to accommodate attorneys and other trained professionals. Agencies should evaluate the feasibility of navigating their system for an outsider, and make changes—as allowed by their organic statutes and regulations—to simplify their processes accordingly. Although creation of simplified procedures
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by January 23, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Census Bureau, U.S. Department of Commerce.
Under 44 U.S.C. 3506(e) and 13 U.S.C. Section 9, the U.S. Census Bureau is seeking comments on revisions to the confidentiality pledge it provides to its respondents under Title 13, United States Code, Section 9. These revisions are required by the passage and implementation of provisions of the Federal Cybersecurity Enhancement Act of 2015 (H.R. 2029, Division N, Title II, Subtitle B, Sec. 223), which permit and require the Secretary of Homeland Security to provide Federal civilian agencies' information technology systems with cybersecurity protection for their Internet traffic. More details on this announcement are presented in the
To ensure consideration, written comments must be submitted on or before February 21, 2017.
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 should be directed to Robin J. Bachman, Policy Coordination Office, Census Bureau, HQ-8H028, Washington, DC 20233; 301-763-6440 (or via email at
Federal statistics provide key information that the Nation uses to measure its performance and make informed choices about budgets, employment, health, investments, taxes, and a host of other significant topics. The overwhelming majority of Federal surveys are conducted on a voluntary basis. Respondents, ranging from businesses to households to institutions, may choose whether or not to provide the requested information. Many of the
Under the authority of Title 13, U.S.C. and similar statistical confidentiality protection statutes, many Federal statistical agencies make statutory pledges that the information respondents provide will be seen only by statistical agency personnel or their sworn agents, and will be used only for statistical purposes. Title 13, U.S.C. and similar statutes protect the confidentiality of information that agencies collect solely for statistical purposes and under a pledge of confidentiality. These acts protect such statistical information from administrative, law enforcement, taxation, regulatory, or any other non-statistical use and immunize the information submitted to statistical agencies from legal process. Moreover, many of these statutes carry criminal penalties of a Class E felony (fines up to $250,000, or up to five years in prison, or both) for conviction of a knowing and willful unauthorized disclosure of covered information.
As part of the Consolidated Appropriations Act for Fiscal Year 2016 signed on December 17, 2015, the Congress included the Federal Cybersecurity Enhancement Act of 2015 (H.R. 2029, Division N, Title II, Subtitle B, Sec. 223). This Act, among other provisions, permits and requires the Secretary of Homeland Security to provide Federal civilian agencies' information technology systems with cybersecurity protection for their Internet traffic. The technology currently used to provide this protection against cyber malware is known as Einstein 3A; it electronically searches Internet traffic in and out of Federal civilian agencies in real time for malware signatures.
When such a signature is found, Department of Homeland Security (DHS) personnel shunt the Internet packets that contain the malware signature aside for further inspection. Since it is possible that such packets entering or leaving a statistical agency's information technology system may contain a small portion of confidential statistical data, statistical agencies can no longer promise their respondents that their responses will be seen only by statistical agency personnel or their sworn agents. However, they can promise, in accordance with provisions of the Federal Cybersecurity Enhancement Act of 2015, that such monitoring can be used only to protect information and information systems from cybersecurity risks, thereby, in effect, providing stronger protection to the integrity of the respondents' submissions.
Consequently, with the passage of the Federal Cybersecurity Enhancement Act of 2015, the Federal statistical community has an opportunity to welcome the further protection of its confidential data offered by DHS' Einstein 3A cybersecurity protection program. The DHS cybersecurity program's objective is to protect Federal civilian information systems from malicious malware attacks. The Federal statistical system's objective is to ensure that the DHS Secretary performs those essential duties in a manner that honors the Government's statutory promises to the public to protect their confidential data. Given that the Department of Homeland Security is not a Federal statistical agency, both DHS and the Federal statistical system have been successfully engaged in finding a way to balance both objectives and achieve these mutually reinforcing objectives.
Accordingly, DHS and Federal statistical agencies, in cooperation with their parent departments, have developed a Memorandum of Agreement for the installation of Einstein 3A cybersecurity protection technology to monitor their Internet traffic and have incorporated an associated Addendum on Highly Sensitive Agency Information that provides additional protection and enhanced security handling of confidential statistical data. However, many current Title 13, U.S.C. and similar statistical confidentiality pledges promise that respondents' data will be seen only by statistical agency personnel or their sworn agents. Since it is possible that DHS personnel could see some portion of those confidential data in the course of examining the suspicious Internet packets identified by Einstein 3A sensors, statistical agencies need to revise their confidentiality pledges to reflect this process change.
Therefore, the U.S. Census Bureau is providing this notice to alert the public to the confidentiality pledge revisions in an efficient and coordinated fashion and to request public comments on the revisions. The following section contains the revised confidentiality pledge and a listing of the U.S. Census Bureau's current PRA OMB numbers and information collection titles for the Information Collections whose confidentiality pledges will change to reflect the statutory implementation of DHS' Einstein 3A monitoring for cybersecurity protection purposes.
The following is the revised statistical confidentiality pledge for the Census Bureau's data collections:
The following listing includes Census Bureau information collections which are confidential under 13 U.S.C. Section 9, as well as information collections that the Census Bureau conducts on behalf of other agencies which are confidential under 13 U.S.C. Section 9 and for which the confidentiality pledge will also be revised.
Comments are invited on the necessity and efficacy of the Census Bureau's revised confidentiality pledge above. Comments submitted in response to this notice will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Applications for four new scientific research permits, two permit modifications, and four permit renewals.
Notice is hereby given that NMFS has received ten scientific research permit application requests relating to Pacific salmon, steelhead, eulachon, and green sturgeon. The proposed research is intended to increase knowledge of species listed under the Endangered Species Act (ESA) and to help guide management and conservation efforts. The applications may be viewed online at:
Comments or requests for a public hearing on the applications must be received at the appropriate address or fax number (see
Written comments on the applications should be sent to the Protected Resources Division, NMFS, 1201 NE., Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. Comments may also be sent by email to
Shivonne Nesbit, Portland, OR (ph.: 503-231-6741), email:
The following listed species are covered in this notice:
Chinook salmon (
Coho salmon (
North American green sturgeon (
Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531
Anyone requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see ADDRESSES). Such hearings are held at the discretion of the Assistant Administrator for Fisheries, NMFS.
Dr. James Hobbs, Professor at the University of California in Davis, CA is seeking a five-year research permit to annually take juvenile SRWR and CVSR Chinook, CCC and CCV steelhead, and sDPS green sturgeon in the San Francisco Bay Area and tributaries. The purpose of this research is to determine the degree to which Longfin Smelt use tributaries of San Pablo and San Francisco bays as spawning and rearing habitat. This information would improve the understanding of how bay tributaries contribute to the overall population of Longfin Smelt. Although this study principally targets longfin smelt, SRWR and CVSR Chinook, CCC and CCV steelhead and sDPS green sturgeon may be encountered during sampling. Fish would be captured with beach seines, fyke nets, and trawls (otter and Kodiak). Captured fish would be identified by species, enumerated, and released. A sub-sample of 30 individuals per species would be measured. The researchers do not propose to kill any fish but a small number may die as an unintended result of research activities. This research will enhance the knowledge of the distribution of the species in bay tributaries that have not been previously monitored.
NMFS' Southwest Fisheries Science Center (SWFSC) is seeking a five-year research permit to annually take adult and juvenile CC Chinook, CCC and SONCC coho, NC, S-CCC, SC and CCC steelhead. Sampling would be conducted in California on a variety of coastal salmonid populations. The purposes of this study are to: (1) Estimate population abundance and dynamics; (2) evaluate factors affecting growth, survival, reproduction and life-history patterns; (3) assess life-stage specific habitat use and movement; (4) evaluate physiological performance and tolerance; (5) determine the genetic structure of populations; (6) evaluate the effects of water management and habitat restoration; and (7) develop improved sampling and monitoring methods. The SWFSC proposes to capture fish using backpack electrofishing, hook and line angling, hand and/or dipnets, beach seines, fyke nets, panel, pipe or screw traps, and weirs. The SWFSC also proposes to observe adult and juvenile salmonids during spawning ground surveys and snorkel surveys. Some fish would anesthetized, measured, weighed, tagged (coded wire, elastomer, radio, acoustic, passive integrated transponder (PIT) or sonic), and tissue sampled for genetics identification. Intentional lethal take is proposed to support laboratory experiments using hatchery-origin fish whenever possible to examine fish physiology, environmental tolerance, and as part of
The United States Geological Survey (USGS) is seeking a one-year permit to take juvenile CC, SRWR and CVSR Chinook, CCC coho, CCC, CCV, S-CCC, SC steelhead, and sDPS green sturgeon. The goal of the California Stream Quality Assessment (CSQA) is to assess the quality of streams in California by characterizing multiple water-quality factors that are stressors to aquatic life and evaluating the relation between these stressors and biological communities. Approximately ninety sites would be sampled for up to nine weeks for contaminants, nutrients, and sediment in water. Stream-bed sediment would be collected during the ecological survey for analysis of sediment chemistry and toxicity. Fish would be collected via backpack electrofishing. Captured fish would be held in aerated live wells and buckets and would be identified, enumerated and released. A subset of non-listed fish from each site will be sacrificed for mercury analysis. The researchers do not propose to kill any listed fish but a small number may die as an unintended result of research activities. This research will benefit listed species by providing information about the most critical factors affecting stream quality and thus generate insights about possible approaches to protecting the health of streams in the region.
Stillwater Sciences is seeking a one-year permit to take juvenile SONCC coho in the Salmon and Scott River floodplains (California). Fish would be captured by beach seine or minnow traps. The study is part of a larger comprehensive planning effort that would lead to strategic restoration of floodplains and mine tailings in the Salmon and Scott rivers. The purpose of this research is to assess mercury contamination in fish and invertebrates. Non-listed fish would be collected and sacrificed for tissue testing of mercury contamination. The sampling has the potential to capture juvenile SONCC coho salmon. As part of this project, information would be collected on coho (
The U.S. Fish and Wildlife Service (FWS) is seeking to modify a five-year permit that allows them to annually take juvenile CCV steelhead, juvenile SRWR and CVSR Chinook salmon, and juvenile sDPS green sturgeon at rotary screw traps in the American River in Sacramento County, California. The purposes of this study are to: (1) Assess population-level abundance, production, condition, survival, and outmigration timing of juvenile salmonids; (2) evaluate the effectiveness of restoration actions; and (3) generate data that can be incorporated into life cycle models. Captured fish would be anesthetized, measured, weighed, tagged (acoustic or PIT), have a tissue sample taken, allowed to recover, and released. The modification is requested because the original permit application underestimated the number of CCV steelhead and SRWR and CVSR Chinook salmon that would be caught in the American River. The FWS is requesting a higher take limit and seeking to add green sturgeon because multiple years of trapping data suggest the authorized take limit needs to be adjusted. The researchers would avoid adult salmonids, but some may be encountered as an unintentional result of sampling. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. The project would benefit listed species by providing data that will be used to infer biological responses to ongoing habitat restoration activities, and direct future management activities to enhance the abundance, production, and survival of juvenile salmon and steelhead in the American River.
The SWFSC is seeking to modify a five-year permit that currently allows them to annually take juvenile CCV steelhead, juvenile SRWR and CVSR Chinook salmon. The sampling would take place in the Sacramento River and its tributaries. The purpose of this study is to document the survival, movement, habitat use and physiological capacity of Chinook salmon and steelhead and their predators in the Sacramento River basin. The SWFSC proposes to capture fish using hand and/or dipnets, beach seines, hook and line angling, and both backpack and boat-operated electrofishing. Captured fish would be anesthetized, tagged (sonic, acoustic, or PIT) and released. A subsample would have tissue samples taken. The SWFSC proposes to intentionally kill 50 CVSR juvenile chinook. From these, the researchers would collect otoliths for age/growth analysis, organ tissue for isotope, biochemical, and genomic expression assays and parasite infections. They would also collect stomach contents for diet analysis and tag effects/retention studies. Any CVSR fish that are unintentionally killed would be used in place of the intentional mortalities.
The permit would be modified to include (1) boat electroshocking, (2) PIT-tagging at screw trap locations in lieu of and/or in addition to acoustic tagging, (3) tissue and otolith sampling, and (4) the intentional directed mortality discussed above. The research would benefit the affected species by providing information to support the conservation, restoration, and management of Central Valley salmon stocks.
FISHBIO Environmental is seeking to renew a five-year research permit to take juvenile and adult CCV steelhead and CVSR Chinook in the Merced River (California). The purpose of this study is to obtain data on the habitat needs of fall-run Chinook and to assess the status of steelhead/rainbow trout in the Merced River. Fish would be captured at rotary screw traps and passively observed at a resistance board weir equipped with an infrared camera and during snorkel surveys. Fish captured at the screw traps would be anesthetized, identified by species, measured, weighed and released. A sub-sample of juvenile fall-run Chinook would be marked with a photonic dye to determine trap efficiency. Scale samples would be collected from up to 50 juvenile fall-run Chinook each week and from a small number of juvenile and adult O. mykiss during the season. Although fall-run Chinook are the researchers' primary target, they would also collect data rainbow trout/steelhead. This research would benefit listed salmon by identifying factors that limit fish production in the Merced River.
Normandeau Associates is seeking to renew a five-year research permit to take juvenile and adult CCV steelhead in Lower Putah Creek in the lower Sacramento Basin (California). The purpose of this study is to monitor the distribution and relative abundance of fish populations in lower Putah Creek downstream of the Putah Diversion Dam. Fish would be captured by backpack and boat electrofishing. Captured fish would be identified by species, measured, weighed, allowed to recover, and released. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. This research would benefit listed steelhead by providing information on fish response to river flows and on the distribution and diversity of rainbow trout/steelhead in Putah Creek.
Hagar Environmental Services is seeking to renew a five-year research permit to take juvenile CCC coho, CCC and S-CCC steelhead in the San Lorenzo-Soquel and Salinas subbasins. The purpose of this study is to assess salmonid habitat, presence, and abundance in order to inform watershed management and establish baseline population abundances before habitat conservation measures are implemented. The researchers would use backpack electrofishing and beach seines to capture the fish and would observe them during snorkel surveys. Captured fish would be enumerated, measured, and examined. Scale samples would be taken from a limited subset of individuals. Some salmonids would be PIT-tagged for a mark-recapture abundance estimation and to assess movement patterns. Snorkel surveys would be used in place of capture whenever possible. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. This research would benefit listed species by providing population, distribution and habitat data that will be used to draft a Habitat Conservation Plan for the City of Santa Cruz.
The California Department of Fish and Wildlife (CDFW) is seeking to renew a five-year permit to take adult and juvenile CC Chinook, CCC and SONCC coho, and NC, S-CCC, SC and CCC steelhead. The project goal is to restore salmon and steelhead productivity in coastal California streams through a comprehensive restoration program. The specific goals of this research project are to assess fish abundance and distribution in coastal streams. Fish would be captured by backpack electrofishing, beach seine, minnow traps, and weirs, and they would be observed during snorkel and spawning ground surveys. Some fish would be anesthetized, measured, weighed, tagged, and tissue sampled for genetic information. The researchers do not expect to kill any listed salmonids but a small number may die as an unintended result of the research activities. This research would benefit listed species by providing data to assess restoration projects and direct future habitat restoration needs.
This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the applications, associated documents, and comments submitted to determine whether the applications meet the requirements of section 10(a) of the ESA and Federal regulations.
The final permit decisions will not be made until after the end of the 30-day comment period. NMFS will publish notice of its final action in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the St. George Reef Lighthouse Preservation Society (Society), for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment incidental to conducting aircraft operations, lighthouse renovation, light maintenance activities, and tour operations on the St. George Reef Lighthouse Station on Northwest Seal Rock (NWSR) in the northeast Pacific Ocean. The proposed dates for this action would be February 19, 2017 through February 18, 2018. Pursuant to the Marine Mammal Protection Act, NMFS is requesting comments on its proposal to issue an IHA to the Society to incidentally take, by Level B harassment only, marine mammals during the specified activity.
NMFS must receive comments and information on or before January 23, 2017.
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. The mailbox address for providing email comments is
An electronic copy of the application may be obtained by writing to the address specified above, telephoning the contact listed below (see
The Environmental Assessment (EA) specific to conducting aircraft operations, restoration, and maintenance work on the lighthouse is also available at the same internet address. Information in the EA and this notice collectively provide the environmental information related to the proposed issuance of the IHA for public review and comment. The public may also view documents cited in this notice, by appointment, during regular business hours, at the aforementioned address.
Laura McCue, NMFS, Office of Protected Resources, NMFS (301) 427-8401.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
On October 14, 2016, NMFS received an application from the Society for the taking of marine mammals incidental to restoration, maintenance, and tour operations at St. George Reef Lighthouse (Station) located on Northwest Seal Rock offshore of Crescent City, California in the northeast Pacific Ocean. NMFS determined the application complete and adequate on December 12, 2016.
The Society proposes to conduct aircraft operations, lighthouse renovation, and periodic maintenance on the Station's optical light system on a monthly basis. The proposed activity would occur on a monthly basis over one weekend, November through April. The Society currently has an IHA that is valid through February 18, 2017. This IHA would start on February 19, 2017, to avoid a lapse in authorization, and would be valid for one year. The following specific aspects of the proposed activities would likely to result in the take of marine mammals: Acoustic and visual stimuli from (1) helicopter landings/takeoffs; (2) noise generated during restoration activities (
To date, NMFS has issued five IHAs to the Society for the conduct of the same activities from 2010 to 2016 (75 FR 4774, January 29, 2010; 76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 79 FR 6179, February 3, 2014; and 81 FR 9440, February 23, 2016). This is the Society's sixth request for an annual IHA as their current IHA will expire on February 18, 2017.
The Station, listed in the National Park Service's National Register of Historic Places, is located on NWSR offshore of Crescent City, California in the northeast Pacific Ocean. The Station, built in 1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The structure consists of hundreds of granite blocks topped with a cast iron lantern room and covers much of the surface of the islet. The purpose of the project is to restore the lighthouse, to conduct tours, and to conduct annual and emergency maintenance on the Station's optical light system.
The Society proposes to conduct the activities (aircraft operations, lighthouse restoration, and maintenance activities) at a maximum frequency of one session per month. The proposed duration for each session would last no more than three days (
The Station is located on a small, rocky islet (41°50′24″ N., 124°22′06″ W.) approximately 9 kilometers (km) (6.0 miles (mi)) in the northeast Pacific Ocean, offshore of Crescent City, California (41°46′48″ N.; 124°14′11″ W.). NWSR is approximately 91.4 meters (m) (300 feet (ft)) in diameter that peaks at 5.18 m (17 ft) above mean sea level.
Because NWSR has no safe landing area for boats, the proposed restoration activities would require the Society to transport personnel and equipment from the California mainland to NWSR by a small helicopter. Helicopter landings take place on top of the engine room (caisson) which is approximately 15 m (48 ft) above the surface of the rocks on NWSR. The landing zone has been relocated nearer the edge of the caisson, increasing the distance of the rotor from the lighthouse tower by the required footage. The Society plans to charter a Raven R44 helicopter, owned and operated by Air Shasta Rotor and Wing, LLC. The Raven R44, which seats three passengers and one pilot, is a compact-sized (1134 kilograms (kg), 2500 pounds (lbs)) helicopter with two-bladed main and tail rotors. Both sets of rotors are fitted with noise-attenuating blade tip caps that would decrease flyover noise.
The Society proposes to transport no more than 15 work crew members and equipment to NWSR for each session and estimates that each session would require no more than 34 helicopter landings/takeoffs per month (see below for number per day). During landing, the helicopter would land on the caisson to allow the work crew members to disembark and retrieve their equipment located in a basket attached to the underside of the helicopter. The helicopter would then return to the mainland to pick up additional personnel and equipment.
Proposed schedule: The Society would conduct a maximum of 16 flights (8 arrivals and eight departures) for the first day. The first flight would depart from Crescent City Airport at approximately 9 a.m. for a 6-minute flight to NWSR. The helicopter would land and takeoff immediately after offloading personnel and equipment every 20 minutes (min). The total duration of the first day's aerial operations could last for approximately three hours (hrs) and 26 min and would end at approximately 12:34 p.m. Crew members would remain overnight at the Station and would not return to the mainland on the first day.
For the second day, the Society would conduct a maximum of 10 flights (five arrivals and five departures) to transport additional materials on and off the islet,
For the final day of operations, the Society could conduct a maximum of eight helicopter flights (four arrivals and four departures) to transport the remaining crew members and equipment/material back to the Crescent City Airport. The total duration of the third day's helicopter operations in support of restoration could last up to two hrs and 14 min.
Restoration and maintenance activities would involve the removal of peeling paint and plaster, restoration of interior plaster and paint, refurbishing structural and decorative metal, reworking original metal support beams throughout the lantern room and elsewhere, replacing glass as necessary, upgrading the present electrical system; and annual light beacon maintenance.
If the beacon light fails, the Society proposes to send a crew of two to three people to the Station by helicopter to repair the beacon light. For each emergency repair event, the Society proposes to conduct a maximum of four flights (two arrivals and two departures) to transport equipment and supplies. The helicopter may remain on site or transit back to shore and make a second landing to pick up the repair personnel.
In the case of an emergency repair between May 1, 2016, and October 31, 2016, the Society would consult with the NMFS' Westcoast Regional Office (WRO) biologists to best determine the timing of the trips to the lighthouse, on a case-by-case basis, based upon the existing environmental conditions and the abundance and distribution of any marine mammals present on NWSR. The regional biologists would have real-time knowledge regarding the animal use and abundance of the NWSR at the time of the repair request and would make a decision regarding when the Society could conduct trips to the lighthouse during the emergency repair time window that would have the least practicable adverse impact to marine mammals. The WRO biologists would also ensure that the Society's request for incidental take during emergency repairs would not exceed the number of incidental take authorized in the proposed IHA.
NMFS expects that acoustic stimuli resulting from the proposed helicopter operations; noise from maintenance and restoration activities; and human presence have the potential to harass marine mammals, incidental to the conduct of the proposed activities.
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this notice. Sound pressure is the sound force per unit area, and is usually measured in micropascals (μPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is the ratio of a measured sound pressure and a reference level. The commonly used reference pressure is 1 μPa for under water, and the units for SPLs are dB re: 1 μPa. The commonly used reference pressure is 20 μPa for in air, and the units for SPLs are dB re: 20 μPa.
SPL (in decibels (dB)) = 20 log (pressure/reference pressure).
SPL is an instantaneous measurement expressed as the peak, the peak-peak, or the root mean square (rms). Root mean square is the square root of the arithmetic average of the squared instantaneous pressure values. All references to SPL in this document refer to the rms unless otherwise noted. SPL does not take into account the duration of a sound.
Noise testing performed on the R44 Raven Helicopter, as required for Federal Aviation Administration approval, required an overflight at 150 m (492 ft) above ground level, 109 knots and a maximum gross weight of 1,134 kg (2,500 lbs). The noise levels measured on the ground at this distance and speed were 81.9 dB re: 20 μPa (A-weighted) for the model R44 Raven I, or 81.0 dB re: 20 μPa (A-weighted) for the model R44 Raven II (NMFS, 2007).
Based on this information, we expect that the received sound levels at the landing area on the Station's caisson would increase above 81-81.9 dB re: 20 μPa (A-weighted).
Any noise associated with these activities is likely to be from light construction (
Table 1 provides the following information: All marine mammal species with possible or confirmed occurrence in the proposed activity area; information on those species' regulatory status under the MMPA and the Endangered Species Act (ESA) of 1973 (16 U.S.C. 1531
Steller sea lions consist of two distinct population segments: The western and eastern distinct population segments (eDPS and wDPS, respectively) divided at 144° West longitude (Cape Suckling, Alaska). The western segment of Steller sea lions inhabit central and western Gulf of Alaska, Aleutian Islands, as well as coastal waters and breed in Asia (
Steller sea lions range along the North Pacific Rim from northern Japan to California (Loughlin
The eDPS of Steller sea lions breeds on rookeries located in southeast Alaska, British Columbia, Oregon, and California. There are no rookeries located in Washington State. Steller sea lions give birth in May through July and breeding commences a couple of weeks after birth. Pups are weaned during the winter and spring of the following year.
Despite the wide-ranging movements of juveniles and adult males in particular, exchange between rookeries by breeding adult females and males (other than between adjoining rookeries) appears low, although males have a higher tendency to disperse than females (Trujillo
Steller sea lion numbers at NWSR ranged from 20 to 355 animals (CCR 2001). Counts of Steller sea lions during the spring (April-May), summer (June-August), and fall (September-October), averaged 68, 110, and 56, respectively (CCR 2001). A multi-year survey at NWSR between 2000 and 2004 showed Steller sea lion numbers ranging from 175 to 354 in July (M. Lowry, NMFS/SWFSC, unpubl. data). The Society presumes that winter use of NWSR by Steller sea lion to be minimal, due to inundation of the natural portion of the island by large swells.
For the 2010 season, the Society reported that no Steller sea lions were present in the vicinity of NWSR during restoration activities (SGRLPS 2010). Based on the monitoring report for the 2011 season, the maximum numbers of Steller sea lions present during the April and November 2011, work sessions was 2 and 150 animals, respectively (SGRLPS 2012). During the 2012 season, the Society did not observe any Steller sea lions present on NWSR during restoration activities. The Society did not conduct any operations for the 2013-2014, 2014-2015, and 2015-2016 seasons.
The estimated population of the U.S. stock of California sea lion is approximately 296,750 animals, with PBR at 9,200 individuals, and the current maximum population growth rate is 12 percent (Carretta
California sea lion breeding areas are on islands located in southern California, in western Baja California, Mexico, and the Gulf of California. During the breeding season, most California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to the San Miguel Islands and the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente (Carretta
Adult and juvenile males will migrate as far north as British Columbia, Canada while females and pups remain in southern California waters in the non-breeding season. In warm water (El Niño) years, some females range as far north as Washington and Oregon, presumably following prey.
Crescent Coastal Research (CCR) conducted a three-year (1998-2000) survey of the wildlife species on NWSR for the Society. They reported that counts of California sea lions on NWSR varied greatly (from 6 to 541) during the observation period from April 1997 through July 2000. CCR reported that counts for California sea lions during the spring (April-May), summer (June-August), and fall (September-October), averaged 60, 154, and 235, respectively (CCR 2001).
The most current counts for the month of July by NMFS (2000 through 2004) have been relatively low as the total number of California sea lions recorded in 2000 and 2003 was three and 11, respectively (M. Lowry, NMFS, SWFSC, unpublished data). Based on the monitoring report for the 2011 season, the maximum numbers of California sea lions present during the April and November, 2011 work sessions was 2 and 160 animals, respectively (SGRLPS 2012). There were no California sea lions present during the March, 2012 work session (SGRLPS 2012).
Northern fur seals occur from southern California north to the Bering Sea and west to the Sea of Okhotsk and Honshu Island of Japan. NMFS
Northern fur seals breed in Alaska and migrate along the west coast during fall and winter. Due to their pelagic habitat, they are rarely seen from shore in the continental United States, but individuals occasionally come ashore on islands well offshore (
CCR observed one male northern fur seal on Northwest Seal Rock in October, 1998 (CCR 2001). It is possible that a few animals may use the island more often than indicated by the CCR surveys, if they were mistaken for other otariid species (
For the 2010, 2011, and 2012 work seasons, the Society did not observe any Northern fur seals present on NWSR during restoration activities (SGRLPS 2010; 2011; 2012).
Harbor seals are widely distributed in the North Atlantic and North Pacific. Two subspecies exist in the Pacific:
In California, over 500 harbor seal haul out sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry
CCR noted that harbor seal use of NWSR was minimal, with only one sighting of a group of 6 animals, during 20 observation surveys. They hypothesized that harbor seals may avoid the islet because of its distance from shore, relatively steep topography, and full exposure to rough and frequently turbulent sea swells. For the 2010 and 2011 seasons, the Society did not observe any Pacific harbor seals present on NWSR during restoration activities (SGRLPS 2010; 2011). During the 2012 season, the Society reported sighting a total of two harbor seals present on NWSR (SGRLPS 2012).
California (southern) sea otters (
This section includes a summary and discussion of the ways that components (
Acoustic and visual stimuli generated by: (1) Helicopter landings/takeoffs; (2) restoration activities (
Pinnipeds have the potential to be disturbed by airborne and underwater noise generated by the engine of the aircraft (Born
Researchers have demonstrated temporary threshold shift (TTS) in certain captive odontocetes and pinnipeds exposed to strong sounds (reviewed in Southall
There is a dearth of information on acoustic effects of helicopter overflights on pinniped hearing and communication (Richardson
In 2008, NMFS issued an IHA to the USFWS for the take of small numbers of Steller sea lions and Pacific harbor
As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 dB re: 20 μPa) non-pulse sounds often leave haul out areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
It is likely that the initial helicopter approach to NWSR would cause a subset, or all of the marine mammals hauled out to depart the rock and flush into the water. The physical presence of aircraft could also lead to non-auditory effects on marine mammals involving visual or other cues. Airborne sound from a low-flying helicopter or airplane may be heard by marine mammals while at the surface or underwater. In general, helicopters tend to be noisier than fixed wing aircraft of similar size and underwater sounds from aircraft are strongest just below the surface and directly under the aircraft. Noise from aircraft would not be expected to cause direct physical effects, but have the potential to affect behavior. The primary factor that may influence abrupt movements of animals is engine noise, specifically changes in engine noise. Responses by mammals could include hasty dives or turns, change in course, or flushing and stampeding from a haul out site. There are few well documented studies of the impacts of aircraft overflight over pinniped haul out sites or rookeries, and many of those that exist, are specific to military activities (Efroymson
Several factors complicate the analysis of long- and short-term effects for aircraft overflights. Information on behavioral effects of overflights by military aircraft (or component stressors) on most wildlife species is sparse. Moreover, models that relate behavioral changes to abundance or reproduction, and those that relate behavioral or hearing effects thresholds from one population to another are generally not available. In addition, the aggregation of sound frequencies, durations, and the view of the aircraft into a single exposure metric is not always the best predictor of effects and it may also be difficult to calculate. Overall, there has been no indication that single or occasional aircraft flying above pinnipeds in water cause long term displacement of these animals (Richardson
If pinnipeds are present on NWSR, it is likely that a helicopter landing at the Station would cause some number of the pinnipeds on NWSR to flush; however, when present, they appear to show rapid habituation to helicopter landing and departure (CCR, 2001; Guy Towers, SGRLPS,
The appearance of Society personnel may have the potential to cause Level B harassment of marine mammals hauled out on the small island in the proposed action area. Disturbance includes a variety of effects, including subtle to conspicuous changes in behavior, movement, and displacement. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of the Society's restoration personnel (
Reactions to human presence, if any, depend on species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors (Richardson
Disturbances resulting from human activity can impact short- and long-term pinniped haul out behavior (Renouf
In cases where vessels actively approached marine mammals (
In 1997, Henry and Hammil (2001) conducted a study to measure the impacts of small boats (
In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the efficacy of buffer zones for watercraft around harbor seal haul out sites on Yellow Island, Washington. The authors estimated the minimum distance between the vessels and the haul out sites; categorized the vessel types; and evaluated seal responses to the disturbances. During the course of the seven-weekend study, the authors recorded 14 human-related disturbances which were associated with stopped powerboats and kayaks. During these events, hauled out seals became noticeably active and moved into the water. The flushing occurred when stopped kayaks and powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) respectively. The authors note that the seals were unaffected by passing powerboats, even those approaching as close as 128 ft (39 m), possibly indicating that the animals had become tolerant of the brief presence of the vessels and ignored them. The authors reported that on average, the seals quickly recovered from the disturbances and returned to the haul out site in less than or equal to 60 minutes. Seal numbers did not return to pre-disturbance levels within 180 minutes of the disturbance less than one quarter of the time observed. The study concluded that the return of seal numbers to pre-disturbance levels and the relatively regular seasonal cycle in abundance throughout the area counter the idea that disturbances from powerboats may result in site abandonment (Johnson and Acevedo-Gutierrez, 2007). As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 decibels re: 20 μPa) non-pulsed sounds often leave haul out areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
There are other ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. They are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus. These situations are: (1) Falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of pups by large males during a stampede. However, NMFS does not expect any of these scenarios to occur at NWSR. There is the risk of injury if animals stampede towards shorelines with precipitous relief (
The only habitat modification associated with the proposed activity is
The Society would remove all waste, discarded materials and equipment from the island after each visit. The proposed activities will not result in any permanent impact on habitats used by marine mammals, including prey species and foraging habitat. The main impact associated with the proposed activity will be temporarily elevated noise levels and the associated direct effects on marine mammals (
NMFS does not anticipate that the proposed restoration activities would result in any permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat (50 CFR 216.104(a)(11)).
NMFS has carefully evaluated the Society's proposed mitigation measures in the context of ensuring that we prescribe the means of affecting the least practicable impact on the affected marine mammal species and stocks and their habitat. The evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on the evaluation of the Society's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result
The Society submitted a marine mammal monitoring plan in Section 13 of their IHA application. NMFS or the Society may modify or supplement the plan based on comments or new information received from the public during the public comment period.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action (
2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (
3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: The long-term fitness and survival of an individual; or the population, species, or stock (
5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (
6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.
7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.
8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals.
As part of its IHA application, the Society proposes to sponsor marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the proposed IHA. These include:
A NMFS approved, experienced biologist will be present on the first flight of each day of activity. This observer will be able to identify all species of pinnipeds expected to use the island, and qualified to determine age and sex classes when viewing conditions allow. The observer would record data including species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the activities, including location, date, and time of the event. In addition, the Society would record observations regarding the number and species of any marine mammals either observed in the water or hauled out.
Aerial photographic surveys may provide the most accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. The Society should complete aerial photo coverage of the island from the same helicopter used to transport the Society's personnel to the island during restoration trips. The Society would take photographs of all marine mammals hauled out on the island at an altitude greater than 300 m (984 ft) by a skilled photographer, on the first flight of each day of activities. These photographs will be forwarded to a biologist capable of discerning marine mammal species. Data shall be provided to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The original photographs can be made available to us or other marine mammal experts for inspection and further analysis.
Proposed monitoring requirements in relation to the Society's proposed activities would include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the restoration activities, including location, date, and time of the event. In addition, the Society would record observations regarding the number and species of any marine mammals either observed in the water or hauled out.
The Society can add to the knowledge of pinnipeds in the proposed action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of any other marine mammal occurs, and such action may be a result of the Society's activities, the Society would suspend survey activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.
The Society complied with the mitigation and monitoring required under the previous authorizations (2010-2012). They did not conduct any operations for the 2013-2016 seasons. However, in compliance with the 2012 Authorization, the Society submitted a final report on the activities at the Station, covering the period of February 15, 2012 through April 30, 2012. During the effective dates of the 2012 IHA, the Society conducted one work session in March, 2012. The Society's aircraft operations and restoration activities on NWSR did not exceed the activity levels analyzed under the 2012 authorization. During the March 2012 work session, the Society observed two harbor seals hauled out on NWSR. Both animals (a juvenile and an adult) departed the rock, entered the water, and did not return to the Station during the duration of the activities.
The Society would submit a draft report to NMFS' Office of Protected Resources no later than 90 days after the expiration of the proposed IHA, if issued. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the proposed IHA. The Society will submit a final report to the NMFS within 30 days after
The report will describe the operations conducted and sightings of marine mammals near the proposed project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will provide:
1. A summary and table of the dates, times, and weather during all research activities.
2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.
3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the Society's activities.
4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The Society shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Society may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Society discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
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).
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. NMFS expects that the proposed mitigation and monitoring measures would minimize the possibility of injurious or lethal takes. NMFS considers the potential for take by injury, serious injury, or mortality as remote. NMFS expects that the presence of Society personnel could disturb of animals hauled out on NWSR and that the animals may alter their behavior or attempt to move away from the Society's personnel.
As discussed earlier, NMFS assumes that pinnipeds that move greater than two body lengths to longer retreats over the beach, or if already moving, a change of direction of greater than 90 degrees in response to the presence of surveyors, or pinnipeds that flush into the water, are behaviorally harassed, and thus subject to Level B taking (Table 2).
Based on the Society's previous monitoring reports, NMFS estimates that approximately 2880 California sea lions (calculated by multiplying the maximum number California sea lions present on NWSR (160) by 18 days of the restoration and maintenance activities), 2700 Steller sea lions (NMFS' estimate of the maximum number of Steller sea lions that could be present on NWSR (150) by 18 days of activity), 108 Pacific harbor seals (calculated by multiplying the maximum number of harbor seals present on NWSR (6) by 18 days), and 18 Northern fur seals (calculated by multiplying the maximum number of northern fur seals present on NWSR (1) by 18 days) could be potentially affected by Level B behavioral harassment over the course of the IHA. NMFS bases these estimates of the numbers of marine mammals that might be affected on consideration of the number of marine mammals that could be disturbed appreciably by approximately 51 hours of aircraft operations during the course of the activity. These incidental harassment take numbers represent less than one percent of the affected stocks of California sea lions, Pacific harbor seals, and Northern fur seals, and less than five percent of the stock of Steller sea lions (Table 3). However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities.
Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area, NMFS does not expect any injury or mortality to pinnipeds to occur and NMFS has not authorized take by Level A harassment for this proposed activity.
The Society would share observations and counts of marine mammals and all observed disturbances to the appropriate state and federal agencies at the conclusion of the survey.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (
Although the Society's survey activities may disturb a small number of marine mammals hauled out on NWSR, NMFS expects those impacts to occur to a small, localized group of animals for a limited duration (
The Society's activities would occur during the least sensitive time (
Moreover, the Society's mitigation measures regarding helicopter approaches and restoration site ingress and egress would minimize the potential for stampedes and large-scale movements. Thus, the potential for large-scale movements and stampede leading to injury, serious injury, or mortality is low.
Any noise attributed to the Society's proposed helicopter operations on NWSR would be short-term (approximately six min per trip). We would expect the ambient noise levels to return to a baseline state when helicopter operations have ceased for the day. As the helicopter landings take place 15 m (48 ft) above the surface of the rocks on NWSR, NMFS presumes that the received sound levels would increase above 81-81.9 dB re: 20 μPa (A-weighted) at the landing pad. However, we do not expect that the increased received levels of sound from the helicopter would cause TTS or PTS because the pinnipeds would flush before the helicopter approached NWSR; thus increasing the distance between the pinnipeds and the received sound levels on NWSR during the proposed action.
If pinnipeds are present on NWSR, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from NWSR due to the pinnipeds temporarily moving from the rocks and lower structure of the Station into the sea due to the noise and appearance of helicopter during approaches and departures. It is expected that all or a portion of the marine mammals hauled out on the island will depart the rock and slowly move into the water upon initial helicopter approaches. The movement to the water would be gradual due to the required controlled helicopter approaches (see
Sea lions have shown habituation to helicopter flights within a day at the project site and most animals are expected to return soon after helicopter activities cease for that day. By clustering helicopter arrival/departures within a short time period, we expect animals present to show less response to subsequent landings. NMFS anticipates no impact on the population size or breeding stock of Steller sea lions, California sea lions, Pacific harbor seals, or Northern fur seals.
In summary, NMFS anticipates that impacts to hauled-out pinnipeds during the Society's proposed helicopter operations and restoration/maintenance activities would be behavioral harassment of limited duration (
As mentioned previously, NMFS estimates that the Society's proposed activities could potentially affect, by Level B harassment only, four species of marine mammal under our jurisdiction. For each species, these estimates are small numbers (less than one percent of the affected stocks of California sea lions, Pacific harbor seals, and Northern fur seals, and less than five percent of the stock of Steller sea lions) relative to the population size (Table 3).
Based on the analysis contained in this notice of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that the Society's proposed activities would take small numbers of marine mammals relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
NMFS does not expect that the Society's proposed helicopter operations and restoration/maintenance activities would affect any species listed under the ESA. Therefore, NMFS has determined that a Section 7 consultation under the ESA is not required.
To meet our NEPA requirements for the issuance of an IHA to the Society, NMFS has prepared an EA specific to conducting aircraft operations and restoration and maintenance work on the St. George Reef Light Station. The EA, titled “Issuance of an Incidental Harassment Authorization to Take Marine Mammals by Harassment Incidental to Conducting Aircraft Operations, Lighthouse Restoration and Maintenance Activities, and Tour Operations on St. George Reef Lighthouse Station in Del Norte County, California,” evaluated the impacts on the human environment of our authorization of incidental Level B harassment resulting from the specified activity in the specified geographic region. An electronic copy of the EA and the Finding of No Significant Impact (FONSI) for this activity is available on the Web site at:
As a result of these preliminary determinations, NMFS proposes issuing an IHA to the Society for conducting helicopter operations and maintenance and restoration activities on the St. George Lighthouse Station in the northeast Pacific Ocean, February 19, 2017 through February 18, 2018, provided they incorporate the previously mentioned mitigation, monitoring, and reporting requirements.
This section contains the draft text for the proposed IHA. NMFS proposes to include this language in the IHA, if issued.
The St. George Reef Lighthouse Preservation Society (Society), P.O. Box 577, Crescent City, CA 95531, is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)(D)) and 50 CFR 216.107, to harass marine mammals incidental to conducting helicopter operations and restoration and maintenance work on the St. George Reef Light Station (Station) on Northwest Seal Rock (NWSR) in the Northeast Pacific Ocean.
1. This Incidental Harassment Authorization (IHA) is valid from February 19, 2017 through February 18, 2018. The Society may not conduct operations from May 1, 2017 through October 31, 2017.
2. This IHA is valid only for activities associated with helicopter operations, lighthouse restoration and maintenance activities, and human presence (See items 2(a)-(d)) on the Station on NWSR (41°50′24″ N., 124°22′06″ W.) in the Northeast Pacific Ocean.
a. The use of a small, compact, 4-person helicopter with two-bladed main and tail rotors fitted with noise-attenuating blade tip caps to transit to and from NWSR;
b. Restoration activities (
c. Maintenance activities (
d. Emergency repair events (
e. Human presence.
a. A copy of this IHA must be in the possession of the Society, its designees, and work crew personnel operating under the authority of this IHA.
b. The species authorized for taking are the California sea lion (
c. The taking, by Level B harassment only, is limited to the species listed in condition 3(b). Authorized take: California sea lion (2880); Steller sea lion (2790); Pacific harbor seal (36); and northern fur seal (18).
d. The taking by Level A harassment, injury or death of any of the species listed in item 3(b) of the IHA or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
e. In the case of an emergency repair event (
a. The Westcoast Region NMFS marine mammal biologist will make a decision regarding when the Society can schedule helicopter trips to the NWSR during the emergency repair time window and will ensure that such operations will have the least practicable adverse impact to marine mammals.
b. The ARA, Westcoast Region, NMFS will also ensure that the Society's request for incidental take during an emergency repair event would not exceed the number of incidental take authorized in this IHA.
The holder of this IHA is required to cooperate with the NMFS and any other Federal, state, or local agency authorized to monitor the impacts of the activity on marine mammals.
In order to ensure the least practicable impact on the species listed in condition 3(b), the holder of this IHA is required to:
a. Conduct restoration and maintenance activities at the Station at a maximum of one session per month between February 19, 2017 and February 18, 2018. Each restoration session will be no more than three days in duration. Maintenance of the light beacon will occur only in conjunction with the monthly restoration activities.
b. Ensure that helicopter approach patterns to the NWSR will be such that the timing techniques are least disturbing to marine mammals. To the extent possible, the helicopter should approach NWSR when the tide is too high for the marine mammals to haul out on NWSR.
c. Avoid rapid and direct approaches by the helicopter to the station by approaching NWSR at a relatively high altitude (
d. Provide instructions to the Society's members, the restoration crew, and if applicable, to tourists, on appropriate conduct when in the vicinity of hauled-out marine mammals. The Society's members, the restoration crew, and if applicable, tourists, will avoid making unnecessary noise while on NWSR and must not view pinnipeds around the base of the Station.
e. Ensure that the door to the Station's lower platform shall remain closed and barricaded at all times.
The holder of this IHA is required to:
a. Have a NMFS-approved experienced biologist will be present on the first flight of each day of activities.
b. Record the date, time, and location (or closest point of ingress) of each visit to the NWSR.
c. Collect the following information for each visit:
i. Information on the numbers (by species) of marine mammals observed during the activities;
ii. The estimated number of marine mammals (by species) that may have been harassed during the activities;
iii. Any behavioral responses or modifications of behaviors that may be attributed to the specific activities (
iv. Information on the weather, including the tidal state and horizontal visibility.
d. Employ a skilled, aerial photographer to document marine mammals hauled out on NWSR.
i. The photographer will complete a photographic survey of NWSR using the same helicopter that will transport Society personnel to the island during restoration trips.
ii. Photographs of all marine mammals hauled-out on the island shall be taken at an altitude greater than 300 m (984 ft) during the first arrival flight to NWSR.
iii. The Society and/or its designees will forward the photographs to a biologist capable of discerning marine mammal species. The Society shall provide the data to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The Society will make available the original photographs to NMFS or to other marine mammal experts for inspection and further analysis.
Final Report: The holder of this IHA is required to submit a draft monitoring report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 13th Floor, Silver Spring, MD 20910, no later than 90 days after the project is completed. The report must contain the following information:
a. A summary of the dates, times, and weather during all helicopter operations, restoration, and maintenance activities.
b. Species, number, location, and behavior of any marine mammals, observed throughout all monitoring activities.
c. An estimate of the number (by species) of marine mammals that are known to have been exposed to visual and acoustic stimuli associated with the helicopter operations, restoration, and maintenance activities.
d. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury, or mortality (
The report must include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The Society shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act compliance. The Society may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Society discovers an injured or dead marine mammal, and the observer determines that the cause of the injury or death is unknown and the death is relatively recent (
The report must include the same information identified in the paragraph above. Activities may continue while we review the circumstances of the incident. We will work with the Society to determine whether modifications in the activities are appropriate.
In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
The Society's staff will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us.
NMFS requests comments on our analysis, the draft IHA, and any other aspect of this notice of proposed IHA for the proposed activities. Please include any supporting data or literature citations with your comments to help inform our final decision on the Society's request for an IHA.
Notice; request for nominations.
Nominations are being sought for appointment by the Secretary of Commerce to fill vacancy openings on the Marine Fisheries Advisory Committee (MAFAC or Committee) that will be pending late April 2017. MAFAC is the only Federal advisory committee with the responsibility to advise the Secretary of Commerce (Secretary) on all matters concerning living marine resources that are the responsibility of the Department of Commerce. The Committee makes recommendations to the Secretary to assist in the development and implementation of Departmental regulations, policies, and programs critical to the mission and goals of NMFS. Nominations are encouraged from all interested parties involved with or representing interests affected by NMFS actions in managing living marine resources. Nominees should possess demonstrable expertise in a field related to the management of living marine resources and be able to fulfill the time commitments required for two annual meetings and year round subcommittee work. Individuals serve for a term of three years for no more than two consecutive terms if re-appointed. NMFS is seeking qualified nominees to fill upcoming vacancies being created by term limits.
Nominations must be postmarked or have an email date stamp on or before February 6, 2017.
Nominations should be sent to Heidi Lovett, MAFAC Assistant Director, NMFS Office of Policy, 14th Floor, 1315 East-West Highway, Silver Spring, MD 20910.
Heidi Lovett, MAFAC Assistant Director; (301) 427-8034; email:
The MAFAC was approved by the Secretary on December 28, 1970, and subsequently chartered under the Federal Advisory Committee Act, 5 U.S.C. App. 2, on February 17, 1971. The Committee meets twice a year with supplementary subcommittee meetings as determined necessary by the Committee Chair and Subcommittee Chairs. No less than 15 and no more than 21 individuals may serve on the Committee. Membership is comprised of highly qualified, diverse individuals representing commercial, recreational, subsistence, and aquaculture fisheries interests; seafood industry; environmental organizations; academic institutions; tribal and consumer groups; and other living marine resource interest groups from a balance of U.S. geographical regions, including the Western Pacific and Caribbean.
A MAFAC member cannot be a Federal employee, member of a Regional Fishery Management Council, registered Federal lobbyist, State employee, or agent of a foreign principal. Selected candidates must pass a security check and submit a financial disclosure form. Membership is voluntary, and except for reimbursable travel and related expenses, service is without pay.
Each nomination submission should include the nominee's name, a cover letter describing the nominee's qualifications and interest in serving on the Committee, curriculum vitae or resume of the nominee, and no more than three supporting letters describing the nominee's qualifications and interest in serving on the Committee. Self-nominations are acceptable. The following contact information should accompany each nominee's submission: Name, address, telephone number, fax number, and email address (if available).
Nominations should be sent to Heidi Lovett (see
Notice of a public meeting.
The North Pacific Fishery Management Council (Council) Groundfish Plan Team will hold a two day meeting.
The meeting will be begin at 9 a.m. on Wednesday January 11, 2017, and end at 5 p.m. on Thursday January 12, 2017, to view the agenda see
The meeting will be held at the Alaska Fishery Science Center Traynor Room 2076, 7600 Sand Point Way NE., Building 4, Seattle, WA 98115.
Diana Stram or Jim Armstrong, Council staff; telephone: (907) 271-2809.
The Agenda is subject to change, and the latest version will be posted, at
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 business days prior to the meeting date.
16 U.S.C. 1801
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the Procurement List.
The Committee is proposing to add services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products previously furnished by such agencies.
Comments must be received on or before—1/22/2017.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following products are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.