| Page Range | 17601-18445 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 17689 - Sunshine Act Notice | |
| 81 FR 17767 - Notice of order soliciting community proposals | |
| 81 FR 17752 - Sunshine Act Meeting; Correction | |
| 81 FR 17739 - Request for Comments on Category Management Policy 16-2: Improving the Acquisition and Management of Common Information Technology: Mobile Devices and Services | |
| 81 FR 17665 - Certain Petroleum Wax Candles From the People's Republic of China: Final Results of Expedited Fourth Sunset Review of the Antidumping Duty Order | |
| 81 FR 17697 - Applicability Determination Index (ADI) Data System Recent Posting: Agency Applicability Determinations, Alternative Monitoring Decisions, and Regulatory Interpretations Pertaining to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and the Stratospheric Ozone Protection Program | |
| 81 FR 17755 - 60-Day Notice of Proposed Information Collection: Electronic Diversity Visa Entry Form | |
| 81 FR 17754 - 60-Day Notice of Proposed Information Collection: Statement of Consent: Issuance of a U.S. Passport to a Minor Under Age 16 | |
| 81 FR 17753 - 60-Day Notice of Proposed Information Collection: Statement of Exigent/Special Family Circumstances for Issuance of a U.S. Passport to a Minor Under Age 16 | |
| 81 FR 17754 - Culturally Significant Objects Imported for Exhibition Determinations: “High Society: The Portraits of Franz X. Winterhalter” Exhibition | |
| 81 FR 17755 - Notice of Public Meeting | |
| 81 FR 17694 - Agency Information Collection Activities; Proposed New Collection (EPA ICR No. 2532.01); Comment Request | |
| 81 FR 17696 - Notice of a Public Meeting and Webinar: Managing Cyanotoxins in Drinking Water | |
| 81 FR 17690 - Quadrennial Energy Review: Notice of Public Meeting | |
| 81 FR 17758 - Agency Information Collection Activities: Notice of Request for Approval of a New Information Collection | |
| 81 FR 17735 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; National Park Service Institutional Animal Care and Use Committee (NPS IACUC) Amendment, Annual Review, Exhibition, and General Submission Forms | |
| 81 FR 17619 - Proposed Establishment of Temporary Restricted Areas R-2509E, R-2509W, and R-2509N; Twentynine Palms, CA | |
| 81 FR 17756 - Guidance on the Procedures and Process To Petition the Secretary Under the Airport and Airway Improvement Act | |
| 81 FR 17729 - Renewal of Approved Information Collection; OMB Control No. 1004-0121 | |
| 81 FR 17732 - Renewal of Approved Information Collection | |
| 81 FR 17687 - Proposed Collection; Comment Request | |
| 81 FR 17686 - Proposed Information Collection; Comment Request | |
| 81 FR 17693 - Application To Export Electric Energy; Intercom Energy, Inc. | |
| 81 FR 17693 - Application To Export Electric Energy; Cargill Power Markets, LLC | |
| 81 FR 17692 - Application To Export Electric Energy; Cargill Power Markets, LLC | |
| 81 FR 17689 - Notice of Public Meeting To Inform the Design of a Consent-Based Siting Process for Nuclear Waste Storage and Disposal Facilities | |
| 81 FR 17690 - Notice of Public Meeting To Inform the Design of a Consent-Based Siting Process for Nuclear Waste Storage and Disposal Facilities | |
| 81 FR 17694 - Notice of Public Meeting To Inform the Design of a Consent-Based Siting Process for Nuclear Waste Storage and Disposal Facilities | |
| 81 FR 17601 - Investment and Deposit Activities-Bank Notes | |
| 81 FR 17610 - Fees | |
| 81 FR 17712 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 17617 - Technology Transitions, Policies and Rules Governing Retirement of Copper Loops by Incumbent Local Exchange Carriers and Special Access for Price Cap Local Exchange Carriers; Correction | |
| 81 FR 17739 - National Industrial Security Program Policy Advisory Committee (NISPPAC) | |
| 81 FR 17739 - Freedom of Information Act (FOIA) Advisory Committee; Meeting | |
| 81 FR 17760 - Decision That Nonconforming Model Year 2014 Mercedes-Benz SLK Class Passenger Cars Are Eligible for Importation | |
| 81 FR 17763 - Chrysler Group LLC, Grant of Petition for Decision of Inconsequential Noncompliance | |
| 81 FR 17764 - Nitto Tire U.S.A, Inc., Grant of Petition for Decision of Inconsequential Noncompliance | |
| 81 FR 17688 - Notice of Public Meetings for the Draft Environmental Impact Statement for the Disposal and Reuse of Surplus Property at Naval Station Newport, Rhode Island | |
| 81 FR 17786 - Agency Information Collection Activities; Revision of an Approved Information Collection; Submission for OMB Review; Annual Company-Run Stress Test Reporting Template and Documentation for Covered Institutions With Total Consolidated Assets of $10 Billion to $50 Billion Under the Dodd-Frank Wall Street Reform and Consumer Protection Act | |
| 81 FR 17766 - Transportation Research and Development Strategic Plan | |
| 81 FR 17720 - Notice of Intent To Prepare a Programmatic Environmental Impact Statement To Review the Federal Coal Program and To Conduct Public Scoping Meetings | |
| 81 FR 17663 - Pacific Northwest National Scenic Trail Advisory Council | |
| 81 FR 17663 - Shasta County Resource Advisory Committee | |
| 81 FR 17604 - New Animal Drugs; Approval of New Animal Drug Applications; Changes of Sponsorship | |
| 81 FR 17716 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
| 81 FR 17718 - Sport Fishing and Boating Partnership Council | |
| 81 FR 17782 - Request for Comments | |
| 81 FR 17682 - Market Risk Advisory Committee | |
| 81 FR 17617 - Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 610 in the Gulf of Alaska | |
| 81 FR 17639 - Medication Assisted Treatment for Opioid Use Disorders | |
| 81 FR 17713 - FDIC Systemic Resolution Advisory Committee; Notice of Meeting | |
| 81 FR 17664 - Notice of Public Meeting of the Oklahoma Advisory Committee To Discuss a Draft Report Regarding the Civil Rights Impact of School Disciplinary Policies That May Contribute to High Rates of Juvenile Incarceration in Oklahoma | |
| 81 FR 17664 - Notice of Public Meeting of the Kansas Advisory Committee To Review Testimony Regarding Civil Rights and Voting Requirements in the State | |
| 81 FR 17683 - Gree Electric Appliances, Inc. of Zhuhai, Hong Kong Gree Electric Appliances Sales Co., Ltd., and Gree USA Sales, Ltd., Provisional Acceptance of a Settlement Agreement and Order | |
| 81 FR 17740 - Agency Information Collection Activities: Proposed Collection; Comment Request; Investment and Deposit Activities | |
| 81 FR 17756 - Notice of Rail Energy Transportation Advisory Committee Meeting | |
| 81 FR 17710 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 81 FR 17716 - National Advisory Council for Healthcare Research and Quality: Request for Nominations for Public Members | |
| 81 FR 17714 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 81 FR 17708 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 81 FR 17709 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 17719 - Advisory Council on Wildlife Trafficking | |
| 81 FR 17740 - Integrated Action Plan To Modernize Digital Instrumentation and Controls Regulatory Infrastructure | |
| 81 FR 17738 - Avi Weisfogel, D.D.S.; Decision and Order | |
| 81 FR 17734 - Notice of Inventory Completion: University of South Alabama, Center for Archaeological Studies, Mobile, AL | |
| 81 FR 17666 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Subsea Cable-Laying Operations in the Bering, Chukchi, and Beaufort Seas | |
| 81 FR 17736 - Notice of Inventory Completion: Kamehameha Schools and University of Hawai'i at Hilo, Hilo, HI | |
| 81 FR 17736 - Notice of Inventory Completion: Sheriff's Office, Berrien County, Saint Joseph, MI | |
| 81 FR 17714 - Notice of Filing of Complaint and Assignment | |
| 81 FR 17637 - Procedures Relating to the Disposition of Property Acquired by the United States Postal Service Office of Inspector General for Use as Evidence | |
| 81 FR 17717 - Louisiana; Amendment No. 2 to Notice of a Major Disaster Declaration | |
| 81 FR 17741 - NexPoint Capital, Inc., et al.; Notice of Application | |
| 81 FR 17749 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Amending NYSE Arca Equities Rule 7.31P(h) To Add a New Discretionary Pegged Order | |
| 81 FR 17746 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 6.2 To Create a Reserve Market Maker Options Trading Permit | |
| 81 FR 17752 - Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE MKT LLC; Order Granting an Extension to Limited Exemptions From Rule 612(c) of Regulation NMS in Connection With the Exchanges' Retail Liquidity Programs Until August 31, 2016 | |
| 81 FR 17752 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting an Extension to Limited Exemption From Rule 612(c) of Regulation NMS in Connection With the Exchange's Retail Liquidity Program Until August 31, 2016 | |
| 81 FR 17765 - Oil Spill Response Planning Workshop | |
| 81 FR 17717 - Louisiana; Amendment No. 1 to Notice of a Major Disaster Declaration | |
| 81 FR 17717 - Louisiana; Major Disaster and Related Determinations | |
| 81 FR 17615 - Suspension of Community Eligibility | |
| 81 FR 17761 - General Motors, LLC, Grant of Petition for Decision of Inconsequential Noncompliance | |
| 81 FR 17728 - Renewal of Approved Information Collection | |
| 81 FR 17732 - Renewal of Approved Information Collection; Control No. 1004-0001 | |
| 81 FR 17733 - Notice of Availability and Request for Comments on Draft Director's Order #21 Concerning National Park Service Policies and Procedures Governing Philanthropic Partnerships | |
| 81 FR 17730 - Renewal of Approved Information Collection; Control No. 1004-0114 | |
| 81 FR 17696 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Regional Haze Regulations (Renewal) | |
| 81 FR 17611 - Salicylaldehyde; Exemption From the Requirement of a Tolerance | |
| 81 FR 17603 - Amendment of Class D Airspace and Class E Airspace; Lynchburg, VA | |
| 81 FR 17602 - Amendment of Class D Airspace and Class E Airspace for the Following New York Towns; Ithaca, NY; Poughkeepsie, NY | |
| 81 FR 17635 - Safety Zone; Louisiana Dragon Boat Race, Red River Mile Marker, (MM) 88.0 to (MM) 88.5 | |
| 81 FR 17621 - Administrative Claims | |
| 81 FR 18389 - Medicaid and Children's Health Insurance Programs; Mental Health Parity and Addiction Equity Act of 2008; the Application of Mental Health Parity Requirements to Coverage Offered by Medicaid Managed Care Organizations, the Children's Health Insurance Program (CHIP), and Alternative Benefit Plans | |
| 81 FR 18111 - Leasing of Sulfur or Oil and Gas in the Outer Continental Shelf | |
| 81 FR 17789 - Endangered and Threatened Wildlife and Plants; Designation and Nondesignation of Critical Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 Species | |
| 81 FR 18177 - Flight Simulation Training Device Qualification Standards for Extended Envelope and Adverse Weather Event Training Tasks |
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Navy Department
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Drug Enforcement Administration
Information Security Oversight Office
Office of Government Information Services
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Comptroller of the Currency
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
National Credit Union Administration (NCUA).
Final rule.
The NCUA Board (Board) is finalizing a rule that amends the maturity requirement for bank notes to be permissible investments for federal credit unions (FCUs) by removing the word “original” from the current requirement that bank notes have “original weighted average maturities of less than 5 years.”
This rule is effective April 29, 2016.
John Nilles, Senior Capital Markets Specialist, Office of Examination and Insurance, at the above address or telephone (703) 518-6360; or Justin M. Anderson, Senior Staff Attorney, Office of General Counsel, at the above address or telephone (703) 518-6540.
In October 2015, the Board issued a proposed rule to amend the maturity requirement for bank notes to be permissible investments for FCUs by removing the word “original” from the requirement that bank notes have “original weighted average maturities of less than 5 years.”
The Act does not provide authority for FCUs to purchase bank notes that are not deposits. The Act, however, does not define “deposit.” NCUA's long-standing policy has been to use the definition of deposit in the Federal Reserve Board's Regulation D. Regulation D provides, in relevant part, that a liability of a depository institution can be a “deposit” if, among other things: (1) It is insured; (2) it is not subordinated to the claims of depositors; and (3) it has a weighted average maturity of less than five years.
The Board stated in the proposal that removing the word “original” would better align NCUA's requirements for bank notes with the Regulation D definition of a deposit. Further, the Board noted that this amendment would also provide FCUs with some measure of regulatory relief. By removing the word “original,” which ties the bank note's maturity to its original date of issuance, FCUs will be permitted to select from a much larger pool of possible bank note offerings. Specifically, FCUs will be permitted to purchase bank notes that had
The Board received eight comment letters in response to the October 2015 proposal. Generally, all of the commenters supported the rule as proposed. Several of those commenters, however, suggested ways to improve the rule.
One commenter suggested the Board eliminate the maturity requirement for bank notes completely. This commenter suggested that, because there is no statutory requirement for the Board to align the definition of deposit with Regulation D, the Board should define deposit in a way that would allow FCUs to invest in bank notes with any maturities. However, the Federal Reserve Board's Regulation D definition provides sufficient flexibility for FCUs, and maintains safety and soundness in this context. The Board, therefore, will continue to follow NCUA's long-standing policy to use the definition of deposit in Regulation D to determine permissible bank notes that may be purchased by FCUs under the Act.
Another commenter requested the Board issue guidance on concentration limits for FCUs investing in bank notes. The Board notes that there are no regulatory concentration limits on bank notes due to the limited exposure to FCUs that the asset class currently represents.
A final commenter suggested the Board authorize additional investments for FCUs under part 703. This comment raises an issue that is outside the scope of this rulemaking. However, part 703 was included in the Office of General Counsel's review of one-third of NCUA's regulations in 2015. As a result, the Board is considering whether additional amendments to part 703 are warranted. If the Board determines to promulgate such amendments, it will do so in a separate rulemaking.
For the reasons stated above, the Board is adopting as final the proposed amendment without change.
The Regulatory Flexibility Act requires NCUA to prepare an analysis of any significant economic impact a regulation may have on a substantial number of small entities (primarily those under $100 million in assets).
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden or increases an existing burden.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. The final rule does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has, therefore, determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.
NCUA has determined that this final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).
Credit unions, Investments.
For the reasons discussed above, the National Credit Union Administration amends 12 CFR part 703 as follows:
12 U.S.C. 1757(7), 1757(8), and 1757(15).
Federal Aviation Administration (FAA), DOT.
Final rule; delay of effective date, correction.
This action changes the effective date of a final rule published in the
This correction is effective 0901 UTC, May 26, 2016, and the effective date of the rule amending 14 CFR part 71, published on February 4, 2016 (81 FR 5902), is delayed to 0901 UTC May 26, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The
Class D and Class E airspace designations are published in paragraphs 5000, 6002, and 6004, respectively, of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order. These are administrative corrections and do not affect the controlled airspace boundaries or operating requirements supporting operations in the Ithaca and Poughkeepsie, NY areas.
This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
Accordingly, pursuant to the authority delegated to me, in the
On page 5902, column 2, beginning on line 6, remove the following text: “Amendment of Class E Airspace for the following New York Towns; Ithaca, NY; Poughkeepsie, NY” and add in its place “Amendment of Class D and E Airspace for the following New York Towns; Ithaca, NY, Poughkeepsie, NY
On page 5903, column 2, after line 23, add the following text:
That airspace extending upward from the surface to and including 3,600 feet MSL within a 4-mile radius of Ithaca Tompkins Regional Airport. This Class D airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be published continuously in the Airport/Facility Directory.
That airspace extending upward from the surface to and including 2,700 feet MSL within a 4-mile radius of Dutchess County Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Within a 4-mile radius of Ithaca Tompkins Regional Airport and that airspace extending upward from the surface from the 4-mile radius of the airport to the 5.7-mile radius of the airport clockwise from the 329° bearing to the 081° bearing from the airport; that airspace from the 4-mile radius of the airport to the 8.7-mile radius of the airport extending clockwise from the 081° bearing to the 137° bearing from the airport; that airspace from the 4-mile radius of the airport to the 6.6-mile radius of the airport extending clockwise from the 137° bearing to the 170° bearing from the airport; that airspace from the 4-mile radius to the 5.7-mile radius of the airport extending clockwise from the 170° bearing to the 196° bearing from the airport, and that airspace within 2.7 miles each side of the Ithaca VOR/DME 305° radial extending from the 4-mile radius of the airport to 7.4 miles northwest of the Ithaca VOR/DME. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Within a 4-mile radius of the Dutchess County Airport; and that airspace extending upward from the surface within 3.1 miles each side of the Kingston VORTAC 025° radial extending from the VORTAC to 8.3 miles northeast of the VORTAC, and within 1.8 miles each side of the Kingston VORTAC 231° radial extending from the 4-mile radius to 9.2 miles southwest of the VORTAC and within 3.1 miles each side of the Kingston VORTAC 050° radial extending from the VORTAC to 9.2 miles northeast of the VORTAC. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA), DOT.
Final rule; delay of effective date, correction.
This action changes the effective date of a final rule published in the
This correction is effective 0901 UTC, May 26, 2016, and the effective date of the rule amending 14 CFR part 71, published on February 4, 2016 (81 FR 5901), is delayed to 0901 UTC May 26, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The
Class D and Class E airspace designations are published in paragraphs 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order. These are administrative corrections and do not affect the controlled airspace boundaries or operating requirements supporting operations in the Lynchburg, VA area.
This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
Accordingly, pursuant to the authority delegated to me, in the
On page 5901, column 1, line 22, remove the following text: “Amendment of Class E Airspace for Lynchburg, VA” and add in its place: “Amendment of Class D and Class E Airspace; Lynchburg, VA”. On page 5902, column 1, after line 51, add the following text:
That airspace extending upward from the surface to and including 3,400 feet MSL within a 4.5-mile radius of Lynchburg Municipal-Preston Glenn Field Airport, excluding the portion within a .5-mile radius of Falwell Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be published continuously in the Airport/Facility Directory.
That airspace extending upward from the surface within 2.7 miles each side of the Lynchburg VORTAC 020° and 200° radials extending from the 4.5-mile radius of Lynchburg Municipal-Preston Glenn Field Airport to 1 mile south of the VORTAC, and within 1.8 miles each side of the Lynchburg VORTAC 022° radial extending from the 4.5-mile radius of the airport to 11.3 miles northeast of the VORTAC. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be published continuously in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Lynchburg Regional-Preston Glenn Field, and within 2.7 miles each side of the Lynchburg VORTAC 200° radial extending from the 6.5-mile radius to 7.4 miles south of the VORTAC, and within 3.1 miles each side of the Lynchburg VORTAC 022° radial extending from the 6.5-mile radius to 21.3 miles northeast of the VORTAC, and within a 6.5-mile radius of Falwell Airport.
Food and Drug Administration, HHS.
Final rule; technical amendment.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during November and December 2015. FDA is also informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable. The animal drug regulations are also being amended to reflect changes of sponsorship of applications that occurred in November and December 2015.
This rule is effective March 30, 2016.
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5689,
FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during November and December 2015, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the CVM FOIA Electronic Reading Room:
Bayer HealthCare LLC, Animal Health Division, P.O. Box 390, Shawnee Mission, KS 66201 (Bayer) has informed FDA that it has transferred ownership of, and all rights and interest in, the following approved applications to Cronus Pharma LLC, 2 Tower Center Blvd., Suite 1101, East Brunswick, NJ 08816:
Bayer has also informed FDA that it has transferred ownership of, and all rights and interest in, approved ANADA 200-342 for Pyrantel Pamoate Paste to Farnam Companies, Inc., 301 West Osborn Rd., Phoenix, AZ 85013-3928.
Boehringer Ingelheim Vetmedica, Inc., 2621 North Belt Hwy., St. Joseph, MO 64506-2002 has informed FDA that it has transferred ownership of, and all rights and interest in, the following approved applications to Huvepharma AD, 5th Floor, 3A Nikolay Haitov Str., 1113 Sofia, Bulgaria:
In addition, Novartis Animal Health US, Inc., 3200 Northline Ave., suite 300, Greensboro, NC 27408 (Novartis) has informed FDA that it has transferred ownership of, and all rights and interest in, the following approved applications to Elanco US, Inc., 2500 Innovation Way, Greenfield, IN 46140.
As provided in the regulatory text of this document, the animal drug regulations are amended to reflect these changes of sponsorship. Elanco US, Inc., is retaining Novartis' drug labeler code (058198). Accordingly, the animal drug regulations need only be amended in § 510.600(c) to add Elanco US, Inc., who previously was not the sponsor of an approved application. Cronus Pharma LLC will also be added as a new listing. Following these changes of sponsorship, Novartis is no longer the sponsor of an approved application and will be removed from § 510.600(c).
FDA has noticed the animal drug regulations in 21 CFR part 556 contain tolerances for residues in edible tissues for sulfathiazole, which is no longer the subject of an approved application (79 FR 15540, March 20, 2014). Accordingly, § 556.690 is being removed. FDA has also noticed that the animal drug regulations in 21 CFR 558.4 (§ 558.4) contain assay limits for ronnel and sulfaethoxypyridazine in medicated feed. As there is no longer an approved application for use of either of these drugs in medicated feed, the table for Category II drugs in § 558.4 is being amended to remove assay limits in medicated feed for both drugs. These actions are being taken to improve the accuracy of the regulations.
In addition, FDA is taking this opportunity to revise the spelling of a bacitracin salt to a preferred form, bacitracin methylenedisalicylate, and to correct the spelling of a genus of pathogenic bacteria,
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
Animal drugs, Foods.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, 524, 528, 529, 556, and 558 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
The revision reads as follows:
(b)
(d) * * *
(2)
(ii) For the control of swine respiratory disease associated with
21 U.S.C. 360b.
21 U.S.C. 360b.
21 U.S.C. 360b.
(a)
(b)
(c)
(2)
21 U.S.C. 360b.
(a)
(b)
(c)
(2)
(3)
21 U.S.C. 342, 360b, 371.
(c)
(b) * * *
(3)
(4)
(b) * * *
(1) * * *
(i)
(ii)
(c)
21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.
(e) * * *
(2) Bacitracin methylenedisalicylate may also be used in combination with:
(i) Amprolium as in § 558.55.
(ii) Amprolium and ethopabate as in § 558.58.
(iii) Clopidol as in § 558.175.
(iv) Decoquinate as in § 558.195.
(v) Diclazuril as in § 558.198.
(vi) Fenbendazole as in § 588.258.
(vii) Halofuginone hydrobromide as in § 558.265.
(viii) Ivermectin as in § 558.300.
(ix) Lasalocid as in § 558.311.
(x) Monensin as in § 588.355.
(xi) Narasin as in § 558.363.
(xii) Nicarbazin alone and with narasin as in § 558.366.
(xiii) Robenidine as in § 558.515.
(xiv) Salinomycin as in § 558.550.
(xv) Semduramicin as in § 558.555.
(xvi) Zoalene as in § 558.680.
(c) * * *
(2) * * *
(ii) For fish must not exceed 6 months from the date of issuance.
(4) Type A medicated articles and medicated feeds intended for use in fish shall bear the following: “Not for use in animals intended for breeding purposes. The effects of florfenicol on reproductive performance have not been determined. Toxicity studies in dogs, rats, and mice have associated the use of florfenicol with testicular degeneration and atrophy.”
National Archives and Records Administration (NARA).
Direct final rule.
The National Archives and Records Administration (NARA) is making a minor administrative revision to its fees regulation to set a time limit for requesting refunds of reproduction fees.
This rule is effective April 29, 2016, without further action, unless NARA receives adverse comments by April 19, 2016. If NARA receives an adverse comment, it will publish a timely withdrawal of the rule in the
You may submit comments, identified by RIN 3095-AB90, by any of the following methods:
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•
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Kimberly Keravuori, by email at
NARA is authorized by 44 U.S.C. 2116(c) to charge reproduction fees when it reproduces documents for non-Federal individuals or entities. This includes official reproductions with the Archives seal, reproductions of archival holdings, and reproductions of operational records. The statute authorizes NARA to recoup its costs, equipment fees, and similar expenses, and to retain the fees as part of the National Archives Trust Fund. NARA promulgated regulations at 36 CFR 1258 to notify users of the fee structure and processes. Among these regulations is a section addressing refunds of these fees (36 CFR 1258.16). It is this provision that we are revising with this rulemaking.
Due to various factors, it is occasionally difficult for us to make a legible reproduction, particularly of old documents. We notify customers if we anticipate the reproduction will have questionable legibility, and request the customer's approval to proceed with the reproduction—and the fee charges. As a result, we do not provide refunds except in special cases; primarily if we have somehow processed an order incorrectly or it contains errors. However, the regulation's refund provision did not include a refund cut-off period after which a person who ordered a reproduction could no longer request a refund. Customers could request refunds for orders that were years old, which has occurred in several instances. We had no recourse but to process the refunds, which is not a reasonable business practice for orders that are multiple years old. This also caused a significant administrative burden, as NARA had discarded records for some of these orders at the end of their routine business life, in accord with our agency's official records schedule. For example, under records schedule 1807-2, orders made on our online ordering system (SOFA) are destroyed once they are one year old. A refund request five years after the customer received the reproduction not only is not reasonable, but occurs four years after we destroyed records of the order, making it impossible for us to determine if the customer was notified and approved the reproduction, whether there really was an error or something incorrect about the order, and similar issues.
As a result of these difficulties with refund requests on old orders, we are now revising 36 CFR 1258.16 to set a refund time limit. Customers will have four months from the order date in which to request a refund.
Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (September 30, 1993), and Executive Order 13563, Improving Regulation and Regulation Review, 76 FR 23821 (January 18, 2011), direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This proposed rule is not “significant” under section 3(f) of Executive Order 12866 because it merely modifies the window of opportunity in which customers may request refunds of reproduction fees. The Office of Management and Budget (OMB) has reviewed this regulation.
This review requires an agency to prepare an initial regulatory flexibility analysis and publish it when the agency publishes the proposed rule. This requirement does not apply if the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities (5 U.S.C. 603). NARA certifies, after review and analysis, that this proposed rule will not have a significant adverse economic impact on small entities because it merely modifies the window of opportunity in which customers may request refunds of reproduction fees.
This proposed rule does not contain any information collection requirements subject to the Paperwork Reduction Act.
Review under Executive Order 13132 requires that agencies review regulations for federalism effects on the institutional interest of states and local governments, and, if the effects are sufficiently substantial, prepare a Federal assessment to assist senior policy makers. This proposed rule will not have any direct effects on State and local governments within the meaning of the Executive Order. Therefore, the regulation requires no federalism assessment.
Archives and records.
For the reasons stated in the preamble, NARA amends 36 CFR part 1258 as follows:
44 U.S.C. 2116(c) and 2307.
Due to various factors, it is occasionally difficult for NARA to make a legible reproduction. NARA will notify customers and ask for approval to proceed if we anticipate a reproduction of questionable legibility. As a result, NARA does not provide refunds except in special cases. If a customer requests a refund, we review the order to determine if we properly notified the customer of the questionable nature of the original and if the product is a true representation of the original. If the product is a true representation of the original, we will not issue a refund. If you feel we processed your order incorrectly or it contains errors, please contact us within 120 days of your order date to have your issue verified. Once we verify the issue, we will correct the error and resend the documents. If we cannot correct the error, you will receive a refund.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of salicylaldehyde (2-hydroxybenzaldehyde, CAS Reg. No. 90-02-8) when used as an inert ingredient (penetration aid) in pesticide formulations applied to growing crops and raw agricultural commodities under 40 CFR 180.910 at a concentration not to exceed 14% by weight of the pesticide formulation. Ag-Chem Consulting LLC, on behalf of Omex Agrifluids submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of salicylaldehyde.
This regulation is effective March 30, 2016. Objections and requests for hearings must be received on or before May 31, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0019, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0019 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 31, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-
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In the
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for salicylaldehyde including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with salicylaldehyde follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by salicylaldehyde as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.
The acute oral toxicity of salicylaldehyde was examined in male rats and mice. The general oral lethal amount of salicylaldehyde is estimated to be 500 mg/kg in mice. The dermal LD
No adverse effects attributable to a single exposure to salicylaldehyde were seen in the toxicity databases. In a combined repeated dose toxicity study with the reproduction/developmental toxicity screening test, toxicity was not observed in parental animals nor in reproductive parameters at doses up to 160 mg/kg/day, the highest dose tested. Fetal susceptibility was observed. Reduced bodyweight and offspring mortality after 4 days of nursing were observed at 160 mg/kg/day. The NOAEL was 40 mg/kg/day. There was no evidence of neurotoxicity or immunotoxicity in the combined repeated dose toxicity with the reproduction/developmental toxicity screening test.
Salicylaldehyde was negative for mutagenicity in the Ames test and gave a positive response in the chromosome aberrations test using Chinese hamster cells (in vitro). An in vivo micronucleus assay was negative. Since the in vivo study is more reliable than the in vitro assays, the weight of evidence suggests that salicylaldehyde is unlikely to be mutagenic.
There are no cancer studies available for salicylaldehyde. According to a DEREK (Nexus) (structural activity relationship) report, there are no structural alerts for carcinogenicity.
The metabolism of salicylaldehyde in rabbits demonstrated that 75% of single dose of salicylaldehyde was excreted in the urine as glucuronic acid and sulfate conjugates of vanillic acid.
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
No acute toxicological endpoint of concern has been identified for salicylaldehyde. On the basis of the repeated dose and reproductive/developmental toxicity screening study, a no observed adverse effect level (NOAEL) for offspring toxicity for salicylaldehyde was 40 mg/kg bw/day based on reduced body weight and increased mortality in pups at 160 mg/kg/day. The standard 10X factors for intra- and inter-species were applied in establishing he chronic reference dose (cRfD) of 0.4 mg/kg/day (40 mg/kg/day/100). Based on the reduced FQPA Safety Factor for salicylaldehyde of 1X, the chronic population adjusted dose (cPAD) is equivalent to the chronic reference dose (cRfD) at 0.4 mg/kg//day. The chronic oral NOAEL is also applicable to the short- and intermediate-term dermal and inhalation exposure routes.
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Acute dietary assessments take into account exposure estimates from dietary consumption of food and drinking water. Chronic dietary assessments take into account dietary food and drinking water. The Agency assessed the dietary exposures to salicylaldehyde as an inert ingredient used in pesticide formulations applied to growing crops and livestock.
No adverse effects attributable to a single exposure to salicylaldehyde were seen in the toxicity databases; therefore, an acute dietary risk assessment is not appropriate.
In conducting the chronic dietary exposure assessment to salicylaldehyde an inert ingredient used in pesticide formulations applied to growing crops, raw agricultural commodities, and livestock, the Dietary Exposure Evaluation Model/Food Commodity Intake Database (DEEM-FCID) TM, Version 3.16 was used. EPA used food consumption information from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America, (USDA/NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. As to residue levels in food, no residue data were submitted for salicylaldehyde. In the absence of specific residue data, EPA has developed an approach that uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high-use insecticides, herbicides, and fungicides. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts.” (D361707, S. Piper, 2/25/09) and can be found at
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There are no current or proposed residential uses for salicylaldehyde; however, it is possible that salicylaldehyde may be used as an inert ingredient in pesticide products. A highly conservative residential exposure assessment was performed in which it was assumed that all residential use pesticide products would contain salicylaldehyde as an inert ingredient. A complete description of the approach used to assess possible residential exposures from salicylaldehyde can be found in
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EPA has not found salicylaldehyde to share a common mechanism of toxicity with any other substances, and salicylaldehyde does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that salicylaldehyde does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. The toxicity database for salicylaldehyde includes the battery of acute studies, mutagenicity studies and a combined repeated dose toxicity study with the reproduction/developmental toxicity screening test.
ii. There is no evidence of neurotoxicity in the available studies, therefore there is no need for a developmental neurotoxicity study.
iii. There is no evidence of immunotoxicity in the available database, therefore there is no need for an immunotoxicity study.
iv. There are low to no concerns for the increased susceptibility seen in the combined repeated dose toxicity study with the reproduction/developmental toxicity screening test.
v. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 14% by weight in the formulation (the maximum allowable use rate) and tolerance-level residues.
EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to salicylaldehyde in drinking water. EPA used similarly conservative assumptions to assess post application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by salicylaldehyde.
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Salicylaldehyde may be used as inert ingredients in pesticide products that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to salicylaldehyde. Using the exposure assumptions described in this unit, EPA has concluded the combined short- and intermediate-term food, water, and residential exposures result in short- and intermediate-term aggregate MOEs of 430 for adults and 170 for children (1-2 years old). Because EPA's level of concern for salicylaldehyde is a MOE of 100 or below, these MOEs are not of concern.
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An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. EPA is establishing a limitation on the amount of salicylaldehyde that may be used in pesticide formulations applied to growing crops. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136
Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for residues salicylaldehyde (CAS Reg. No. 90-02-8) when used as an inert ingredient (penetration aid) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest at a concentration not to exceed crops at no more than 14% by weight of the pesticide formulation.
This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Patricia Suber, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4149.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Federal Communications Commission.
Final rule, announcement of effective date; correction.
The Federal Communications Commission published a document in the
The amendments to 47 CFR 51.325(a)(4) and (e), 51.332, and 51.333(b) and (c) published at 80 FR 63322, October 19, 2015, are effective on March 24, 2016. The removal of 47 CFR 51.331(c) and 51.333(f) is effective on March 30, 2016.
Michele Levy Berlove, Attorney Advisor, Wireline Competition Bureau, at 202-418-1477, or by email at
The Federal Communications Commission published a document in the
In FR Doc. 2016-06683, published on March 24, 2016 on pages 15647-48, in the third and first columns respectively of those pages, correct the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 610 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the 2016 total allowable catch of pollock for Statistical Area 610 in the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), March 28, 2016, through 1200 hours, A.l.t., May 31, 2016.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The B season allowance of the 2016 total allowable catch (TAC) of pollock in Statistical Area 610 of the GOA is 4,591 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016) and inseason adjustment (81 FR 15650, March 24, 2016).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2016 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,391 mt and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 24, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish temporary restricted areas R-2509E, R-2509W, and R-2509N, Twentynine Palms, CA, to support a Marine Expeditionary Brigade level Large Scale Exercise (LSE) planned for existing and newly acquired training lands at Marine Corps Air Ground Combat Center (MCAGCC), Twentynine Palms from August 1 to August 18, 2016.
Comments must be received on or before May 16, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; telephone: (202) 366-9826. You must identify FAA Docket No. FAA-2016-4282 and Airspace Docket No. 16-AWP-3, at the beginning of your comments. You may also submit comments through the Internet at
Comments on environmental and land use aspects to should be directed to: Mr. Chris Proudfoot, Proposed 29 Palms Land Acquisition/Airspace Establishment Project MAGTFTC, MCAGCC, Bldg. 1554, Box 788104 Twentynine Palms, CA 92278-8104; phone: (760) 830-7926.
Jason Stahl, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish the temporary restricted area airspace at Twentynine Palms, CA, to enhance aviation safety and accommodate essential United States Marine Corps training requirements.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2016-4282 and Airspace Docket No. 16-AWP-3) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2016-4282 and Airspace Docket No. 16-AWP-3.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person at the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
Marine Corps combat readiness depends on the continued availability of ranges and training areas that provide realistic, mission-oriented training and exercises. Marine Corps training proceeds on a continuum, from entry-level training of individual Marines in basic military skills to large-scale exercises involving a Marine Air Ground Task Force (MAGTF). Currently, the Marine Corps does not have
This proposal would establish new temporary restricted areas R-2509E, R-2509W, and R-2509N for the period from August 1 to August 18, 2016, to accommodate live fire from pistols, rifles, machine guns, anti-tank weapons, mortars, artillery, Unmanned Aircraft Systems, fixed wing, and rotary wing training activities including close air support and live ordnance delivery. This proposed temporary restricted area is required to effectively deconflict Department of Defense and civilian air traffic from hazards associated with live fire training.
Maximum altitudes within the R-2509E would be Flight Level (FL) 400, however, impacts mitigation were coordinated with Los Angeles Air Route Traffic Control Center and will be implemented to include limiting higher airspace activations above FL220 to only 2 hours for 2 days of the exercise. R-2509W would have a ceiling of 8,000 feet MSL and R-2509N would have a ceiling of 16,000 feet MSL. Supersonic flight will not be conducted as part of the above aviation training activities.
The times of use would be by NOTAM, and activations of R-2509E above FL220 would have the NOTAM issued 48 hours in advance. Expected usage would be 12 hours per day for 10 days up to 16,000 feet and 16 hours per day for 6 days up to FL220.
The lateral boundaries of the proposed areas would be as follows:
Temporary R-2509E—Beginning at lat. 34°40′30″ N., long. 116°29′43″ W.; to lat. 34°39′24″ N., long. 116°29′19″ W.; to lat. 34°36′00″ N., long. 116°28′03″ W.; to lat. 34°31′30″ N., long. 116°26′48″ W.; to lat. 34°30′00″ N., long. 116°26′23″ W.; to lat. 34°21′35″ N., long. 116°21′38″ W.; to lat. 34°19′30″ N., long. 116°20′29″ W.; to lat. 34°17′38″ N., long. 116°19′19″ W.; to lat. 34°22′25″ N., long. 116°31′10″ W.; to lat. 34°34′17″ N., long. 116°35′52″ W.; to the point of beginning.
Temporary R-2509W—Beginning at lat. 34°35′03″ N., long. 116°36′10″ W.; to lat. 34°34′17″ N., long. 116°35′52″ W.; to lat. 34°22′25″ N., long. 116°31′10″ W.; to lat. 34°26′57″ N., long. 116°42′51″ W.; to lat. 34°29′44″ N., long. 116°42′51″ W.; to the point of beginning.
Temporary R-2509N—Beginning at lat. 34°35′03″ N., long. 116°36′10″ W.; to lat. 34°40′30″ N., long. 116°29′43″ W.; to lat. 34°34′17″ N., long. 116°35′52″ W.; to the point of beginning.
These temporary restricted areas would automatically expire on August 18, 2016.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Department of the Air Force, DoD.
Proposed rule.
This rule contains amendments for policy changes and clarification and deletions for the Air Force guidance on Administrative claims and Personnel and Carrier Recovery Claims. The rule relates to the Air Force processes for claims filed for and against the Air Force as well as Air Force processes for filing personnel and carrier recovery claims.
Comments must be received by May 31, 2016.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Mr. Daniel Lemieux (AFLOA/JACC), 1500 West Perimeter Rd, Ste 1700, Joint Base Andrews, MD 20762, (240) 612-4646,
The purpose of this rule is to provide the public with information necessary to file a claim against the United States Air Force for money damages and to notify the public of the procedures used to collect money from the public for damages to property under the control of the United States Air Force. Additionally, it is to provide the public with information about proposed changes and deletions concerning the settlement and payment of claims under the Military Personnel and Civilian Employee's Claims Act for incident to service loss and damage to personal property.
This part describes the process and procedures by which claims against the Air Force will be addressed, including who are proper claimants, how, where and when to file a claim, what claims are payable, how the Air Force will adjudicate claims and how to appeal unfavorable decisions. It also describes the process the Air Force will use for asserting claims against persons who damage Air Force property.
Changes: This part has been substantially revised and should be reviewed in its entirety to determine the changes made.
Deletions: This part has been substantially revised and should be reviewed in its entirety to determine the deletions made.
The regulations contained herein require the public who wish to file a claim against the Air Force to substantiate their loss, which may result in minor or incidental costs to the claimant. Revised regulations pertaining to how the Air Force asserts claims for damage to Air Force property may result in increased costs to those who cause said damage. The benefits of these regulations include increased safeguards to ensure public funds are not expended for fraudulent claims and to ensure the U.S. government receives adequate compensation for damages to its property wrongfully caused by others.
This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, “Improving Regulation and Regulatory Review,” DoD's full plan and updates can be accessed at:
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute 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. The Department of Air Force has assessed this rule and determined this rule to be a “non-significant regulatory action.”
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended,
This rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on State and local governments.
Administrative claims.
Accordingly, 32 CFR part 842 is proposed to be amended as follows:
Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013, except as otherwise noted; 28 CFR 14.11, except as otherwise noted.
Air Force Regulations are available on the e-Publishing Web site at
This part establishes standard policies and procedures for all administrative claims resulting from Air Force activities and for which the Air Force has assigned responsibility.
The revisions read as follows:
(f) AFLOA/JACC. Claims and Tort Litigation Division, 1500 West Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
(g)
(1)
(2)
File a claim at the base legal office of the unit or installation at or nearest to where the accident or incident occurred. If the accident or incident occurred in a foreign country where no Air Force unit is located, file the claim with the Defense Attache (DATT) or Military Assistance Advisory Group (MAAG) personnel authorized to receive claims (DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is unable to obtain adequate assistance in filing a claim, the claimant may contact the nearest Air Force SJA. The SJA then advises AFLOA/JACC through claims channels of action taken and states why the DATT or MAAG was unable to adequately assist the claimant.
(a)
(b)
(d)
(g) Claims involving wrongful taking stemming from larceny, forgery or deceit, which are not accompanied by riotous or violent action.
(h) Claims against Air National Guard members unless they are performing duty under Title 10 U.S.C.
(i) Claims for indirect, consequential or remote damages.
(a) A complaint must be submitted within 90 days of the date of the incident. The appointing commander may find good cause for the delay and accept a late claim. The appointing commander's determination of good cause is final and not reviewable.
(b) Assessment of damages in excess of $5,000 against an offender's pay for a single incident requires AFLOA/JACC approval.
Claimant complains (orally or in writing) to the commander of a military organization or unit of the alleged offending member or members or to the commander of the nearest military installation. If the claim is made orally, the individual must assist the commander to reduce the complaint to writing within a reasonable time. The complainant need not request a sum certain in writing at the time the complaint is filed, but they must present such value and evidence before settlement is made.
(a)
(b)
(c)
(a)
(1) A claim is also filed when a federal military agency receives from a claimant or duly authorized agent an electronic submission, through a Department of Defense claims Web site, indicating that the claimant intends for the appropriate military branch to consider a digitally signed demand for a determinable sum of money.
(2) A claim is also filed when the Air Force receives from a claimant or duly authorized agent an electronic submission, through the Air Force claims Web site, a digitally signed demand for a determinable sum of money.
Upon request of a claimant, a settlement authority may make a partial payment in advance of final settlement when a claimant experiences personal hardship due to extensive property damage or loss. Partial payments are made if a claim for only part of the loss is submitted and is readily provable, up to the amount of the settlement authority. (The claimant may later amend the claim for the remainder of the loss.) If the total payable amount of the claim exceeds the payment limits of the settlement authority, send it with recommendations to the proper settlement authority.
A claim may be filed by:
(a) A proper claimant,
(b) An authorized agent or legal representative of a proper claimant,
(c) A survivor of a deceased proper claimant in this order:
(1) Spouse.
(2) Children.
(3) Father or mother.
(4) Brothers or sisters.
(d) Property that is owned by the claimants, or their immediate families, or borrowed for their use, or in which the claimants or their immediate families has an enforceable ownership interest.
Claims may be payable for loss of or damage to tangible personal property when the damage occurs incident to service. For loss of or damage to property to be incident to service, it must occur at a place and time that is connected to the service of an active duty military member or employment of a civilian employee.
(a)
(1) Any location on a military installation not otherwise excluded.
(2) Any office, building, recreation area, or real estate the Air Force or any other DoD element uses or controls.
(3) Any place a military member is required or ordered to be pursuant to their duties and while performing those duties.
(4) Assigned Government Housing or Quarters in the United States or provided in kind. The Military Personnel and Civilian Employees' Claims Act specifically prohibits payment for loss of or damage to property in quarters within the US unless the housing or quarters are assigned or otherwise provided in kind. Base housing that has not been privatized is generally considered assigned or provided in kind wherever it is located.
(i) Privatized Housing or Quarters within the United States subject to the Military
Housing Privatization Initiative located within the fence line of a military installation or on federal land in which the DoD has an interest is considered assigned or otherwise provided in kind for the purposes of the Military Personnel and Civilian Employees' Claims Act.
(ii) Reserved.
(5) Housing or Quarters outside the United States. Outside the US, authorized off-base quarters, as well as assigned quarters, including quarters in US territories and possessions, are authorized places. The residence of a civilian employee is not an authorized location if the employee is a local inhabitant.
(6) Temporary Duty Quarters (TDY) and locations en route to the TDY destination.
Significant deviations from the direct travel route are not authorized locations.
(7) Permanent Change of Station (PCS) temporary quarters and locations enroute to the PCS destination. Significant deviations from the direct travel route are not authorized locations.
(8) Entitlement and Benefit Locations. For these locations to be authorized, the claimant must be using them for the intended purpose and the property must be reasonably linked to that purpose.
(9) Locations where Personal Property shipped or stored at government expense are found. Government facilities where property is stored at the claimant's expense or for their convenience without an entitlement are not authorized places.
(b)
(1) An unusual occurrence;
(2) Theft, vandalism or other malfeasance;
(3) Hostile action;
(4) A carrier, contractor, warehouseman or other transportation service provider storing or moving goods or privately owned vehicles at government expense;
(5) An agent of the US; or
(6) A permanent seizure of a witness' property by the Air Force.
(d) The loss is recovered or recoverable from an insurer or other source unless the settlement authority determines there is good cause for not claiming against the insurer.
(j) It is an appraisal fee, unless the settlement authority requires one to adjudicate the claim.
(m) It is an item acquired, possessed, shipped, or stored in violation of any U.S. Armed Force directive or regulation.
(n) It is an item fraudulently claimed.
(u) It is an inconvenience expense.
(y) It is damage to, or loss of a rental vehicle which TDY or PCS orders authorized.
(z) It is a cost to relocate a telephone or mobile or manufactured home due to a government ordered quarters move.
This subpart establishes policies and procedures for all administrative claims under the Military Claims Act for which the Air Force has assigned responsibility.
(b)
The revisions read as follows:
(a)
(1) The Secretary of the Air Force has authority to:
(3) The following individuals have delegated authority to settle claims for $25,000 or less and to deny claims in any amount:
(ii) The Director, Civil Law and Litigation.
(iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort Litigation Division.
(4) SJAs of the Air Force component commander of the US Geographic combatant commands for claims arising within their respective combatant command areas of responsibility have delegated authority to settle claims payable or deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to settle claims payable, or deny claims filed for $15,000 or less.
(b)
(f)
(a)
Subpart P sets forth procedures for advance payments.
(a) A claim must be filed in writing within 2 years after it accrues. It is deemed to be filed upon receipt by The Judge Advocate General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. The same rules governing accrual pursuant to the Federal Tort Claims Act should be applied with respect to the Military Claims Act. Upon receipt of a claim that properly belongs with another military department, the claim is promptly transferred to that department.
(c) A claim filed after the statute of limitations has run is considered if the U.S. is at war or in an armed conflict when the claim accrues or if the U.S. enters a war or armed conflict after the claim accrues, and if good causes shows how the war or armed conflict prevented the claimant from diligently filing the claim within the statute of limitations. But in no case will a claim be considered if filed more than two years after the war or armed conflict ends.
(a) Citizens and inhabitants of the United States. U.S. inhabitants includes dependents of the U.S. military personnel and federal civilian employees temporarily outside the U.S. for purposes of U.S. government service.
(b) U.S. military personnel and civilian employees. NOTE: These personnel are not proper claimants for claims for personal injury or death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in the U.S. Do not pay for claims under the MCA for personal injury or death of a foreign military personnel that occurred incident to their service.
(d) States, state agencies, counties, or municipalities, or their political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for the claim in question.
(a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.
(b) Agencies and NAFIs of the U.S. Government.
(c) Subrogees of § 842.42(a) and (b) of this part.
(d) Inhabitants of foreign countries.
The revision reads as follows
(a) Claims arising from negligent or wrongful acts or omissions committed by United States military or civilian personnel while acting in the scope of their employment, subject to the exceptions listed in this subpart.
(a) Is covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, NGCA, 32 U.S.C. 715, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721. (1) MCA claims arising from noncombat activities in the U.S. are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the MCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (
(2) Claims for incident-to-service damage to vehicles caused by the negligence of a member or employee of the armed forces acting in the scope of employment are paid under the MCA, instead of the Military Personnel and Civilian Employees' Claims Act.
(b) Arises with respect to the assessment or collection of any customs duty, or the detention of any goods or merchandise by any U.S. officer of customs or excise, or any other U.S. law enforcement officer. NOTE: This includes loss or damage to property detained by members of the Security Forces or Office of Special Investigation (OSI).
(c) Is cognizable under U.S. admiralty and maritime law, to include:
(1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
(2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
(3) The Public Vessels Act, 46 U.S.C. 31101 and following.
(4) EXCEPTION: Claims arising from noncombat activities may be paid under the MCA, even if they are also cognizable under paragraphs (c)(1) through (c)(3), of this section.
(d) Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process. EXCEPTION: Unless such actions were committed by an investigative or law enforcement officer of the U.S. who is empowered by law to conduct searches, seize evidence, or make arrests for violations of federal law.
(e) Arises out of libel, slander, misrepresentation, or deceit.
(f) Arises out of an interference with contract rights.
(g) Arises out of the combat activities of U.S. military forces.
(h) Is for the personal injury or death of a member of the Armed Forces of the U.S. incident to the member's service.
(i) Is for the personal injury or death of any person for workplace injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 8101, and following.
(j) Is for the personal injury or death of any employee of the U.S., including nonappropriated fund employees, for workplace injuries covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901, and following.
(k) Is for a taking of property,
(l) Is for patent or copyright infringement.
(m) Results wholly from the negligent or wrongful act of the claimant.
(n) Is for the reimbursement of medical, hospital, or burial expenses furnished at the expense of the U.S., either directly or through contractual payments.
(o) Arises from contractual transactions, express or implied (including rental agreements, sales agreements, leases, and easements), that:
(1) Are payable or enforceable under oral or written contracts; or
(2) Arise out of an irregular procurement or implied contract.
(p) Is for the personal injury or death of military or civilian personnel of a foreign government incident to their service.
(q) Is based on an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Claims under the noncombat activities provision of this subpart may be paid even if this paragraph applies. Is based on the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or a federal government employee, whether or not the discretion involved is abused. Do not deny claims solely on this exception without the prior approval of USAF/JACC. EXCEPTION: Claims under the noncombat activities provision may be paid even if this paragraph applies.
(r) Is not in the best interests of the U.S., is contrary to public policy, or is otherwise contrary to the basic intent of the MCA. Examples include, but are not limited to, when a claimant's criminal conduct or failure to comply with a nonpunitive regulation is a proximate cause of the loss. Prior approval must be obtained from USAF/JACC before denying claims solely on this exception.
(s) Arises out of an act or omission of any employee of the government in administering the provisions of the Trading With the Enemy Act, 50 U.S.C. app. 1-44.
(t) Is for damages caused by the imposition or establishment of a quarantine by the U.S.
(u) Arises from the fiscal operations of the Department of the Treasury or from the regulation of the monetary system.
(v) Arises from the activities of the Tennessee Valley Authority.
(w) Arises from the activities of a federal land bank, a federal intermediate credit bank, or a bank for cooperatives.
(x) Is for the personal injury or death of any government contractor employee for whom benefits are available under any worker's compensation law, or under any contract or agreement providing employee benefits through insurance, local law, or custom when the U.S. pays insurance either directly or as part of the consideration under the contract. Only USAF/JACC may act on these claims.
(y) Is for damage, injury or death from or by flood or flood waters at any place.
(z) Is for damage to property or other losses of a state, commonwealth, territory, or the District of Columbia
(aa) Is for damage to property or for any death or personal injury arising out of activities of any federal agency or employee of the government in carrying out the provisions of the Disaster Relief Act of 1974 (42 U.S.C. 5121,
(bb) Arises from activities that present a political question.
(cc) Arises from private, as distinguished from government, transactions.
(dd) Is based solely on compassionate grounds.
(ee) Is for rent, damage, or other expenses or payments involving the regular acquisition, use, possession, or disposition of real property or interests therein by and for the U.S.
(ff) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the U.S., or any country allied with such enemy country unless the appropriate settlement authority determines that the claimant is, and at the time of the incident was, friendly to the U.S. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage, loss, or destruction of personal property in the custody of the U.S. otherwise payable. Forward claims considered not payable under this paragraph, with recommendations for disposition, to USAF/JACC.
(gg) Arises out of the loss, miscarriage, or negligent transmission of letters or postal matter by the U.S. Postal Service or its agents or employees.
(hh) Is for damage to or loss of bailed property when the bailor specifically assumes such risk.
(ii) Is for property damage, personal injury, or death occurring in a foreign country to an inhabitant of a foreign country.
(jj) Is for interest incurred prior to the payment of a claim.
(kk) Arises out of matters which are in litigation against the U.S.
(ll) Is for attorney fees or costs in connection with pursuing an administrative or judicial remedy against the U.S. or any of its agencies.
(mm) Is for bail, interest or inconvenience expenses incurred in connection with the preparation and presentation of the claim.
(nn) Is for a failure to use a duty of care to keep premises owned or under the control of the U.S. safe for use for any recreational purpose, or for a failure by the U.S. to give any warning of hazardous conditions on such premises to persons entering for a recreational purpose unless there is a willful or malicious failure to guard or warn against a dangerous condition, or unless consideration was paid to the U.S. (including a nonappropriated fund instrumentality) to use the premises.
This paragraph provides the existing law governing liability, measurement of liability and the effects of settlement upon awards.
(a) Many of the exclusions in this subpart are based upon the wording of 28 U.S.C. 2680 or other federal statutes or court decisions interpreting the Federal Tort Claims Act. Federal case law interpreting the same exclusions under the Federal Tort Claims Act is applied to the Military Claims Act. Where state law differs with federal law, federal law prevails.
(b)
(1) When a claim arises in the United States, its territories or possessions, the same law as if the claim was cognizable under the FTCA will be applied.
(2)
(i) Foreign rules and regulations governing the operation of motor vehicles (rules of the road) are applied to the extent those rules are not specifically superseded or preempted by United States military traffic regulations.
(ii) Absolute or strict liability will not apply for claims not arising from noncombat activities.
(iii) Hedonic damages are not payable.
(iv) The collateral source doctrine does not apply.
(v) Joint and several liability does not apply. Payment will be made only upon the portion of loss, damage, injury or death attributable to the Armed Forces of the United States.
(vi) Future economic loss will be discounted to present value after deducting for federal income taxes and, in cases of wrongful death, personal consumption.
(c) Do not approve payment for:
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at the expense of the United States.
(iii) Cost of burial expenses paid by the United States.
(d)
(1) The United States is not protected by the release executed by the claimant.
(2) The total amount received from such source is first deducted.
(a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the settlement authority that issued the denial letter within 60 days of the date the denial letter was mailed. The settlement authority may waive the 60 day time limit for good cause.
(c) Where the settlement authority does not reach a final agreement on an appealed claim, he or she sends the entire claim file to the next higher settlement authority, who is the appellate authority for that claim. Any higher settlement authority may act upon an appeal.
(a)
(i) Settle claims for payment of $100,000 or less.
(ii) Settle claims for more than $100,000, pay the first $100,000, and
(iii) Deny claims in any amount.
(2) The Judge Advocate General, Deputy Judge Advocate General, Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation Staff are FCCs and have delegated authority to:
(i) Settle claims for payment of $100,000 or less.
(ii) Deny claims in any amount.
(3) The SJAs of the Air Force component commander of the U.S. geographic combatant commands are FCC for claims arising in their respective combatant command AORs and may deny claims of $50,000 or less and will pay claims filed in any amount when payment is for $50,000 or less.
(b)
(c)
(d)
(a)
Subpart P outlines procedures for advance payments.
(a) A claim must be presented to the Air Force within 2 years after it accrues. It accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss or injury.
(a) Foreign nationals. In a wrongful death case, if the decedent is an inhabitant of a foreign country, even though his or her survivors are U.S. inhabitants, the FCA will apply.
(b) U.S. nationals residing abroad, unless the claim arises from a benefit, privilege or service provided to them by the U.S. Government, or they reside in the foreign country primarily because they are employed directly by the United States, or sponsored by or accompanying such a person, or employed by a U.S. civilian contractor in furtherance of a contract with the U.S. Government, or sponsored by or accompanying such a person.
(b) Persons determined to be U.S. inhabitants. U.S. inhabitants include dependents of U.S. military personnel and U.S. Government civilian employees.
(c) Foreign military personnel suffering personal injury, or death arising incident to service or pursuant to combined and/or joint military operations. Such operations include, but are not limited to, military exercises and United Nations, NATO, and other regional peacekeeping and humanitarian missions.
(e) National governments and their political subdivisions engaging in war or armed conflict with the United States or its allies. This includes factions that have not necessarily been recognized by the international community as a legitimate nation state.
The revision reads as follows:
The following criteria is considered before determining liability.
(a) The incident causing the damage or injury must arise in a foreign country and be caused by noncombatant activities of the U.S. Armed Forces or by the negligent or wrongful acts of civilian employees or military members of the Armed Forces.
(1) It is a prerequisite to U.S. responsibility if the employee causing the damage or injury is a local inhabitant, a prisoner of war, or an interned enemy alien. These persons are “employees” within the meaning of the Foreign Claims Act (FCA) only when in the service of the United States. Ordinarily, a slight deviation as to time or place does not constitute a departure from the scope of employment. The purpose of the activity and whether it furthers the general interest of the United States is considered. If the claim arose from the operation or use of a U.S. Armed Forces vehicle or other equipment by such a person, pay it provided local law imposes liability on the owner of the vehicle or other equipment in the circumstances involved.
(2) It is immaterial when the claim arises from the acts or omissions of any U.S. Armed Forces member or employee not listed in § 842.64(c)(1) of this part. The Act imposes responsibility on the United States when it places a US citizen or non-U.S. citizen employee in a position to cause the injury or damage. If the cause is a criminal act clearly outside the scope of employment, ordinarily pay the claim and consider disciplinary action against the offender.
The revisions and additions read as follows:
A claim is not payable when it:
(a) Is waived under an applicable international agreement, or pursuant to an applicable international agreement, a receiving state should adjudicate and pay the claim. However, if a foreign government subject to such an international agreement disputes its legal responsibilities under the agreement, and the claimant has no
(c) Is for attorney fees, punitive damages, a judgment or interest on a judgment, bail, or court costs. FCC should consider providing early notice to claimants that attorney fees are not payable as an item of damage under the FCA.
(f) Is a paternity claim.
(h) Results wholly from the negligent or wrongful act of the claimant or agent.
(m) Results from an action by an enemy, or directly or indirectly from an act of the U.S. armed forces in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the U.S. armed forces, including its airborne ordnance, indirectly related to combat, and occurring while preparing for or going to, or returning from a combat mission.
(o) Arises out of personal activities of family members, guests, servants, or activities of the pets of members and employees of the U.S. Armed Forces.
(q) Is covered under U..S admiralty or maritime laws, unless authorized by The Judge Advocate General or Chief, Claims and Tort Litigation Staff.
(s) Is not in the best interest of the United States, is contrary to public policy, or otherwise contrary to the basic intent of the FCA. Claims considered not payable on this basis will be forwarded to USAF/JACC for final decision.
(t) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or any country allied with such enemy country unless the settlement authority determines the claimant is, and at the time of the incident was, friendly to the United States. EXCEPTION: A prisoner of war or interned enemy alien is not excluded from filing a claim for damage, loss, or destruction of personal property within the U.S. Armed Forces' custody if the claim is otherwise payable.
This section provides guidance to determine the applicable law for assessment of liability.
(a) In adjudicating FCA claims, settlement authorities will follow the law, customs, and standards of the country where the claim arose, except:
(1) Causation is determined based upon general principles of U.S. tort law found in federal case law and standard legal publications.
(2) Joint and several liability does not apply. Payment is based solely on the portion of loss, damage, injury or death attributable to the U.S. Armed Forces.
(3) If lost income or lost profits is recoverable under the law where the claim arose, they shall be limited to net lost income or net lost profits, taking into account appropriate deductions for taxes, regular business expenditures, and in the case of wrongful death, personal consumption during the loss period.
(b) Settlement authorities will not deduct compensation from collateral sources except for:
(1) Direct payments by a member or civilian employee of the U.S. Armed Forces for damages (not solatia).
(2) Any payments recovered or recoverable from an insurance policy when premiums were paid, directly or indirectly, by the United States, or a member or civilian employee of the U.S. Armed Forces; or when the member or employee has the benefit of the insurance (such as when a U.S. member or employee borrows a vehicle of a local national, and the vehicle carries insurance for the benefit of any driver with permission to drive the vehicle).
This section provides the procedures used to reconsider a final denial.
(a) An FCC has the inherent authority to reconsider a final decision. The mere fact that a request for reconsideration is received does not obligate the settlement authority to reopen the claim.
(b) The FCC does not mention a reconsideration right in the original denial letter.
(c) A settlement authority must reconsider the final action when there is:
(1) New and material evidence concerning the claim or,
(2) Obvious errors in the original decision.
(d) The FCC must document in the claim file the reason for reconsideration.
(e) A FCC above the original settlement authority may direct a claim be forwarded to a higher FCC for reconsideration.
The Air Force has all the rights of subrogation, indemnity and contribution, as local law permits. However, settlement authorities will not seek contribution or indemnity from U.S. military members or civilian employees whose conduct gave rise to U.S. government liability, or whenever it would be harmful to international relations.
This subpart governs Air Force actions in investigating, processing, and settling claims under the International Agreement Claims Act.
(a)
(d)
(e)
(f)
(g)
(a) Staff Judge Advocates of the Air Force component commands of the U.S. geographic combatant commands will, within their combatant command AORs, fulfill U.S. obligations concerning claims abroad subject to 10 U.S.C. 2734a for which the Air Force has settlement authority. Consistent with 10 U.S.C. 2734a and the international agreement, they may reimburse or pay the pro rata share of a claim as agreed, or if inconsistent with the IACA or the international agreement, they may object to a bill presented,
(b) The Secretary of the Air Force, The Judge Advocate General, the Deputy Judge Advocate General, The Director of Civil Law and Chief of the Claims and Tort Litigation Division may also exercise settlement authority under 10 U.S.C. 2734a.
(c)
(d) Authority to reduce, withdraw, and restore settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated authority.
(b)
This subpart explains how to settle and pay claims against the United States, for property damage, personal injury, or death incident to the use of a government vehicle or any other government property on a government installation which are not payable under any other statute.
(a) * * *
(5) SJA of the Air Force component commands of the U.S. geographic combatant commands.
The revision reads as follows:
(c) Arose from the use of a government vehicle at any place or from the use of other government property on a government installation, and
(e) For pain and suffering or other general damages.
Do not pay a claim unless the claimant accepts the amount offered in full satisfaction of the claim and signs a settlement agreement to that effect, in which the claimant agrees to release any and all claims against the United States, its employees and agents arising from the incident in question. Use the settlement agreement approved for use by the Department of Justice for the settlement of FTCA claims, tailored to this claim.
The revisions read as follows:
(a) * * *
(1) * * *
(i) Settle or deny a claim in any amount. Settlements for payment of more than $500,000 are certified to Congress for payment.
(b) * * *
(3) * * *
(iv) The Chief and Deputy Chief, Claims and Tort Litigation Division.
(c) There is no time limit for submitting a request for reconsideration, but it is within the discretion of the settlement authority to decline to reconsider a claim based on the amount of time passed since the claim was originally denied.
This subpart, promulgated under the authority of 28 CFR 14.11, governs claims against the United States for property damage, personal injury, or death, from the negligent or wrongful acts or omission of Air Force military or civilian personnel while acting within the scope of their employment.
(a)
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Division Chief of Claims and Tort Litigation.
(v) The Division Chief of Environmental Law and Litigation.
(b)
(c)
(d)
The claimant must sign a settlement agreement and general release before any payment is made.
When the Air Force is the proper agency to receive a claim pursuant to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b), 2672 and 2675, a claim shall be deemed to have been presented when it is received by:
(a) The office of the Staff Judge Advocate of the Air Force installation nearest the location of the incident; or
(b) The Claims and Tort Litigation Division, 1500 West Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
This subpart describes how to assert, administer, and collect claims for damage to or loss or destruction of government property and lost wages of Air Force servicemembers through negligent or wrongful acts. It does not cover admiralty, hospital recovery, or nonappropriated fund claims.
(a)
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(2) Installation staff judge advocates have authority to assert claims in any amount, accept full payment on any claim and to compromise, suspend or terminate action on claims asserted for $25,000 or less.
(a) * * *
(2) Less than $100 but collection is practicable and economical.
(c) The claim is for property damage arising from the same incident as a hospital recovery claim.
(e) The claim is assertable as a counterclaim under an international agreement. (The claim should be processed under subpart G of this part).
(b) * * *
(2) Caused by a person who has accountability and responsibility for the damaged property under the Report of Survey system.
(f) Loss or damage caused by an employee of another federal agency while the employee was acting in the scope of his employment.
If collection efforts are unsuccessful, AFLOA/JACC may refer a claim to the appropriate U.S. Attorney's Office or the Department of Justice for initiation of a lawsuit.
This subpart establishes policies and procedures for all administrative claims under the National Guard Claims Act for which the Air Force has assigned responsibility. Unless otherwise outlined in this subpart, follow procedures as outlined in Subpart E for claims arising out of noncombat activities.
(a)
(b)
(c)
(2)
(3)
(d)
The revisions read as follows:
(a) * * *
(4) The SJAs of the Air Force component commander of the U.S. Geographic combatant commands for claims arising within their respective combatant command areas of responsibility have delegated authority to settle claims payable or to deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to settle claims payable, and deny claims filed, for $15,000 or less.
(b)
(a)
(b)
Subpart P of this part sets forth procedures for such payments.
(a) A claim must be filed in writing within 2 years after it accrues. It is deemed to be filed upon receipt by The Judge Advocate General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. The same rules governing accrual pursuant to the Federal Tort Claims Act should be applied with respect to the National Guard Claims Act. Upon receipt of a claim that properly belongs with another military department, the claim is promptly transferred to that department.
(b) The statutory time period excludes the day of the incident and includes the day the claim was filed.
(c) A claim filed after the statute of limitations has run is considered if the U.S. is at war or in an armed conflict when the claim accrues or if the U.S. enters a war or armed conflict after the claim accrues, and if good causes shows how the war or armed conflict prevented the claimant from diligently filing the claim within the statute of limitations. But in no case will a claim be considered if filed more than two years after the war or armed conflict ends.
The following individuals may file a claim under this subpart.
(a) Owners of the property or their authorized agents may file claims for property damage.
(b) Injured persons or their duly authorized agents may file claims for personal injury.
(c) Duly appointed guardians of minor children or any other persons legally entitled to do so under applicable local law may file claims for minors' personal injuries.
(d) Executors or administrators of a decedent's estate or another person legally entitled to do so under applicable local law, may file claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid in full by them. The parties may file claims jointly or individually, to the extent of each party's interest, for losses partially paid by insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal capacity and present evidence of authority to present the claims.
(a) Citizens and inhabitants of the United States. U.S. inhabitants includes dependents of the U.S. military personnel and federal civilian employees temporarily outside the U.S. for purposes of U.S. government service.
(b) U.S. military personnel and civilian employees. NOTE: These personnel are not proper claimants for claims for personal injury or death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in the U.S. Do not pay for claims under the MCA for personal injury or death of a foreign military personnel that occurred incident to their service.
(d) States, state agencies, counties, or municipalities, or their political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for the claim in question.
(a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.
(b) Agencies and Nonappropriated fund instrumentalities of the U.S. Government including the District of Columbia government.
(c) Inhabitants of foreign countries.
(d) The state, territory and its political subdivisions whose Air National Guard member caused the loss.
(e) Subrogees of the claimants in paragraphs (a) through (d) of this section.
Claims arising from noncombat activities of the United States when caused by ANG members performing duty under 32 U.S.C. and acting within the scope of their employment, whether or not such injuries or damages arose out of their negligent or wrongful acts or omissions.
(a) Is covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, MCA, 10 U.S.C. 2733, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
(b) NGCA claims arising from noncombat activities in the U.S. are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the NGCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (
(c) See subpart E for other claims not payable.
(a) Many of the exclusions in this subpart are based upon the wording of 28 U.S.C. 2680 or other federal statutes or court decisions interpreting the Federal Tort Claims Act. Federal case law interpreting the same exclusions under the Federal Tort Claims Act is applied to the National Guard Claims Act. Where state law differs with federal law, federal law prevails.
(b)
(1) When a claim arises in the United States, its territories or possessions, the same law as if the claim was cognizable under the FTCA will be applied.
(2)
(i) Absolute or strict liability will not apply for claims not arising from noncombat activities.
(ii) Hedonic damages are not payable
(iii) The collateral source doctrine will not apply
(iv) Joint and several liability does not apply. Payment will be made only upon the portion of loss, damage, injury or death attributable to the Armed Forces of the United States.
(v) Future economic loss will be discounted to present value after deducting for federal income taxes and, in cases of wrongful death, personal consumption.
(c) Do not approve payment for:
(1) Punitive damages.
(2) Cost of medical or hospital services furnished at U.S. expense.
(3) Cost of burial expenses paid by the United States.
(d)
(1) The United States is not protected by the release executed by the claimant.
(2) The total amount received from such source is first deducted.
(a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the settlement authority that issued the denial letter within 60 days of the date the denial letter was mailed. The settlement authority may waive the 60 day time limit for good cause.
(b) Upon receipt of the appeal, the original settlement authority reviews the appeal.
(c) Where the settlement authority does not reach a final agreement on an appealed claim, he or she sends the entire claim file to the next higher settlement authority, who is the appellate authority for that claim. Any higher settlement authority may act upon an appeal.
(d) The decision of the appellate authority is the final administrative action on the claim.
The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of contribution and indemnity permitted by the law of the situs or under contract. Do not seek contribution or indemnity from ANG members whose conduct gave rise to Government liability.
In the settlement of any claim pursuant to 32 U.S.C. 715 and this subpart, attorney fees will not exceed 20 percent of any award provided that when a claim involves payment of an award over $1,000,000, attorney fees on that part of the award exceeding $1,000,000 may be determined by the Secretary of the Air Force. For the purposes of this paragraph, an award is deemed to be the cost to the United States at the time of purchase of a structured settlement, and not its future value.
This subpart explains how the United States asserts and settles claims for costs of medical care, against third parties under the Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various other laws.
(a)
(h)
(i)
(a)
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) The Director of Civil Law.
(4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.
(b)
(1) SJAs, when given Medical Cost Reimbursement (MCR) claims jurisdiction, are granted authority to waive, compromise, or settle claims in amounts of $25,000 or less. This authority may be re-delegated in writing with authority to re-delegate to subordinates.
(2) SJAs of numbered Air Forces, when given MCR claims jurisdiction, are granted authority to waive, compromise, or settle claims in amounts of $40,000 or less. This authority may be re-delegated in writing with authority to re-delegate to subordinates.
(3) SJAs of single base GCMs, the SJAs of GMCs in PACAF and USAFE, and the SJAs of each Air Force base, station, or fixed installation have delegated authority to compromise or waive claims for $15,000 or less and to accept full payment on any claim
(c)
(d)
(e)
Note: Telephonic approvals, in the discretion of the higher settlement authority, are authorized.
(f)
(1) Compromise or waiver of a claim for more than $300,000.
(2) Settlement previously referred to DOJ.
(3) Settlement where a third party files suit against the U.S. or the injured party arising out of the same incident.
The following are considered nonassertable claims and should not be asserted:
(a)
(b)
(c)
(d)
(e)
(f)
(a) MCR personnel assert a claim against a tortfeasor or other third party using a formal letter on Air Force stationery. The assertion is made against all potential payers, including insurers. The demand letter should state the legal basis for recovery and sufficiently describe the facts and circumstances surrounding the incident giving rise to medical care. Applicable bases of recovery include U.S. status as a third-party beneficiary under various types of insurance policies, workers' compensation laws, no-fault laws, or other Federal statutes, including COB or FMCRA.
(b) The MCR authority must promptly notify the injured parties or their legal representatives, in writing, that the United States will attempt to recover from the third parties the reasonable value of medical care furnished or to be furnished and that they:
(1) Should seek advice from a legal assistance officer or civilian counsel.
(2) Must cooperate in the prosecution of all actions of the United States against third parties.
(3) Must furnish a complete statement regarding the facts and circumstances surrounding the incident which caused the injury.
(4) Must not execute a release or settle any claim which exists as a result of the injury without prior notice to the MCR authority.
(a) All cases that require forwarding to the DoJ must be routed through the Chief, MCRP. The MCR authority ensures that personnel review all claims for possible referral not later than two years after the date of the incident for tort based cases.
(b) The United States or the injured party on behalf of the United States must file suit within 3 years after an action accrues. This is usually 3 years after the initial treatment is provided in a federal medical facility or after the initial payment is made by Tricare, whichever is first.
The
Waivers and compromises of government claims can be made. This paragraph lists the basic guidance for each action. (See this subpart for claims involving waiver and compromise of amounts in excess of settlement authorities' delegated amounts.)
(a)
(1) Risks of litigation.
(2) Questionable liability of the third party.
(3) Costs of litigation.
(4) Insurance (Uninsured or Underinsured Motorist and Medical Payment Coverage) or other assets of the tortfeasor available to satisfy a judgment for the entire claim.
(5) Potential counterclaim against the U.S.
(6) Jury verdict expectancy amount.
(7) Amount of settlement with proposed distribution.
(8) Cost of any future care.
(9) Tortfeasor cannot be located.
(10) Tortfeasor is judgment proof.
(11) Tortfeasor has refused to pay and the case is too weak for litigation.
(b)
(1) Permanent disability or disfigurement of the injured party.
(2) Decreased earning power of the injured party.
(3) Out of pocket losses to the injured party.
(4) Financial status of the injured party.
(5) Pension rights of the injured party.
(6) Other government benefits available to the injured party.
(7) An offer of settlement from a third party which includes virtually all of the thirty party's assets, although the amount is considerably less than the calculation of the injured party's damages.
(8) Whether the injured party received excessive treatment.
(9) Amount of settlement with proposed distribution, including reductions in fees or damages by other parties, medical providers, or attorneys in order to reduce the hardship on the injured party.
(c)
A settlement authority may reconsider its previous action on a request for waiver or compromise whether requested or not. Reconsideration is normally on the basis of new evidence or discovery of errors in the waiver submission or settlement, but can be based upon a re-evaluation of the claim by the settlement authority.
This subpart describes how to settle claims for and against the United States for property damage, personal injury, or death arising out of the operation of Nonappropriated Fund Instrumentalities (NAFIs). Unless stated below, such claims will follow procedures outlined in other subparts of this part for the substantive law applicable to the particular claim. For example, a NAFI claim adjudicated under the Federal Tort Claims Act will follow procedures in this subpart as well as subpart K.
(a)
(b)
(c)
(d)
Substantiated claims against NAFIs must not be paid solely from appropriated funds. Claims are sent for payment as set out in this subpart. Do not delay paying a claimant because doubt exists whether to use appropriated funds or NAFs. Pay the claim initially from appropriated funds and decide the correct funding source later.
(a)
(b)
(a) This subpart explains how to process certain administrative claims:
(1) Against the United States for property damage, personal injury, or death, arising out of Air Force assigned noncombat missions performed by the Civil Air Patrol (CAP), as well as certain other Air Force authorized missions performed by the CAP in support of the Federal government.
(2) In favor of the United States for damage to US Government property caused by CAP members or third parties.
(b) Unless stated below, such claims will follow procedures outlined in other subparts of this part for the substantive law applicable to the particular claim. For example, a CAP claim adjudicated under the Military Claims Act will follow procedures in this subpart as well as subpart E.
This subpart tells how to make an advance payment before a claim is filed or finalized under the Military Claims, Foreign Claims and National Guard Claims Acts.
(c) * * *
(4) SJAs of the Air Force component commander of the US Geographic combatant commands for claims arising within their respective combatant command areas of responsibility.
(b) The potential claimant has an immediate need amounting to a hardship for food, shelter, medical or burial expenses, or other necessities. In the case of a commercial enterprise, severe financial loss or bankruptcy will result if the Air Force does not make an advance payment.
Coast Guard, DHS.
Notice of Proposed Rulemaking.
The Coast Guard proposes to establish a permanent safety zone for an annually recurring marine event in the Red River, from MM 88.0 to MM 88.5. This action is necessary to protect persons and vessels from the potential safety hazards associated with a dragon boat race taking place in early May, 2016 and recurring annually thereafter. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless specifically authorized by the Captain of the Port (COTP), Lower Mississippi River or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before April 14, 2016.
You may submit comments identified by docket number USCG-2016-0171 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Tyrone Conner, Sector Lower Mississippi River Waterways Management Division, U.S. Coast Guard; telephone (901)521-4725, email
This is the sixth annual Louisiana Dragon Boat Race, occurring each year on the Red River during the first few weeks in May. We have established a safety zone for the race event in past years through a temporary final rulemaking each year. For this year and subsequent years, we propose to establish the safety zone as a permanent annually recurring regulation to safeguard against the hazards associated with a race event on the Red River, near Alexandria, Louisiana.
The legal basis and authorities for this rule are found in 33 U.S.C. 1231. The purpose of this proposed safety zone is to protect both spectators and participants from the hazards associated with the race event.
The COTP Lower Mississippi River proposes to establish a safety zone approximately 7:00 a.m. to 5:00 p.m. for approximately 10 hours on the first or second Saturday in May, recurring annually. The proposed safety zone would encompass all waters of the Red River from Mile Marker (MM) 88.0 to (MM) 88.5. All persons and vessels, except those persons and vessels participating in the dragon boat race and those vessels enforcing the areas, would be prohibited from entering, transiting through, anchoring in, or remaining within the safety zone. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the time, location and duration of the safety zone. Vessel traffic would be restricted from entering,
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a temporary safety zone for approximately 10 hours on one day in May each year on the Red River from (MM) 88.0 to (MM) 88.5. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1
Postal Service.
Proposed rule.
This proposed rule establishes procedures for the disposition of abandoned property held by the United States Postal Service Office of Inspector General. The rule establishes procedures for determining the ownership of abandoned property, the advertisement of abandoned items with no apparent owner held by the Office of Inspector General, and the disposal of items declared abandoned.
Comments must be received on or before April 29, 2016.
Written comments should be directed to the Office of Inspector General, Office of General Counsel, 1735 North Lynn Street, Arlington, Virginia 22209-2013. Copies of all written comments will be available at that address for inspection and copying between 9 a.m. and 4 p.m., Monday through Friday.
Gladis Griffith, Office of General Counsel, (703) 248-4683.
In the course of conducting official investigations, Special Agents of the United States Postal Service Office of Inspector General frequently recover property lost or stolen from the mail and obtain custody of property needed for use as evidence in proceedings to enforce various provisions of the United States Code. In most cases, such property is returned to the owner at the conclusion of the investigation or any resulting administrative or judicial proceedings. In some cases, however, the owners fail to claim property, and it therefore remains in the custody of the Office of Inspector General after it is no longer needed. The proposed rule would establish a fair and uniform procedure to identify the owners of such property, afford them an opportunity to claim its return, and in the event a valid claim is not received, treat such property as abandoned and direct that it be sold or put to official use. Apparent owners would be notified of their right to claim property, and where no apparent owner is known and the value of the property in question exceeds $200, notice would be published on the Office of Inspector General's Web site inviting the owner to submit a claim for its return.
Administrative practice and procedure, Claims, Law enforcement, Property (abandoned).
For the reasons stated in the preamble, the Postal Service proposes to amend 39 CFR part 230 as follows:
5 U.S.C. App.3; 39 U.S.C. 401(2) and 1001.
This subpart prescribes procedures governing the disposition of any property (real, personal, tangible, or intangible) obtained by the United States Postal Service Office of Inspector General (Office of Inspector General) for possible use as evidence after the need to retain such property no longer exists.
The following definitions apply to this subpart:
(a)
(b)
(c)
(d)
(e)
Where an apparent owner of property subject to this subpart is known, and the estimated value of the property exceeds $200, the owner shall be notified by certified mail at his last known address. The written notice shall describe the property and the procedure for filing a claim for its return (
Where an apparent owner of property subject to this subpart is known, and the estimated value of the property is $200 or less, the Executive Special Agent in Charge, or a designee, should attempt to return the property to the owner. If successful, the Executive Special Agent in Charge shall request the owner sign a Hold Harmless Agreement. If not, the Executive Special Agent in Charge shall vest title in the Government.
(a) Where no apparent owner of property subject to this subpart is known, except property described in § 230.36, and the estimated value of the property exceeds $200, the Executive Special Agent in Charge, or a designee, must publish notice providing the following information:
(1) A description of the property, including model or serial numbers, if known;
(2) A statement of the location where the property was found;
(3) The name, address, and telephone number of the Executive Special Agent in Charge who has custody of the property; and
(4) A statement inviting any person who believes he or she is fully entitled to the property to submit a claim for its return with the Executive Special Agent in Charge identified in the notice. Such claim must be submitted within 30 days from the date of first publication of the notice.
(b) The notice under paragraph (a) of this section must be published for three consecutive weeks on the Office of Inspector General's Web site.
Where the owner of property subject to this subpart is unknown and the estimated value of the property is $200 or less, no notice is required, and the Executive Special Agent in Charge, or a designee, should vest title in the Government, subject to the rights of the owner to submit a valid claim as provided in § 230.38.
Claims submitted with respect to property subject to this subpart, possession of which is unlawful, must be denied, in writing, by certified mail, and the person submitting the claim must be accorded 45 days from the postmarked date to institute judicial proceedings to challenge the denial. If judicial proceedings are not instituted within 45 days, or any extension of time for good cause shown, the contraband property must be destroyed unless the Executive Special Agent in Charge, or a designee, determines that it should be placed in official use by the Office of Inspector General. Property subject to this part, the disposition of which is involved in litigation or is subject to an order of court, must be disposed of as determined by the court.
If the Office of Inspector General is unable to determine whether the personal property in its custody is abandoned or voluntarily abandoned, it shall contact the Office of Inspector General, Office of General Counsel for such a determination.
(a) Upon expiration of the time provided in §§ 230.32 and 230.34 for the filing of claims or any extension thereof, and without the receipt of a timely claim, the property described in the notice is considered abandoned and becomes the property of the Government. However, if the owner satisfies the requirements of paragraph (b) of this section, except for property described in § 230.36, such abandoned property must be returned to the owner if a valid claim is filed within three years from the date the property became abandoned, with the following qualifications:
(1) Where property has been placed in official use by the Office of Inspector General, a person submitting a valid claim under this section must be reimbursed the fair market value of the property at the time title vested in the Office of Inspector General, less costs incurred in returning or attempting to return such property to the owner; or
(2) Where property has been sold, a person submitting a valid claim under this section must be reimbursed the same amount as the last appraised value of the property prior to the sale of such property.
(b) In order to present a valid claim under paragraph (a) of this section, the claimant must establish he or she had no actual or constructive notice that he or she was entitled to file a claim pursuant to § 230.32 or § 230.34 prior to the date the property became abandoned. Publication of a notice pursuant to § 230.34 provides constructive notice, unless a claimant can demonstrate circumstances that reasonably precluded his or her access to the published notice.
Claims submitted pursuant to this subpart must be submitted on Postal Service Form 1503, which may be obtained from the Executive Special Agent in Charge who has custody of the property.
Upon receipt of a claim under this subpart, the Office of Inspector General must conduct an investigation to determine the merits of the claim. The results of the investigation must be submitted to the ruling official, who must approve or deny the claim by written decision, a copy of which must be forwarded to the claimant by certified mail. If the claim is granted, the conditions of relief and the procedures to be followed to obtain the relief shall be set forth. If the claim is
A written request for reconsideration of denied claims must be based on evidence recently developed or not previously presented. It must be submitted within 10 days of the postmarked date of the letter denying the claim. The ruling official shall advise the Asset Forfeiture Coordinator if a timely reconsideration of the denial is made. The Office of Inspector General, Office of General Counsel shall rule on the reconsideration request.
Property declared abandoned, including cash and proceeds from the sale of property subject to this part, may be shared with federal, state, or local agencies. Abandoned property may also be destroyed, sold, or placed into official use. However, before abandoned property can be shared with another agency, sold, or placed into official use, the Executive Special Agent in Charge must confer with the Office of Inspector General, Office of General Counsel. Unless the Executive Special Agent in Charge determines the cash or proceeds of the sale of the abandoned property are to be shared with other law enforcement agencies, such cash or proceeds shall be converted to money orders and transmitted to: United States Postal Service, Disbursing Officer, 2825 Lone Oak Parkway, Eagan, MN 55121-9640.
Substance Abuse and Mental Health Services Administration (SAMHSA), HHS.
Proposed rule.
The Secretary of the Department of Health and Human Services (the Secretary) (HHS) proposes a rule to increase the highest patient limit for qualified physicians to treat opioid use disorder under section 303(g)(2) of the Controlled Substances Act (CSA) from 100 to 200. The purpose of the proposed rule is to increase access to treatment for opioid use disorder while reducing the opportunity for diversion of the medication to unlawful use.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on May 31, 2016.
You may submit comments, identified by Regulatory Information Number (RIN) 0930-AA22, by any of the following methods:
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Jinhee Lee, Pharm.D., Public Health Advisor, Center for Substance Abuse Treatment, 240-276-0545, Email address:
The purpose of this proposed rule is to expand access to medication-assisted treatment (MAT) by allowing eligible practitioners to request approval to treat up to 200 patients under section 303(g)(2) of the Controlled Substances Act (CSA). The rulemaking also includes requirements to ensure that patients receive the full array of services that comprise evidence-based MAT and minimize the risk that the medications provided for treatment are misused or diverted. We hope that this proposed rule will stimulate broader availability of high-quality MAT both in specialized addiction treatment settings and throughout more mainstream health care delivery systems.
Section 303(g)(2) of the CSA (21 U.S.C. 823(g)(2)) allows individual practitioners to dispense or prescribe Schedule III, IV, or V controlled substances that have been approved by the Food and Drug Administration (FDA) for use in maintenance and detoxification treatment without registering as an opioid treatment program (OTP). Currently, the only FDA-approved medications that meet this standard are buprenorphine and the combination buprenorphine/naloxone (hereinafter referred to as buprenorphine). Buprenorphine is a schedule III controlled substance under the CSA. The CSA also imposes a limit on the number of patients a practitioner may treat with certain types of FDA-approved narcotic drugs, such as buprenorphine, at any one time. Pursuant to 21 U.S.C. 823(g)(2)(B)(iii), the Secretary is authorized to change this patient limit by regulation at any one time.
Section 303(g)(2)(B)(iii) of the CSA allows qualified practitioners who file an initial notification of intent (NOI) to treat a maximum of 30 patients at a time. After 1 year, the practitioner may file a second NOI indicating his/her intent to treat up to 100 patients at a time. To qualify to treat any patients with buprenorphine, the practitioner must be a physician, possess a valid license to practice medicine, be a registrant of the Drug Enforcement Administration (DEA), have the capacity to refer patients for appropriate counseling and other necessary ancillary services, and have completed required training. As specified in the statute, the training requirement may be satisfied in several ways: One may hold subspecialty board certification in addiction psychiatry from the American Board of Medical Specialties or addiction medicine from the American Osteopathic Association; hold an addiction certification from the American Society of Addiction Medicine (ASAM); complete an 8-hour training provided by an approved organization; have participated as an investigator in one or more clinical trials leading to the approval of a medication that qualifies to be prescribed under 21 U.S.C. 823(g)(2); or complete other training or have such other experience as the State medical licensing board or the Secretary considers to demonstrate the ability of the physician to treat and manage persons with opioid use disorder.
Access to MAT has been subject to patient limits via the provisions contained in the CSA and enforced by DEA. Since 21 U.S.C. 823(g)(2) was originally modified by legislation in 2000 to allow the provision of MAT without registering as an OTP, additional modifications have been made to address the application of the patient limit in group medical practices and to create a higher patient limit for practitioners with 1 year of experience. These changes, while important, have not proven sufficient to support the development of adequate treatment capacity to keep pace with the growth of the national crisis of opioid misuse and overdose. To the extent that the current patient limit contributes to this access challenge, this proposed rule seeks to make a useful change in an effort to improve access.
The proposed rule would revise the highest patient limit from 100 patients per practitioner with an existing waiver (waivered practitioner) to 200 patients for practitioners who meet certain criteria. Practitioners who have a waiver to treat 100 patients for at least 1 year would be eligible to apply for a waiver to treat up to 200 patients if they possess a subspecialty board certification in addiction medicine or addiction psychiatry or practice in a qualified practice setting as defined in this proposed rule. In either case, practitioners with the higher limit of 200 would also be required to accept greater responsibility for ensuring behavioral health services and care coordination are received and for ensuring quality assurance and improvement practices, diversion control, and continuity of care in emergencies. The higher limit would also carry with it the duty to regularly reaffirm the practitioner's ongoing eligibility and to participate in data reporting and monitoring as required by SAMHSA. In addition, practitioners in good standing with a current waiver to prescribe to up to 100 patients (
The proposed rule is intended to increase access to MAT for some patients with an opioid use disorder, providing them with a path to recovery; reduce costs across different sectors (
HHS invites interested parties to submit comments on all aspects of the proposed rule. When submitting comments, please reference a specific portion of the proposed rule, provide an explanation for any recommended change, and include supporting data. Specific agency questions for comment are listed in section VII. Comments responding to these questions should reference them by number.
All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable and/or confidential information that is included in a comment. We post all comments received as soon as possible after they have been received on the following Web site:
Comments received before the close of the comment period will also be available for public inspection, generally beginning approximately 3 weeks after publication of the proposed rule, at the headquarters of the Substance Abuse and Mental Health Services Administration, 5600 Fishers Lane, Rockville, Maryland 20857, Monday through Friday of each week from 8:30 a.m. to 4:00 p.m. To schedule an appointment to view public comments, call 240-276-1660.
We will consider all comments we receive by the date and time specified in the
Substance use disorder is a treatable chronic disease caused by changes to the structure and function of the brain due to exposure to intoxicating substances.
Opioid use disorder is essentially the same phenomenon. The potential for addiction and the symptoms of tolerance and withdrawal are very similar, whether the opioid is heroin or a prescription pain reliever, such as oxycodone or hydrocodone, because the brain responds to all opioids similarly. Untreated opioid dependence is associated with adoption of high-risk opioid use behaviors.
The majority of these individuals do not recognize that repeated use of opioids, albeit legitimate, may increase the risk of developing an opioid use disorder, which may lead some individuals to switch from prescription drugs to cheaper and more risky substitutes like heroin. Based on combined 2014 National Survey on Drug Use and Health data, there are 1.9 million people aged 12 or older with a past-year pain reliever use disorder and 539,000 people with a past-year heroin use disorder.
As many as 86 percent of persons who met diagnostic criteria for opioid use disorder in 2014 could be classified as dependent on opioids.
Adverse consequences associated with prescription drug misuse have also increased. Prescription drugs, especially opioid analgesics, have increasingly been implicated in drug overdose deaths over the last decade.
The economic costs of illegal drug use, including the use of medications that are prescribed for others, are considerable. According to the Office of National Drug Control Policy, the economic cost of drug addiction in the United States was estimated at $193 billion in 2007, the last available estimate.
Opioid use disorder is a treatable medical condition from which it is possible to recover.
MAT is the use of medication in combination with behavioral health services to provide a whole-patient, individualized approach to the treatment of substance use disorder, including opioid use disorder.
Methadone, buprenorphine, and naltrexone are the three main types of active ingredients
There is a long history of laws and rules to protect people from unnecessary or inappropriate exposure to opioids. Two important laws are the CSA and the Controlled Substances Import and Export Act, which became law in 1970. Together, these statutes and their implementing regulations
In 2000, Congress amended the CSA (21 U.S.C. 801
Under the provisions of the CSA implementing regulations (21 CFR 1301.28(b)(1)(iii) and (iv)), the 30-patient limitation applied equally to individual practices and to group practices (
To be able to prescribe buprenorphine for the maintenance or detoxification of opioid use disorder, qualified practitioners must file a Request for Patient Limit Increase with SAMHSA. In accordance with 21 U.S.C. 823(g)(2)(D)(iii), SAMHSA processes the Request for Patient Limit Increase by verifying the practitioner's medical license and qualification to prescribe buprenorphine, and informs the DEA of whether the practitioner meets all of the statutory requirements for a waiver. If the statutory requirements for a waiver are met, the DEA verifies the practitioner's current registration and assigns an identification number to the practitioner. This information is conveyed to the practitioner by a letter issued from SAMHSA. At this point, the practitioner is considered to be a waivered practitioner.
Waivered practitioners must comply with all sections of the CSA regarding validity of prescriptions, recordkeeping, inventory, and medication administration or dispensing. DEA is authorized to conduct periodic on-site inspections of all registrants. As of 2013, DEA had systematically visited nearly all waivered practitioners. Most inspections were uneventful, and the majority of practitioners were found to be in compliance. Problems encountered typically involved administrative issues and required practitioners to make changes to recordkeeping practices. Should DEA find violations of law, it can revoke a practitioner's right to prescribe buprenorphine and take further legal action, if necessary.
Evaluations of the process for granting waivers under the 21 U.S.C. 823(g)(2) waiver system are limited. In 2006, SAMHSA published the results of an evaluation that examined the availability and effectiveness of treatment as well as adverse consequences.
A number of barriers to MAT adoption using buprenorphine in an office-based setting were identified in this evaluation, with three in particular that were consistently identified amongst waivered practitioners as problematic: (1) The 30-patient limit, (2) limited third-party reimbursement, and (3) high medication/treatment costs. Additional barriers identified include a hesitation to initiate buprenorphine prescribing because of (1) a lack of a sufficient number of patients needing MAT for opioid use disorders, (2) difficult initial treatment setup and logistics, and (3) patients' reluctance around counseling as a component of treatment. A number of non-waivered practitioners cited common challenges to obtaining a waiver, including lack of appropriate training or experience, concerns about recordkeeping and potential audits by DEA, and a scarcity of appropriate concomitant counseling resources in their areas.
More recently, in September 2014, SAMHSA, in partnership with the National Institute on Drug Abuse, convened a meeting of expert professionals for a Buprenorphine Summit to gather the perspectives of leaders from the field regarding the state of practice and their assessment of possible strategies for moving forward. This Summit presented an opportunity for active and collaborative discussion about caring for patients; designing, operating, and sustaining programs; supporting recovery; and training practitioners. The participants explored what is known about the adoption of MAT with buprenorphine-containing products to treat opioid use disorder; reasons why it has not been as widely prescribed as might have been expected; and ways that Federal agencies, health professionals, and concerned individuals might enable buprenorphine treatment to become more accessible.
Participants from the Summit provided some reasons waivered practitioners were not prescribing buprenorphine, including but not limited to the following: Practitioners do not have practice partners with waivers or practice partners who can provide cross-coverage because of the interpretation of the patient limit; they lack institutional support; their community lacks psychosocial resources for patients; they feel that with current patient limits, they cannot treat a sufficient volume of patients to meet all of the costs of providing buprenorphine given current third-party reimbursement; the regulations and scrutiny particular to prescribing buprenorphine can make them feel as if they are doing something questionable by prescribing it; and current confidentiality rules make it difficult to integrate substance use disorder care with primary care.
Some of the ideas that came out of the Summit included strategies to expand availability of buprenorphine treatment for opioid use disorders, such as
In the intervening 15 years since enactment of 21 U.S.C. 823(g)(2), there have been a number of changes, including the amendment that (1) allowed for practitioners in group practices to prescribe up to 30 patients individually regardless of whether they are in a group or sole practice, and (2) allowed for practitioners who had a waiver for at least 1 year to submit a second NOI to treat up to 100 patients at a time. Other changes include expansion in insurance coverage and parity protections due to passage of the Mental Health Parity and Addiction Equity Act, as well as the Affordable Care Act. Educational and training activities have also expanded, including the FDA Risk Evaluation and Mitigation Strategy (REMS) for buprenorphine and SAMHSA's Provider Clinical Support System for MAT. In addition, a new subspecialty board certification has been developed for allopathic physicians in addiction medicine, creating a pathway for more physicians to obtain broader knowledge of substance use disorders in general.
Despite this progress, the nation finds itself in the midst of a public health crisis of opioid addiction, misuse, and related morbidity and mortality.
There are approximately 1,400 OTPs and 31,857 practitioners waived to prescribe buprenorphine. The use of extended-release injectable naltrexone has also made an important contribution to increasing access to MAT in the private physician office-based setting, but the number of patients receiving treatment with naltrexone in such settings is not known. Providers wishing to serve more people have the option of both office-based MAT with buprenorphine products as well as specialty addiction treatment programs that include an OTP. However, recent research has also shown that an estimated 1 million people out of 2.3 million individuals in the U.S. with opioid abuse or dependence were untreated.
While the Federal Guidelines for OTPs, published early in 2015, promote the use of both buprenorphine and naltrexone, in addition to methadone, in the approximately 1,400 OTPs, increasing access to MAT through OTPs is limited by several factors. These factors include the fact that the patient capacity of individual OTPs is typically determined by State licensing requirements, building permits, or other State or local regulations. Geography and the daily nature of methadone treatment are other factors that affect the ability to expand access to MAT via OTPs in general, but they do not directly relate to the capacity of an individual OTP to treat patients. Rather they are limitations on the expansion of access to more individuals utilizing methadone specifically.
HHS is promoting access to all forms of MAT for opioid use disorder through multiple activities included in the Secretary's Opioid Initiative. Given the Secretary's unique authority to increase the patient limit on treatment under 21 U.S.C. 823(g)(2) by rulemaking, the proposed rule is an essential element of a comprehensive approach to increasing access to MAT.
Increasing the limits on the number of patients per waivered practitioner has been requested by many individuals, organizations, and entities. In a letter to the Secretary, ASAM notes that the prescribing limit is a major barrier to patient access to care and the current limits place arbitrary limits on the number of patients a practitioner can treat. It also notes that no other medications are limited in such a manner.
In sum, given the public health crisis of opioid misuse and abuse and the treatment gap between those individuals with an opioid use disorder and those currently receiving treatment, this proposed rule is needed to raise the patient cap in an effort to increase access to MAT with buprenorphine and associated counseling and supports. In keeping with the spirit of mental health parity, we emphasize that competency in addiction care should exist throughout the healthcare continuum. To balance optimal access and safety, we strive to ensure that the credentials needed to prescribe MAT are within reach for interested physicians, programs are practical to implement, and reporting requirements are not perceived as a barrier to participation. We seek comment on whether the proposed rule appropriately strikes this balance.
To date, SAMHSA has implemented the provisions of 21 U.S.C. 823(g)(2) without rulemaking due to the clear and specific provisions included in the statute. As authorized by the statute at 21 U.S.C. 823(g)(2)(B)(iii), SAMHSA is initiating rulemaking at this time to increase access to MAT with
Practitioners authorized to treat up to 200 patients under 21 U.S.C. 823(g)(2) would be required to meet infrastructure, capacity, and reporting requirements that exceed those required for the lower limits. The incremental increase from 100 to 200 patients and the concomitant reporting requirements would allow the Department to monitor the quality of care being delivered, identify any changes in the rate of diversion, and improvements in health outcomes for opioid-dependent patients. It would attach additional criteria and responsibilities to practitioners who would be able to treat up to 200 patients with the specific aims of ensuring quality of care and minimizing diversion. Importantly, the additional criteria and responsibilities are not intended to be unduly burdensome to the practitioner who wishes to expand his or her MAT treatment practice and we seek comment on the associated burden. Rather, they are intended to reflect the current standard of care for the treatment of opioid use disorder while also recognizing the growing demand for opioid use disorder treatment integrated into the non-specialist practice in more mainstream settings. This proposed rule does not add these additional requirements to practitioners who have a waiver to treat 100 or fewer patients under 21 U.S.C. 823(g)(2). The proposed rule also would create an option for an increased patient limit for practitioners responding to emergency situations that require immediate, increased access to MAT pharmacotherapies. Also included in the proposed rule are key definitions.
This proposal would add subpart F to 42 CFR part 8. To accomplish this, additional changes would be made to part 8. Proposed changes to part 8 to accommodate the proposed rule include retitling the part to encompass all MAT over which the Secretary has regulatory authority. Consequently, under the proposed rule, subpart A would be entitled General Provisions. Current subparts A, B, and C would change to subparts B, C, and D, respectively. The titles of these subparts would be revised to make it clear that they apply only to OTPs.
Under the proposed rule, the scope of part 8 would encompass rules that are applicable to OTPs, and to waivered practitioners who seek to provide MAT to more than 100 patients. New subparts B through D under the proposed rule would contain the rules relevant to OTPs. Subpart E would be reserved and Subpart F would contain the proposed new rule. Section 8.1 would also explain that the proposed rules in the new subpart F pertain only to those practitioners using a waiver under 21 U.S.C. 823(g)(2) with a patient limit of 101 to 200.
The definitions section would apply to the entirety of part 8. Definitions that would apply only to OTPs would be revised to reflect this in the specific definition. Two definitions would be eliminated: “Registered opioid treatment program” would be deleted because the term is not used anywhere in the text of the regulations; and the definition for “opiate addiction” would be renamed “opioid use disorder.”
This proposed rule also includes a definition of “patient.” At present, the definition of “patient” in § 8.2 is limited to those individuals receiving treatment at an OTP, which excludes those individuals receiving office-based opioid treatment with buprenorphine,
The proposed rule would revise the definition of patient to make it inclusive of all persons receiving MAT with an opioid medication, consistent with the expanded scope of proposed revisions to 42 CFR part 8. By proposing that patient “means any individual who receives MAT from a practitioner or program subject to this part,” the definition would apply to the entire period during which the eligible medication is expected to be used by the patient while under that practitioner's care. For example, if a practitioner provides cross-coverage for another practitioner, and in the course of that coverage the covering practitioner provides a prescription for buprenorphine, the patient counts towards the cross-covering practitioner's patient limit until the prescription has expired. However, if a cross-covering practitioner is merely available for consult but does not provide a prescription for buprenorphine while the prescribing practitioner is away, the patients being covered do not count towards the cross-covering practitioner's patient limit at all. Therefore, this definition would be expected to help ensure consistency and clarity in how waivered practitioners count patients towards the limit. We seek comments on this definition and other examples of coverage arrangements where clarity would be helpful.
The proposed rule would include the following definition of patient limit: “the maximum number of individual patients a practitioner may treat at any time using covered medications.”
Taken together, these two definitions would provide clear and fair guidance for regulatory enforcement and would be expected to reduce undercounting of patients by practitioners and, furthermore, would exclude those patients with whom a practitioner interacts as a professional courtesy or in a transitory fashion on behalf of another waivered physician from being counted against the covering practitioner's patient limit for an extended period of time. In this way it is expected that waivered practitioners will be able to provide reciprocal cross-coverage of patients for brief periods, such as weekends or vacations, without implications, long-term or possibly at all, for their respective individual limits.
Other new definitions would include “behavioral health services,” “nationally recognized evidence-based guidelines” and “emergency situation.” These definitions would be in-line with definitions offered elsewhere and applied in the field. They would be minimally modified from other existing definitions to clarify the application of these terms to the unique circumstances of the practitioner providing MAT under 21 U.S.C. 823(g)(2).
In addition, this proposed rule would define “nationally recognized evidence-based guidelines” to mean a document produced by a national or international medical professional association, public health entity, or governmental body
Proposed retitled subparts B, C, and D would contain §§ 8.3 through 8.34. Proposed changes to these sections would be limited to changing the mailing address for program certification and accreditation body approval and updating terms, such as “opiate” and “opiate addiction” to “opioid” and “opioid use disorder,” respectively.
This is the first proposed section of the new subpart F. Proposed § 8.610 would describe which practitioners are eligible for a patient limit of 200. Under routine conditions, a practitioner would qualify for the higher limit in one of two ways: By possessing subspecialty board certification in addiction medicine or addiction psychiatry or by practicing in a qualified practice setting as defined in the rule. In either case, practitioners with the higher limit would have to possess a waiver to treat 100 patients for at least 1 year in order to gain experience treating at a higher limit. The purpose of offering the 200 patient limit to practitioners in these two categories is to recognize the benefit offered to patients through: (1) The advanced training and maintenance of knowledge and skill associated with the acquisition of subspecialty board certification; and (2) the higher level of direct service provision and care coordination envisioned in the qualified practice setting. This approach would restrict access to the 200 patient limit to a subset of the practitioners waivered to provide care to up to 100 patients. In addition to ensuring higher quality of care, the criteria for the higher limit would be intended to minimize the risk of diversion of controlled substances to illicit use and accidental exposure that could result from increased prescribing of buprenorphine. A practitioner with board certification in an addiction subspecialty would have to have the training and experience necessary to recognize and address behaviors associated with increased risk of diversion. In the qualified practice settings, SAMHSA believes that the care team and practice systems will function to help ensure this same level of care. We seek comments on this proposed approach, including comments on whether there are other ways for SAMHSA to ensure quality and safety while encouraging practitioners to take on additional patients.
Proposed § 8.615 would describe the necessary elements of a qualified practice setting, which can include practices with as few as one waived provider as long as these criteria are met and can include both private practices and community-based clinics. Necessary elements of a qualified practice setting would include having: (1) The ability to offer patients professional coverage for medical emergencies during hours when the practitioner's practice is closed; this does not need to involve another waivered practitioner, only that coverage be available for patients experiencing an emergency even when the office is closed; (3) the ability to ensure access to patient case-management services; (4) health information technology (HIT) systems such as electronic health records, when practitioners are required to use it in the practice setting in which he or she practices; (5) participation in a prescription drug monitoring program (PDMP), where operational, and in accordance with State law. PDMP means a statewide electronic database that collects designated data on substances dispensed in the State. For practitioners providing care in their capacity as employees or contractors of a Federal government agency, participation in a PDMP would be required only when such participation is not restricted based on State law or regulation based on their state of licensure and is in accordance with Federal statutes and regulations; and (6) employment, or a contractual obligation to treat patients in a setting that has the ability to accept third-party payment for costs in providing health services, including written billing, credit and collection policies and procedures, or Federal health benefits.
The elements were identified as common to many high-quality practice settings, which includes both private practices as well as federally qualified health centers and community mental health centers, and therefore worthy of replication. The elements would be expected to be common to OTPs, and OTPs currently in operation but not providing MAT under 21 U.S.C. 823(g)(2). Taken together, this would facilitate additional opportunities to expand access to MAT. Another consideration in the selection of these elements would be the need to limit the expansion of group practices formed for the sole purpose of pooling the individual practitioner limits to maximize revenue but which fail to offer a full continuum of services. HHS seeks comment on additional, alternate pathways by which a practitioner may become eligible to apply for a patient waiver of 200.
Proposed § 8.620 would describe the process to request a patient limit of 200. Similar to the waiver process for the 30 and 100 patient limits, the process would begin with filing a Request for Patient Limit Increase. A proposed draft of the Request for Patient Limit Increase is in the docket. Public comment is requested. The higher patient limit would carry with it greater responsibility for behavioral health services, care coordination, diversion control, and continuity of care in emergencies and for transfer of care in the event approval to treat up to 200 patients is not renewed or is denied. The new Request for Patient Limit Increase process would require providers to affirm that they would meet these requirements. The proposed definitions of “behavioral health services,” “diversion control plan,” “emergency situation,” “nationally recognized evidence-based guidelines” and “practitioner incapacity” would be provided in § 8.2 to assist practitioners in understanding what is expected of them in making these attestations. These responsibilities would be aligned with the standards of ethical medical and business practice and would not be expected to be burdensome to practitioners. Resources exist to help in the development in patient placement in the event transfer to other addiction treatment would be required, for example, if a provider chose to no longer practice at the 200 patient limit. Examples of these resources would include but are not limited to: Single
Proposed § 8.625 would describe how SAMHSA will process a Request for Patient Limit increase. The process for requesting a patient limit up to 200 would be processed similarly to how the current 30 or 100 patient waiver is processed, with one difference. Whereas the lower patient limit waivers are not time limited, the waiver for the higher limit of 200 would have a term not to exceed 3 years. Thus, a practitioner would be required to submit a new Request for Patient Limit Increase every 3 years if he or she desired to continue treating up to 200 patients.
Proposed § 8.630 would describe the conditions for maintaining a waiver for each 3-year period for which waivers are valid, including maintenance of all eligibility requirements specified in § 8.610, and all attestations made in accordance with § 8.620(b). Compliance with the requirements specified in § 8.620 would have to be continuous. This includes compliance with reporting requirements specified in § 8.635.
Proposed § 8.635 would describe the reporting requirements for practitioners whose Request for Patient Limit Increase is approved under § 8.625. Reporting would be required annually to ensure that eligibility requirements are being maintained and that waiver conditions are being fulfilled. We seek comments on whether the proposed reporting periods and deadline could be combined with other, existing reporting requirements in a way that would make reporting less burdensome for practitioners. Reporting requirements may include a request for information regarding:
Proposed § 8.640 would describe the process for a practitioner renewing his or her approval for the higher patient limit. In order for a practitioner to renew an approval, he or she would have to submit a renewal Request for Patient Limit Increase in accordance with the procedures outlined under § 8.620 at least 90 days before the expiration of the approval term.
Proposed § 8.645 would describe the responsibilities of practitioners who do not submit a renewal Request for Patient Limit Increase or whose request is denied. Under § 8.620(b)(7) practitioners would notify all patients affected above the 100 patient limit, that the practitioner would no longer be able to provide MAT services using covered medications and would make every effort to transfer patients to other addiction treatment.
Proposed § 8.650 would describe under what circumstances SAMHSA would suspend or revoke a practitioner's patient limit increase of 200. If SAMHSA had reason to believe that immediate action would be necessary to protect public health or safety, SAMHSA would suspend the practitioner's patient limit increase of 200. If SAMHSA determined that the practitioner had made misrepresentations in his or her Request for Patient Limit Increase, or if the practitioner no longer satisfied the requirements of this subpart, or he or she has been found to have violated the CSA pursuant to 21 U.S.C. 824(a), SAMHSA would revoke the practitioner's patient limit increase of 200.
Proposed § 8.655 would describe the process, including the information and documentation necessary, for a practitioner with an approved 100 patient limit, to request approval to temporarily treat up to 200 patients in an emergency situation. The intention of this provision would be to help assure continuity of care for patients whose care might otherwise be abruptly terminated due to the death or disability of their practitioner. This provision would also help communities respond rapidly to a sudden increase in demand for medication assisted treatment. Sudden increases in demand for treatment may be experienced when there is a local disease outbreak associated with drug use, or when a natural or human-caused disaster either displaces persons in treatment from their practitioner or program or destroys program infrastructure. The emergency provision generally would not be intended to correct poor resource deployment due to lack of planning. The emergency provision of the proposed rule would only be considered if other options for addressing the increased demand for medication-assisted treatment could not address the situation.
The practitioner must provide information and documentation that: (1) Describes the emergency situation in sufficient detail so as to allow a determination to be made regarding whether the emergency qualifies as an emergency situation as defined in § 8.2, and that provides a justification for an immediate increase in that practitioner's patient limit; (2) Identifies a period of time in which the higher patient limit should apply, and provides a rationale for the period of time requested; and (3) Describes an explicit and feasible plan to meet the public and individual health needs of the impacted persons once the practitioner's approval to treat up to 200 patients expires. Prior to taking action on a practitioner's request under this section, SAMHSA shall consult, to the extent practicable, with the appropriate governmental authority in order to
Under the Paperwork Reduction Act of 1995 (PRA), agencies are required to provide 60-day notice in the
1. Whether the information collection is necessary and useful to carry out the proper functions of the agency;
2. The accuracy of the agency's estimate of the information collection burden;
3. The quality, utility, and clarity of the information to be collected; and
4. Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Under the PRA, the time, effort, and financial resources necessary to meet the information collection requirements referenced in this section are to be considered in rulemaking. We explicitly seek, and will consider, public comment on our assumptions as they relate to the PRA requirements summarized in this section. This proposed rule includes changes to information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements, as defined under the PRA (5 CFR part 1320). Some of the provisions would involve changes from the information collections set out in the previous regulations.
Information collection requirements would be:
A. Approval, 42 CFR 8.620(a) through (c): In order for a practitioner to receive approval for a patient limit of 200, a practitioner must meet all of the requirements specified in § 8.610 and submit a Request for Patient Limit Increase to SAMHSA that includes all of the following:
• Completed 3-page Request for Patient Limit Increase Form, a draft of which is available for review in the public docket;
• Statement certifying that the practitioner:
○ Will adhere to nationally recognized evidence-based guidelines for the treatment of patients with opioid use disorders;
○ Will provide patients with necessary behavioral health services as defined in § 8.2 or will provide such services through an established formal agreement with another entity to provide behavioral health services;
○ Will provide appropriate releases of information, in accordance with Federal and State laws and regulations, including the Health Information Portability and Accountability Act Privacy Rule and part 2 of this chapter, if applicable, to permit the coordination of care with behavioral health, medical, and other service practitioners;
○ Will use patient data to inform the improvement of outcomes;
○ Will adhere to a diversion control plan to manage the covered medications and reduce the possibility of diversion of covered medications from legitimate treatment use;
○ Has considered how to assure continuous access to care in the event of practitioner incapacity or an emergency situation that would impact a patient's access to care as defined in § 8.2; and
○ Will notify all patients above the 100 patient level, in the event that the request for the higher patient limit is not renewed or is denied, that the practitioner will no longer be able to provide MAT services using buprenorphine to them and make every effort to transfer patients to other addiction treatment;
B. Diversion Control Plan, 42 CFR 8.12(c)(2): Creating and maintaining a diversion control plan is one of the requirements that practitioners must attest to before they are approved to treat at the higher limit. This plan is not required to be submitted to SAMHSA.
C. Reporting, 42 CFR 8.635: Reporting will be required annually to ensure that eligibility requirements are being maintained and that waiver conditions are being fulfilled. Reporting requirements may include a request for information regarding: (1) The average monthly caseload of patients receiving buprenorphine-based MAT, per year; (2) the percentage of active buprenorphine patients (patients in treatment as of reporting date) who received psychosocial or case management services (either by direct provision or by referral) in the past year due to treatment initiation or change in clinical status; (3) Percentage of patients who had a prescription drug monitoring program query in the past month; (4) Number of patients at the end of the reporting year who: (a) Have completed an appropriate course of treatment with buprenorphine in order for the patient to achieve and sustain recovery, (b) Are not being seen by the provider due to referral by the provider to a more or less intensive level of care, (c) No longer desire to continue use of buprenorphine, (d) Are no longer receiving buprenorphine for reasons other than (a) through (c). To facilitate public comment, we have placed a draft version of the collection template in the public docket.
D. Renewal, 42 CFR 8.640: Describes the process for a practitioner renewing his or her approval for the higher patient limit. In order for a practitioner to renew an approval, he or she must submit a renewal Request for Patient Limit Increase in accordance with the procedures outlined under § 8.620 at least 90 days before the expiration of the approval term.
E. Patient Notice, 42 CFR 8.645: Describes the responsibilities of practitioners who do not submit a renewal Request for Patient Limit Increase. Practitioners who do not renew their Request for Patient Limit Increase must notify all patients above the 100 patient limit that the practitioner will no longer be able to provide MAT services using covered medications and make every effort to transfer patients to other addiction treatment. The Patient Notice is a model notice to guide practitioners in this situation when they notify their patients.
F. Emergency Provisions, 42 CFR 8.655: Describes the process for practitioners with a current waiver to prescribe up to 100 patients, and who are not otherwise eligible to treat up to 200 patients, to request a temporary increase to treat up to 200 patients in order to address emergency situations as defined in § 8.2. To initiate this process, the practitioner shall provide information and documentation that: (1) Describes the emergency situation in
Annual burden estimates for these requirements are summarized in the following table:
Note that these estimates differ from those found in the RIA because the estimates here are wage cost estimates while the estimates in the RIA are resource cost estimates which incorporate costs associated with overhead and benefits.
For more detailed estimates, please refer to the public docket, which includes a copy of the draft supporting statement associated with this information collection.
HHS has examined the impact of this proposed rule under Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act of 1980 (Pub. L. 96-354, September 19, 1980), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995), and Executive Order 13132 on Federalism (August 4, 1999).
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866. HHS expects that this proposed rule will have an annual effect on the economy of $100 million or more in at least 1 year and therefore is a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act (RFA) requires agencies that issue a regulation to analyze options for regulatory relief of small businesses if a rule has a significant impact on a substantial number of small entities. The RFA generally defines a “small entity” as (1) a proprietary firm meeting the size standards of the Small Business Administration; (2) a nonprofit organization that is not dominant in its field; or (3) a small government jurisdiction with a population of less than 50,000 (States and individuals are not included in the definition of “small entity”). HHS considers a rule to have a significant economic impact on a substantial number of small entities if at least 5 percent of small entities experience an impact of more than 3 percent of revenue. HHS anticipates that the proposed rule will not have a significant economic impact on a substantial number of small entities. We provide supporting analysis in section F.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $144 million, using the most current (2014) implicit price deflator for the gross domestic product. HHS expects this proposed rule to result in expenditures that would exceed this amount.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments or has federalism implications. HHS has determined that the proposed rule, if finalized, would not contain policies that would 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. The proposed changes in the rule represent the Federal Government regulating its own program. Accordingly, HHS concludes that the proposed rule does not contain policies that have federalism implications as defined in Executive Order 13132 and, consequently, a federalism summary impact statement is not required.
Section 303(g)(2) of the CSA (21 U.S.C. 823(g)(2)) allows individual practitioners to dispense and prescribe Schedule III, IV, or V controlled substances that have been approved by the FDA specifically for use in maintenance and detoxification treatment without obtaining the separate registration required by 21 CFR 1301.13(e) and imposes a limit on the
Section 303(g)(2)(B)(iii) of the CSA allows qualified practitioners who file an initial NOI to treat a maximum of 30 patients at a time. After one year, the practitioner may file a second NOI indicating his/her intent to treat up to 100 patients at a time. To qualify, the practitioner must be a practitioner, possess a valid license to practice medicine, be a registrant of the DEA, have the capacity to refer patients for appropriate counseling and other appropriate ancillary services, and have completed required training. The training requirement may be satisfied in several ways: One may hold subspecialty board certification in addiction psychiatry from the American Board of Medical Specialties or addiction medicine from the American Osteopathic Association; hold an addiction certification from the American Society of Addiction Medicine (ASAM); complete an 8-hour training provided by an approved organization; have participated as an investigator in one or more clinical trials leading to the approval of a medication that qualifies to be prescribed under 21 U.S.C. 823(g)(2); or complete other training or have such other experience as the state medical licensing board or Secretary of HHS considers to demonstrate the ability of the practitioner to treat and manage persons with opioid use disorder.
Pursuant to 21 U.S.C. 823(g)(2)(B)(iii), the Secretary is authorized to promulgate regulations that change the total number of patients that a practitioner may treat at any one time.
The laws pertaining to the utilization of buprenorphine were last revised approximately ten years ago at a time when the extent of the opioid public health crisis was less well-documented. The purpose of the proposed rule is to expand access to MAT with buprenorphine while encouraging practitioners administering buprenorphine to ensure their patients can receive the full array of services that comprise evidence-based MAT and to minimize the risk of drug diversion. The proposed rule would revise the highest patient limit from 100 patients per practitioner with an existing waiver (waivered practitioner) to 200 patients for practitioners who meet certain criteria in addition to those established in statute. Practitioners who have had a waiver to treat 100 patients for at least one year could obtain approval to treat up to 200 patients if they meet the requirements defined in this proposed rule and after submitting a Request for Patient Limit Increase to SAMHSA. Practitioners approved to treat up to 200 patients will also be required to accept greater responsibility for providing behavioral health services and care coordination, and ensuring quality assurance and improvement practices, diversion control, and continuity of care in emergencies. The higher limit will also carry with it the duty to regularly reaffirm the practitioner's ongoing eligibility and to participate in data reporting and monitoring as required by SAMHSA. In addition, practitioners in good standing with a current waiver to treat up to 100 patients (
The United States is facing an unprecedented increase in prescription opioid abuse, heroin use and opioid-related overdose deaths. In 2014, 18,893 overdose deaths involved prescription opioids and 10,574 involved heroin.
Beyond the increase in overdose deaths, the health and economic consequences of opioid use disorders are substantial. In 2011, the most recent year data are available, an estimated 660,000 emergency department visits were due to the misuse or abuse of prescription opioids, heroin, or both.
Beginning around 2006, the United States started to experience a significant increase in the rate of hepatitis C virus infections. The available epidemiology indicates this increase is largely due to the increased injection of prescription opioids and heroin.
There is robust literature documenting the effectiveness and cost-effectiveness of the use of buprenorphine in the treatment of opioid use disorder. Buprenorphine has been shown to increase treatment retention and to reduce opioid use, relapse risk, and risk behaviors that transmit HIV and hepatitis.
Despite these well-documented benefits, buprenorphine treatment for opioid use disorder is significantly underutilized and often does not incorporate the full scope of recommended clinical practices that make up evidence-based MAT. Generally, there is significant unmet need for MAT treatment among individuals with opioid use disorders.
Evidence suggests that utilization of buprenorphine is limited directly by the existence of treatment caps. Practitioners currently providing MAT with buprenorphine under 21 U.S.C. 823(g)(2) report that being limited to treating not more than 100 patients at a time is a barrier to expanding treatment.
In addition to direct barriers to treating additional patients imposed by the patient limit, there are indirect barriers to expanding treatment capacity. In particular, increases in a practitioner's ability to expand his or her patient base will allow the practitioner to take advantage of economies of scale to increase the practice's efficiency. For example, a practitioner with a larger practice is more likely to be able to afford to hire specialized support staff, which allows the practitioner to reduce time spent on tasks best suited for another individual. This may help to enable the provision of the full complement of ancillary services that make up evidence-based MAT. Increasing a practitioner's maximum capacity for treatment has the potential to make treating patients with buprenorphine more economically feasible, which furthers the argument that these proposed changes will increase capacity to prescribe buprenorphine.
The statutory change implemented in 2007 that increased the limit on the number of buprenorphine patients a practitioner could treat from 30 to 100, after having a 30 patient limit for 1 year, was associated with a significant increase in the use of buprenorphine.
This proposed rule directly expands opportunities for physicians who currently treat or who may treat patients with buprenorphine, as they will now have the potential to treat up to 200 patients with buprenorphine. We believe that this may translate to a
Relatedly, this proposed rule may increase the value of the waiver to treat opioid use disorder under 21 U.S.C. 823(g)(2). The proposed rule would require practitioners to have a waiver to treat 100 patients for 1 year and to have a subspecialty board certification in addiction medicine, a subspecialty board certification in addiction psychiatry, or to practice in a qualified practice setting as defined in the rule in order to request approval to treat 200 patients. If getting to the 200-patient limit provides sufficient benefits to practitioners, this proposed rule may also increase incentives for other practitioners to apply for the lower patient limit waivers, insofar as they are milestones towards the 200-patient cap. In addition, this rule may also make it more valuable for practitioners to have subspecialty board certifications in addiction medicine and addiction psychiatry, or to practice in a qualified practice setting. The proposed rule, then, may increase the number of practitioners in these categories and thus the number of practitioners eligible for the 200 patient limit in the future.
Permitting practitioners to treat up to 200 patients will only be successful if it results in practitioners serving additional patients. As discussed previously, there are many reasons to expect this to happen as a result of finalization of this proposed rule. In addition, we expect that other factors could amplify the impact of the changes proposed in the rule. First, following the implementation of the Affordable Care Act, health insurance coverage has expanded dramatically in the United States. The uninsured rate among adults age 18-64 declined from 22.3 percent in 2010 to 12.7 percent during the first 6 months of 2015.
Lack of practitioner time to treat patients with opioid use disorder, which includes a patient exam, medication consultation, counseling, and other appropriate treatment services, and lack of behavioral health staff to provide these ancillary services, are additional barriers to providing MAT with buprenorphine in the office-based setting.
Discussions with stakeholders about approaches to expanding access to MAT, including the use of buprenorphine-based MAT, suggest that expanding the patient limit in general will result in increased efficiencies in treating opioid use disorder patients. It will allow treating practitioners to provide the physician-appropriate services consistent with their waiver. It will provide more efficient supportive care, not related to prescribing or administering buprenorphine-containing products, by allowing the treating practitioner to supervise this care, which can be provided by physician assistants, nurse practitioners, nurse case managers, and other behavioral health specialists.
Following publication of a final rule that builds upon this proposal and public comments, SAMHSA will work to educate providers about the requirements and opportunities for requesting and obtaining approval to treat up to 200 patients under 21 U.S.C. 823(g)(2). SAMHSA will prepare materials summarizing the changes as a result of the final rule, and provide these materials to practitioners potentially affected by the rulemaking upon publication of the final rule. SAMHSA has already established channels for disseminating information about rule changes to stakeholders, it is estimated that preparing and disseminating these materials will cost approximately $40,000, based upon experience soliciting public comment on past rules and publications such as
We expect that, if this proposed rule is finalized, practitioners potentially affected by this proposed policy change will process the information and decide how to respond. In particular, they will likely evaluate the requirements and opportunities associated with the ability to treat up to 200 patients, and decide whether or not it is advantageous to pursue approval to treat up to 200 patients and make any necessary changes to their practice, such as obtaining subspecialty board certifications in either addiction medicine or addiction psychiatry, or the ability to treat patients in a qualified practice setting.
We estimate that practitioners may spend an average of thirty minutes processing the information and deciding what action to take. According to the U.S. Bureau of Labor Statistics,
Practitioners who want to treat up to 200 patients at a given time are required to submit a Request for Patient Limit Increase form to SAMHSA. The proposed form is three pages in length. We estimate that the form takes a practitioner an average of 1 hour to complete the first time it is completed, implying a cost of $187.48 per submission after adjusting upward by 100 percent to account for overhead and benefits. A draft Request for Patient Limit Increase form is available in the docket. We seek comment on our assumptions regarding the time required to complete the form.
We do not have ideal information with which to estimate the number of practitioners who will submit a Request for Patient Limit Increase form in response to this proposed rule, and we therefore acknowledge uncertainty regarding the estimate of the total associated cost. However, based on the experience with the patient limit increase from 30 to 100 implemented in 2007
After approval, a practitioner would need to resubmit a Request for Patient Limit Increase every 3 years to maintain his or her waiver to treat up to 200 patients. A practitioner would use the same 3-page Request for Patient Limit Increase used for an initial waiver request. We estimate that this will take 30 minutes because practitioners will be more familiar with the Request for Patient Limit Increase. Consistent with the physician wage estimate above, we estimate that resubmissions will require a practitioner an average of 30 minutes to complete, implying a cost of $93.74 per resubmission. To calculate costs associated with resubmission, we assume that all physicians who submit a Request for Patient Limit Increase will submit a renewal 3 years later. Our estimates are summarized in the table below.
Practitioners may also be interested in the ability to eventually treat up to 200 patients, and may make changes toward achieving that goal. As discussed previously, these proposed changes may increase the number of practitioners who apply for a waiver to treat 30 or 100 patients. This would require practitioners to complete the required training, possess a valid license to practice medicine, be a registrant of DEA, and have the capacity to refer patients for appropriate counseling and other appropriate ancillary services. In addition, these proposed changes could increase the number of practitioners who seek subspecialty board certifications in either addiction medicine or addiction psychiatry or meet the requirements for practicing in a qualified practice setting as outlined in the proposed rule. This would likely include practice experience requirements, fees and time associated with preparing for and taking an exam, time and fees for continuing medical education requirements, and payment of certification fees.
We do not have information to estimate the number of practitioners who will change behavior along these dimensions in response to this proposed rule. We seek comment on information which will allow us to estimate the number of practitioners who would apply to treat additional patients, the number who will seek additional subspecialty board certifications, and the number who will move toward meeting the requirements for treating in a qualified practice setting in response to the proposed changes.
In addition to the costs associated with practitioners seeking approval for the higher patient limit, costs will be incurred by SAMHSA and DEA in order to process the additional Requests For Patient Limit Increase generated by the proposed rule. For purposes of analysis, and based on contractor estimates, SAMHSA estimates that it will pay a contractor $100 to process each waiver. As discussed previously, we estimate that between 500 and 1,800 practitioners will request approval to treat 200 patients within the first year of the rule, and between 100 and 300 additional practitioners will request approval to treat 200 patients in each of the subsequent 4 years. In addition, we estimate that physicians will resubmit 500 to 1,800 renewals in year 4, and 100 to 300 renewals in year 5. As a result, we estimate costs to SAMHSA to process these waivers of $50,000-$180,000 in year 1, $10,000-$30,000 in year 2, $10,000-$30,000 in year 3, $60,000-$210,000 in year 4, and $20,000-$60,000 in year 5 following publication of the final rule. We estimate that DEA will allocate the equivalent of 1 FTE at the GS-11 level to process the additional requests coming to DEA for issuance of a new DEA number designating the provider as eligible to prescribe buprenorphine for the treatment of opioid use disorder as a result of this proposed rule. We estimate the associated cost is $144,238, which we arrive at by multiplying the salary of a GS-11 employee at step 5, which is $72,219 in 2015, by two to account for overhead and benefits.
Once requests to treat up to 200 patients generated by the proposed rule are processed, approved practitioners would be able to increase the number of patients they treat with buprenorphine. These patients, then, could utilize additional medical services that are consistent with the expectations for high-quality, evidence-based MAT proposed in the rule. We estimate the cost for buprenorphine and these additional medical services, including behavioral health and psychosocial services, as a result of the proposed rule to total $4,349 per patient per year, as described below.
This estimate was derived using claims data from the 2009-2014 Truven Health MarketScan® database. According to the MarketScan® data, the annual cost of buprenorphine prescriptions and ancillary services received totaled $3,500 for individuals with private insurance and $3,410 for individuals with Medicaid. Specifically, the average annual cost of buprenorphine prescriptions was $2,100 for commercial insurance based on receipt of an average of seven buprenorphine prescriptions annually and $2,600 for Medicaid based on receipt of an average of 10 buprenorphine prescriptions annually.
According to the MarketScan® data, approximately 69 percent of Medicaid patients and 45 percent of privately insured patients received an outpatient psychosocial service related to substance use disorder in addition to their buprenorphine prescription. The average number of visits among those who received any psychosocial service was eight for privately insured patients at an average cost of $3,000 per year and 10 for Medicaid patients at an average cost of $1,100 per year. We assumed that the quality of care would increase among patients treated by practitioners with the 200-patient limit due to the extra oversight and quality of care requirements in the proposed rule. Specifically, we assumed that 80 percent of patients would receive outpatient psychosocial services. This would raise the cost of providing MAT with buprenorphine to $4,590 for commercial insurance and $3,525 for Medicaid beneficiaries. Based on data from IMS Health, it is estimated that approximately 18 percent of individuals receiving MAT with buprenorphine are Medicaid enrollees. Thus, we arrived at the estimated average cost for individuals new to the treatment system as a result of the proposed rule to be $4,349 per patient per year.
The total resource costs associated with additional treatment is the product of additional treatment costs per person and the number of people who will receive additional treatment as a result of the proposed rule. For purposes of analysis, we assume that each practitioner who requests approval to treat 200 patients will treat between 20 and 40 additional patients each year. This is based on our experience with the increase from the 30 patient limit to the 100 patient limit.
Evidence suggests that the benefits associated with additional buprenorphine utilization are likely to exceed their cost. One study estimated the costs and Quality Adjusted Life Year (QALY) gains associated with long-term office-based treatment with buprenorphine-naloxone for clinically stable opioid-dependent patients compared to no treatment. The authors estimate total treatment costs over 2 years of $7,700 and an associated 0.22 QALY gain compared to no treatment in their base case.
While we expect many benefits associated with this proposed rule, it is possible that there would be unintended negative consequences. First, prior research looked at Utah statewide increases in buprenorphine use and the number of reported pediatric exposures, and found that as buprenorphine use increased between 2002 and 2011, the number of unintentional pediatric exposures in the State increased.
It is important to note that studies have found that the motivation to divert buprenorphine is often associated with lack of access to treatment or using the medication to manage withdrawal—as opposed to diversion for the medication's psychoactive effect.
Moreover, to reduce the risk of diversion, one of the additional requirements placed on providers who seek the 200 patient limit is implementation of a diversion control plan. However, it is possible that State and local law enforcement could incur additional costs if diversion increases as a result of this proposed rule. We do not have sufficient information to estimate the extent to which these unintended consequences could occur.
Under this proposed rule, as outlined earlier, practitioners approved to treat up to 200 patients would have to submit information about their practice annually to SAMHSA for purposes of monitoring regulatory compliance. The goal of the reporting requirement is to ensure that practitioners are providing high-quality, evidence-based buprenorphine treatment. It is anticipated that the data for the reporting requirement can be pulled directly from an electronic or paper health record, and that practitioners would not have to update their record-keeping practices after receiving approval to treat 200 patients. We estimate that compiling and submitting the report would require approximately 1 hour of physician time and 2 hours of administrative time. According to the U.S. Bureau of Labor Statistics
As noted above, using the mid-point estimate, we estimate that 1,150 practitioners will request a 200-patient waiver in year 1 and 200 practitioners will request a 200-patient waiver in subsequent years. We assume that all of these requests will be approved. The costs associated with this reporting
DEA may also incur costs in association with this proposed rule if, for example, DEA increases the number of site visits they conduct because providers are treating more than 100 patients. We tentatively assume that DEA will incur no costs as a result of these reporting requirements, and we seek comment on this assumption.
Under the proposed rule, practitioners in good standing with a current waiver to treat up to 100 patients may request temporary approval to treat up to 200 patients in specific emergency situations. As discussed previously, we anticipate that qualifying emergency situations will occur very infrequently. We estimate that practitioners will request ten of these waivers in each year. We estimate that requesting this waiver would require approximately 1 hour of physician time and 2 hours of administrative time, and responding to the request would require resources approximately equivalent to responding the three Requests for Patient Limit Increase submissions, which is $300. As a result, we estimate that this requirement is associated with costs of approximately $7,000 in each year following publication of the final rule. We seek comment on the assumptions in this section.
The proposed rule's impacts will take place over a long period of time. As discussed previously, we expect the existence of the waiver to treat 200 patients will increase the desirability of waivers to treat 30 and 100 patients. This implies that more practitioners will work toward fulfilling the requirements associated with receiving these waivers. Further, this may make practitioners early in their career more likely to choose addiction medicine or addiction psychiatry as their specialty. All of this implies that the proposed rule will have a growing impact on capacity to prescribe buprenorphine as time passes. Since the lack of capacity to treat patients using buprenorphine is a barrier to its utilization, this suggests that the proposed rule will lead to growing increases in the utilization of buprenorphine, and growing increases in the associated positive health and economic effects.
The following table presents these costs and benefits over the first 5 years of the proposed rule.
The total estimated benefits of the changes proposed here are sensitive to assumptions regarding the number of practitioners who will seek a waiver to treat 200 patients as a result of the proposed rule, the number of individuals who will receive MAT as a result of the proposed rule, the average per-person health benefits associated with this additional treatment, and the dollar value of these health improvements. We estimate that 500 to 1,800 practitioners will apply for a waiver to treat up to 200 patients in the first year, and 100 to 300 practitioners will apply for a waiver to treat up to 200 patients in subsequent years following publication of the final rule, with central estimates at the midpoint of each range. For alternative estimates in these ranges using a 3 percent discount rate, all else equal, we estimate annualized benefits ranging from $1,054 million to $3,618 million and annualized costs ranging from $92 million to $313 million.
We estimate that practitioners who receive a waiver to treat 200 patients will treat between 20 and 40 additional patients each year, with a central estimate of an average of 30 additional patients. For alternative estimates of 20 to 40 additional patients per year, all else equal, we estimate annualized benefits using a 3 percent discount rate ranging from $1,557 million to $3,115 million over the 5 years following implementation.
We estimate that individuals who receive MAT as a result of the proposed rule will experience average health improvements equivalent to 0.11 QALYs. For alternative estimates of these health improvements between 0.06 and 0.16 QALYs, all else equal, we estimate annualized benefits using a 3 percent discount rate ranging from $1,274 million to $3,398 million over the 5 years following implementation. To estimate the dollar value of health benefits, we use a value of approximately $460,000 per QALY. For
Alternative assumptions along these four dimensions, when varied together, using a 3 percent discount rate, imply annualized benefit estimates ranging from $250 million to $9,148 million and annualized cost estimates ranging from $62 million to $417 million. We note that, in all scenarios discussed in this section, annualized benefits substantially exceed annualized costs. There are, however, uncertainties not reflected in this sensitivity analysis, which might lead to net benefits results that are smaller or larger than the range of estimates summarized in the following table.
We carefully considered the option of not pursuing regulatory action. However, existing evidence indicates that opioid use disorder and its related health consequences is a substantial and increasing public health problem in the United States, and it can be addressed by increasing access to effective treatment. As discussed previously, the lack of sufficient access to treatment is directly affected by the existing limit on the number of patients each practitioner with a waiver can currently treat using buprenorphine, and removing this barrier to access is very likely to increase the provision of this treatment. Finally, the provision of MAT with buprenorphine provides tremendous benefits to the individual who experiences health gains associated with treatment, as well as to society which bears smaller costs associated with the negative effects of opioid use disorders. These benefits are expected to greatly exceed the costs associated with increases in treatment. As a result, we expect the benefits of the proposed regulatory action to exceed its costs.
We also considered allowing practitioners waivered to treat up to 100 patients to apply for the higher prescribing limit without having to meet the specialty board certification or qualified practice setting requirements as defined in the proposed rule. One important objective of this proposed rule is to expand access while mitigating the risks associated with expanded access. In addition, the effects of this rule are difficult to project, leading us to adopt a conservative approach to increasing access. Given the complexity of the condition, the increased potential for diversion associated with a higher prescribing limit, and the need to ensure high quality care, it was determined that addiction specialist physicians and those with the infrastructure and capacity to deliver the full complement of services recommended by clinical practice guidelines would be best suited to balance these concerns.
Finally, we considered the alternative of having no reporting requirement for physicians with the 200-patient limit. Although this alternative would reduce the 1 hour of physician time and 2 hours of administrative time estimated for data reporting in our analysis, we did not pursue this alternative. The reporting requirements are intended to reinforce recommendations included in clinical practice guidelines on the delivery of high quality, effective, and safe patient care. Specifically, nationally-recognized clinical guidelines on office-based opioid treatment with buprenorphine suggest that optimal care include administration of the medication and the use of psychotherapeutic support services. They also recommend that physicians and practices prescribing buprenorphine for the treatment of opioid use disorder in the outpatient setting take steps to reduce the likelihood of buprenorphine diversion. Each of these tenets is reflected in the proposed reporting requirements.
As discussed above, the RFA requires agencies that issue a regulation to analyze options for regulatory relief of small entities if a rule has a significant impact on a substantial number of small entities. The categories of entities affected most by this proposed rule will be offices of practitioners and hospitals. We expect that the vast majority of these entities will be considered small based on the Small Business Administration size standards or non-profit status, and assume here that all affected entities are small. According to SAMHSA data, as of March 2016 there were 32,123 practitioners with a waiver to prescribe buprenorphine for the treatment of opioid use disorder. This group of practitioners is most likely to be impacted by the proposed rule, but we lack information on the total number of associated entities. We acknowledge that some practitioners with a waiver may provide services at multiple entities, many entities may employ multiple practitioners with a waiver, and some entities currently unaffiliated with these practitioners will be impacted by this proposed rule. As a result, we estimate that approximately 32,123 small entities will be affected by this proposed rule.
HHS considers a rule to have a significant economic impact on a substantial number of small entities if at least 5 percent of small entities experience an impact of more than 3 percent of revenue. As discussed above, the proposed rule imposes a small burden on entities. This burden is primarily associated with processing information disseminated by SAMHSA, opting to completing the waiver process to treat additional patients, and submitting information after receiving a waiver to treat 200 patients, which are estimated to take a maximum of 4 hours per practitioner in any given year. This represents less than 1 percent of hours worked for an individual working full-time. Further, this proposed rule does not require practitioners to undertake these burdens, as this rulemaking does not require practitioners to seek a waiver to treat 200 patients. As a result, we anticipate that this proposed rule will not have a significant impact on a substantial number of small entities. We seek comment on the assumptions used in this section, and on the proposed rule's burden on small entities.
If any of the comments fall under any of the following questions, please indicate the question and number with your response.
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a. Relative risk of diversion associated with medications that become covered under 21 U.S.C. 823(g)(2)(C) after the effective date of this proposed rule; and
b. Time required to monitor patient safety, assure medication compliance and effectiveness, and deliver or coordinate behavioral health services. HHS seeks comment on the principles by which the Secretary would determine which new medications would qualify.
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Health professions, Methadone, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HHS proposes to amend 42 CFR part 8 as follows:
21 U.S.C. 823; 42 U.S.C. 257a, 290bb-2a, 290aa(d), 290dd-2, 300x-23, 300x-27(a), 300y-11.
(a) Subparts A through C of this part establish the procedures by which the Secretary of Health and Human Services (the Secretary) will determine whether a practitioner is qualified under section 303(g) of the Controlled Substances Act (CSA) (21 U.S.C. 823(g)) to dispense opioid drugs in the treatment of opioid use disorders. The regulations also establish the Secretary's standards regarding the appropriate quantities of opioid drugs that may be provided for unsupervised use by individuals undergoing such treatment (21 U.S.C. 823(g)(1)). Under these regulations, a practitioner who intends to dispense opioid drugs in the treatment of opioid use disorder must first obtain from the Secretary or, by delegation, from the Administrator, Substance Abuse and Mental Health Services Administration (SAMHSA), a certification that the practitioner is qualified under the Secretary's standards and will comply with such standards. Eligibility for certification will depend upon the practitioner obtaining accreditation from an accreditation body that has been approved by SAMHSA. These regulations establish the procedures whereby an entity can apply to become an approved accreditation body. This part also establishes requirements and general standards for accreditation bodies to ensure that practitioners are consistently evaluated for compliance with the Secretary's standards for treatment of opioid use disorder with an opioid agonist treatment medication.
(b) The regulations in subpart F of this part establish the procedures and requirements that practitioners who are authorized to treat up to 100 patients pursuant to a waiver obtained under section 303(g)(2) of the CSA (21 U.S.C. 823(g)(2)), must satisfy in order to treat up to 200 patients with medications covered under section 303(g)(2)(C) of the CSA.
The revisions and additions read as follows:
(b)
A practitioner is eligible for a patient limit of 200 if:
(a) The practitioner possesses a current waiver to treat up to 100 patients under section 303(g)(2) of the Controlled Substances Act (21 U.S.C. 823(g)(2)) and has maintained the waiver in accordance with applicable statutory requirements without interruption for at least one year since the practitioner's notification of intent (NOI) under section 303(g)(2)(B) to treat up to 100 patients was approved;
(b) The practitioner:
(1) Holds a subspecialty board certification in addiction psychiatry or addiction medicine; or
(2) Provides MAT utilizing covered medications in a qualified practice setting as defined in § 8.615;
(c) The practitioner has not had his or her enrollment and billing privileges in the Medicare program revoked under § 424.535 of this title; and
(d) The practitioner has not been found to have violated the Controlled Substances Act pursuant to 21 U.S.C. 824(a).
A qualified practice setting is a practice setting which:
(a) Provides professional coverage for patient medical emergencies during hours when the practitioner's practice is closed;
(b) Provides access to case-management services for patients including referral and follow-up services for programs that provide, or financially support, the provision of services such as medical, behavioral, social, housing, employment, educational, or other related services;
(c) Uses health information technology (HIT) systems such as electronic health records, if otherwise required to use it in the practice setting. HIT means the electronic systems that healthcare professionals and patients use to store, share, and analyze health information;
(d) Is registered for their State prescription drug monitoring program (PDMP) where operational and in accordance with federal and State law. PDMP means a statewide electronic database that collects designated data on substances dispensed in the State. For practitioners providing care in their capacity as employees or contractors of a Federal government agency, participation in a PDMP is required only when such participation is not restricted based on their state of licensure and is in accordance with Federal statutes and regulations;
(e) Accepts third-party payment for costs in providing health services, including written billing, credit and collection policies and procedures, or Federal health benefits.
In order for a practitioner to receive approval for a patient limit of 200, a practitioner must meet all of the requirements specified in § 8.610 and submit a Request for Patient Limit Increase to SAMHSA that includes all of the following:
(a) Completed Request for Patient Limit Increase form;
(b) Statement certifying that the practitioner:
(1) Will adhere to nationally recognized evidence-based guidelines for the treatment of patients with opioid use disorders;
(2) Will provide patients with necessary behavioral health services as defined in § 8.2 or through an established formal agreement with another entity to provide behavioral health services;
(3) Will provide appropriate releases of information, in accordance with Federal and State laws and regulations, including the Health Information Portability and Accountability Act Privacy Rule and part 2 of this chapter, if applicable, to permit the coordination of care with behavioral health, medical, and other service practitioners;
(4) Will use patient data to inform the improvement of outcomes;
(5) Will adhere to a diversion control plan to manage the covered medications and reduce the possibility of diversion of covered medications from legitimate treatment use;
(6) Has considered how to assure continuous access to care in the event of practitioner incapacity or an emergency situation that would impact a patient's access to care as defined in § 8.2; and
(7) Will notify all patients above the 100 patient level, in the event that the request for the higher patient limit is not renewed or is denied, that the practitioner will no longer be able to provide MAT services using buprenorphine to them and make every effort to transfer patients to other addiction treatment;
(c) Any additional documentation to demonstrate compliance with § 8.610 as requested by SAMHSA.
(a) Not later than 45 days after the date on which SAMHSA receives a practitioner's Request for Patient Limit Increase as described in § 8.620, or renewal Request for Patient Limit Increase as described in § 8.640, SAMHSA shall approve or deny the request.
(1) A practitioner's Request for Patient Limit Increase will be approved if the practitioner satisfies all applicable requirements under §§ 8.610 and 8.620. SAMHSA will thereafter notify the practitioner who requested the patient limit increase, and the Drug Enforcement Administration (DEA), that the practitioner has been approved to treat up to 200 patients using covered medications. A practitioner's approval to treat up to 200 patients under this section will extend for a term not to exceed 3 years.
(2) SAMHSA may deny a practitioner's Request for Patient Limit Increase if SAMHSA determines that:
(i) The Request for Patient Limit Increase is deficient in any respect; or
(ii) The practitioner has knowingly submitted false statements or made misrepresentations of fact in the practitioner's Request for Patient Limit Increase.
(b) If SAMHSA denies a practitioner's Request for Patient Limit Increase (or renewal), SAMHSA shall notify the practitioner of the reasons for the denial.
(c) If SAMHSA denies a practitioner's Request for Patient Limit Increase (or renewal) based solely on deficiencies that can be resolved, and the deficiencies are resolved to the satisfaction of SAMHSA in a manner and time period approved by SAMHSA, the practitioner's Request for Patient Limit Increase will be approved. If the deficiencies have not been resolved to the satisfaction of SAMHSA within the designated time period, the Request for Patient Limit Increase will be denied.
(a) A practitioner whose Request for Patient Limit Increase is approved in accordance with § 8.625 shall maintain all eligibility requirements specified in § 8.610, and all attestations made in accordance with § 8.620(b), during the practitioner's 3-year approval term. Failure to do so may result in SAMHSA withdrawing its approval of a practitioner's Request for Patient Limit Increase.
(b) All practitioners whose Request for Patient Limit Increase has been approved under § 8.625 must provide reports to SAMHSA as specified in § 8.635.
(a) All practitioners whose Request for Patient Limit Increase is approved under § 8.625 must submit reports to SAMHSA, along with documentation and data, as requested by SAMHSA, to demonstrate compliance with § 8.620, applicable eligibility requirements specified in § 8.610, and all attestation requirements in § 8.620(b).
(b) Reporting requirements may include a request for information regarding:
(1) The average monthly caseload of patients receiving buprenorphine-based MAT, per year.
(2) Percentage of active buprenorphine patients (patients in treatment as of reporting date) that received psychosocial or case management services (either by direct provision or by referral) in the past year due to:
(i) Treatment initiation.
(ii) Change in clinical status.
(3) Percentage of patients who had a prescription drug monitoring program query in the past month; and
(4) Number of patients at the end of the reporting year who:
(i) Have completed an appropriate course of treatment with buprenorphine in order for the patient to achieve and sustain recovery.
(ii) Are not being seen by the provider due to referral by the provider to a more or less intensive level of care.
(iii) No longer desire to continue use of buprenorphine.
(iv) Are no longer receiving buprenorphine for reasons other than paragraph (b)(4)(i) through (iii) of this section.
(c) The report must be submitted within twelve months after the date that a practitioner's Request for Patient Limit Increase is approved under § 8.625, and annually thereafter.
(d) SAMHSA may check reports from practitioners prescribing under the higher patient limit against other existing data sources, such as PDMPs. If discrepancies between reported information and other existing data are identified, SAMHSA may require additional documentation from practitioners whose reports are identified as including these discrepancies.
(e) Failure to submit reports under this section, or deficient reports, may be deemed a failure to satisfy the requirements for a patient limit increase, and may result in the withdrawal of SAMHSA's approval of the practitioner's Request for Patient Limit Increase.
(a) Practitioners who intend to continue to treat up to 200 patients beyond their current 3 year approval term must submit a renewal Request for Patient Limit Increase in accordance with the procedures outlined under § 8.620 at least 90 days before the expiration of their approval term.
(b) If SAMHSA does not reach a final decision on a renewal Request for Patient Limit Increase before the expiration of a practitioner's approval term, the practitioner's existing approval term will be deemed extended until SAMHSA reaches a final decision.
Practitioners who are approved to treat up to 200 patients in accordance with § 8.625, but who do not renew their Request for Patient Limit Increase, or whose request is denied, shall notify, under § 8.620(b)(7) in a time period specified by SAMHSA, all patients affected above the 100 patient limit, that the practitioner will no longer be able to provide MAT services using covered medications and make every effort to transfer patients to other addiction treatment.
(a)
(b)
(a) Practitioners with a current waiver to prescribe up to 100 patients and who are not otherwise eligible to treat up to 200 patients under § 8.610 may request a temporary increase to treat up to 200 patients in order to address emergency situations as defined in § 8.2 if the practitioner provides information and documentation that:
(1) Describes the emergency situation in sufficient detail so as to allow a determination to be made regarding whether the situation qualifies as an emergency situation as defined in § 8.2, and that provides a justification for an immediate increase in that practitioner's patient limit;
(2) Identifies a period of time, not longer than 6 months, in which the higher patient limit should apply, and provides a rationale for the period of time requested; and
(3) Describes an explicit and feasible plan to meet the public and individual health needs of the impacted persons once the practitioner's approval to treat up to 200 patients expires.
(b) Prior to taking action on a practitioner's request under this section, SAMHSA shall consult, to the extent practicable, with the appropriate governmental authority in order to determine whether the emergency situation that a practitioner describes justifies an immediate increase in the higher patient limit.
(c) If SAMHSA determines that a practitioner's request under this section should be granted, SAMHSA will notify the practitioner that his or her request has been approved. The period of such approval shall not exceed six months.
(d) If a practitioner wishes to receive an extension of the approval period granted under this section, he or she must submit a request to SAMHSA at least 30 days before the expiration of the six month period, and certify that the emergency situation as defined in § 8.2 necessitating an increased patient limit continues. Prior to taking action on a practitioner's extension request under this section, SAMHSA shall consult, to the extent practicable, with the appropriate governmental authority in order to determine whether the emergency situation that a practitioner describes justifies an extension of an increase in the higher patient limit.
(e) Except as provided in this section and § 8.650, requirements in other sections under subpart F of this part do not apply to practitioners receiving waivers in this section.
Forest Service, USDA.
Notice of meeting.
The Pacific Northwest National Scenic Trail Advisory Council (Council) will meet in Port Townsend, Washington. The Council is authorized under Section 5(d) of the National Trails System Act of 1968 (Act) and operates in compliance with the Federal Advisory Committee Act (FACA). Additional information concerning the Council, including the meeting summary/minutes, can be found by visiting the Council's Web site at:
The meeting will be held on the following dates and times:
• Wednesday, May 4, 2016 from 8:00 a.m. to 5:00 p.m. PDT.
• Thursday, May 5, 2016 from 8:00 a.m. to 5:00 p.m. PDT.
• Friday, May 6, 2016 from 8:00 a.m. to 5:00 p.m. PDT (optional field trip).
All meetings are subject to cancellation. For updated status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Northwest Maritime Center, 431 Water Street, Port Townsend, WA 98368. Written comments may be submitted as described under
Matt McGrath, Pacific Northwest National Scenic Trail Program Manager, by phone at 425-583-9304, or by email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to provide:
1. Review significant resources and current trail uses along the PNNST;
2. Provide recommendations on the Nature and Purposes of the PNNST, including trail uses; and
3. Discuss potential interpretive themes and strategies for youth and community engagement on the PNNST.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing by May 19, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Council may file written statements with the Council's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Matt McGrath, Pacific Northwest National Scenic Trail Program Manager, 2930 Wetmore Avenue, Suite 3A, Everett, Washington 98201, or by email to
Forest Service, USDA.
Notice of meeting.
The Shasta County Resource Advisory Committee (RAC) will meet in Redding, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
The meeting will be held from 9:00 a.m. to 3:00 p.m. on May 3 and 4, 2016.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at USDA Service Center, Shasta-Trinity National Forest Headquarters, 3644 Avtech Parkway, Redding, California.
Written comments may be submitted as described under
Lesley Yen, Designated Federal Officer, by phone at 530-275-1587 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m.,
The purpose of the meeting is to:
1. Review proposals for Secure Rural Schools Title II funding, and
2. Vote on proposals to recommend to the Shasta-Trinity National Forest Supervisor for approval.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by May 2, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Lesley Yen, Designated Federal Officer, 14225 Holiday Road, Redding, California 96003; by email to
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Kansas Advisory Committee (Committee) will hold a meeting on Friday, April 29, 2016, at 12:00 p.m. CDT for the purpose of reviewing and discussing testimony regarding voting rights in the State.
This meeting is available to the public through the following toll-free call-in number: 888-587-0615, conference ID: 4700573. Any interested member of the public may call this number and listen to the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are invited to make statements at the end of the conference call. In addition, members of the public may submit written comments; the comments must be received in the regional office within 30 days after the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Administrative Assistant, Corrine Sanders at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at the following link:
The meeting will be held on Friday, April 29, 2016, at 12:00 p.m. CDT.
Melissa Wojnaroski, DFO, at 312-353-8311 or
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Oklahoma Advisory Committee (Committee) will hold a meeting on Monday, May 02, 2016, from 12:00-1:00 p.m. CDT for the purpose of discussing a draft report regarding the civil rights impact of the “school to prison pipeline” in Oklahoma.
Members of the public may listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-389-5988, conference ID: 4893967. Any interested member of the public may call this number and listen to the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines according to their wireless plan, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also invited to make statements at the end of the conference call. In addition, members of the public may submit written comments; the comments must be
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at:
The meeting will be held on Monday, May 02, 2016, from 12:00-1:00 p.m. CDT.
Melissa Wojnaroski, DFO, at 312-353-8311 or
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On December 1, 2015, the Department of Commerce (the “Department”) published the notice of initiation of the first five-year (“sunset”) review of the antidumping duty order on certain petroleum wax candles (“candles”) from the People's Republic of China (“PRC”) pursuant to section 751(c) of the Tariff Act of 1930, as amended (the “Act”).
Katie Marksberry, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-7906.
As noted above, on December 1, 2015, the Department published the initiation of the fourth sunset review of candles from the PRC.
The products covered by the order are certain scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks. They are sold in the following shapes: Tapers, spirals and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers. The products were originally classifiable under the Tariff Schedules of the United States item 755.25, Candles and Tapers. The products are currently classifiable under the Harmonized Tariff Schedule (“HTS”) item number 3406.00.00. The HTS item number is provided for convenience and customs purposes. The written description remains dispositive.
All issues raised in this sunset review are addressed in the Issues and Decision Memorandum. The issues discussed in the Issues and Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the order were to be revoked. Parties may find a complete discussion of all issues raised in the review and the corresponding recommendations in this public memorandum which is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at
Pursuant to section 752(c) of the Act, the Department determines that revocation of the order would be likely to lead to continuation or recurrence of dumping at weighted-average margins up to 95.86 percent.
This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305.
We are publishing these final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
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 Quintillion Subsea Operations, LLC (Quintillion) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to a subsea cable-laying operation in the state and federal waters of the Bering, Chukchi, and Beaufort seas, Alaska, during the open-water season of 2016. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to Quintillion to incidentally take, by Level B Harassments, marine mammals during the specified activity.
Comments and information must be received no later than April 29, 2016.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. 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
NMFS is also preparing a draft Environmental Assessment (EA) in accordance with the National Environmental Policy Act (NEPA) and will consider comments submitted in response to this notice as part of that process. The draft EA will be posted at the foregoing internet site.
Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the 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.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On October 29, 2015, NMFS received an IHA application and marine mammal mitigation and monitoring plan (4MP) from Quintillion for the taking of marine mammals incidental to conducting subsea cable laying activities in the U.S. Bering, Chukchi, and Beaufort seas. After receiving NMFS comments on the initial application, Quintillion made revisions and updated its IHA application and 4MP on February 3, 2016. NMFS determined that the application and the 4MP were adequate and complete on February 5, 2016.
Quintillion proposes to install a subsea fiber optic network cable along the northern and western coasts of Alaska in the U.S. Bering, Chukchi, and Beaufort seas during the 2016 Arctic open-water season. The proposed activity would occur between June 1 and October 31, 2016. Noise generated from cable vessel's dynamic positioning thruster could impact marine mammals in the vicinity of the activities. Take, by Level B harassments, of individuals of 8 species of marine mammals is proposed to be authorized from the specified activity.
On October 29, 2015, NMFS received an application from Quintillion requesting an authorization for the harassment of small numbers of marine mammals incidental to subsea cable-laying operations in the Bering, Chukchi, and Beaufort seas off Alaska. After addressing comments from NMFS, Quintillion modified its application and submitted revised applications and 4MP on February 3, 2016. Quintillion's proposed activities discussed here are
The proposed subsea cable-laying operation is planned for the 2016 open-water season (June 1 to October 31). All associated activities, including mobilization, pre-lay grapnel run (PLGR), cable-laying, post lay inspection and burial (PLIB), and demobilization of survey and support crews, would occur inclusive of the above seasonal dates. It is expected that the operations may last all season (approximately 150 days).
The planned fiber optic cable-laying project will occur in the offshore waters of the Bering, Chukchi, and Beaufort seas between Nome and Oliktok Point (the latter located 260 km [162 mi] southeast of Barrow). The specific area is provided in Figure 1 of Quintillion's IHA application.
The proposed subsea cable network is shown in Figure 1 of the IHA application. The cable network includes the main trunk line and six branch lines. The main trunk line is 1,317 km (818 mi) in length, and will run from the tail of the Nome branch line to the tail of the Oliktok Point branch line (Table 1). The branch lines range between 27 km (17 mi) and 233 km (145 mi) long. The branch lines connect to the main trunk line at the branching unit (BU), which is a piece of hardware that allows the interconnection of the branch cable from the main trunk line to the shore end facility. The cable is also “repeatered” in that approximately every 60 km (37 mi) a repeater is attached to the cable that amplifies the signal. Collectively, the cable, BUs, and repeaters make up the “submerged plant.” Depending on bottom substrate, water depth, and distance from shore, the cable would either lay on the ocean floor or will be buried using a plough or a remote operating vehicle (ROV) equipped for burial jetting.
The cable-laying operations will be conducted from two ships, the
Support vessels include a tug and barge that will remain in the vicinity of the main lay vessel. During cable laying activities occurring in nearshore waters too shallow of the
The branch line segment between Oliktok Point and BU Oliktok crosses a hard seafloor that poses a more unique challenge to burying the cable in the ice scour zone. For this segment the
Before cable is laid, a pre-lay grapnel run (PLGR) will be carried out along the proposed cable route where burial is required. The objective of the PLGR operation is the identification and clearance of any seabed debris, for example wires, hawsers, wrecks, or fishing gear, which may have been deposited along the route. Any debris recovered during these operations would be discharged ashore on completion of the operations and disposed of in accordance with local regulations. If any debris cannot be recovered, then a local reroute would be planned to avoid the debris. The PLGR operation would be to industry standards employing towed grapnels; the type of grapnel being determined by the nature of the seabed. The PLGR operation would be conducted by a local tug boat ahead of the cable-laying.
The objective of the surface laying operation is to install the cable as close as possible to the planned route with the correct amount of cable slack to enable the cable to conform to the contours of the seabed without loops or suspensions. A slack plan would be developed that uses direct bathymetric data and a catenary modeling system to control the ship and the cable pay out speeds to ensure the cable is accurately placed in its planned physical position.
Where the BAS has determined that cable burial is possible, the cable would be buried using various methods. In water depths greater than about 12 m (about 40 ft), the cable would be buried using an SMD Heavy Duty HD3 Plough. The plough has a submerged weight of 25 tonnes (27.6 tons). The plough is pulled by the tow wire and the cable fed through a cable depressor that pushes it into the trench. Burial depth is controlled by adjusting the front skids. The normal tow speed is approximately 600 m/hr (approximately 0.37 mph).
In water depths less than 12 m (40 ft), burial would be by jet burial using a towed sled, tracked ROV, or by diver jet burial, subject to seabed conditions in the area. The ROV would be used in areas accessible to the main lay vessel. The planned ROV, the ROVJET 400 series, is 5.8 m (19.0 ft) long and 3.4 m (11.2 ft) wide and weighs 9.1 tonnes (10 tons) in air, and has both a main and forward jet tool cable of trenching to 2 m (6.6 ft) depth.
Nearer to shore, where seasonal ice scouring occurs, the cable with be floated on the surface and then pulled through an existing horizontal directional drilling (HDD) bore pipe to the beach man hole (BMH) where it would be anchor-clamped and spliced to the terrestrial cable. The floated cable portion is then lowered to the seabed by divers and buried (using a post-lay burial method as described above) from the HDD Bore pipe seaward.
While it is expected that the cable trench would fill back in by natural current processes, it is important to ensure that cable splices and BUs are
The Bering, Chukchi, and Beaufort seas support a diverse assemblage of marine mammals. Table 2 lists the 12 marine mammal species under NMFS jurisdiction with confirmed or possible occurrence in the proposed project area.
Among these species, bowhead, humpback, and fin whales, and ringed and bearded are listed as endangered or threatened species under the Endangered Species Act (ESA). In addition, walrus and the polar bear could also occur in the Bering, Chukchi, and Beaufort seas; however, these species are managed by the U.S. Fish and Wildlife Service (USFWS) and are not considered in this Notice of Proposed IHA.
Of all these species, bowhead and beluga whales and ringed, bearded, and spotted seals are the species most frequently sighted in the proposed activity area. The proposed action area in the Bering, Chukchi, and Beaufort seas also includes areas that have been identified as important for bowhead whale reproduction during summer and fall and for beluga whale feeding and reproduction in summer.
Most bowheads fall migrate through the Alaskan Beaufort in water depths between 15 and 200 m (50 and 656 ft) deep (Miller et al. 2002), with annual variability depending on ice conditions. Hauser et al. (2008) conducted surveys for bowhead whales near the Colville River Delta (near Oliktok Point) during August and September 2008, and found most bowheads between 25 and 30 km (15.5 and 18.6 mi) north of the barrier islands (Jones Islands), with the nearest in 18 m (60 ft) of water about 25 km (16 mi) north of the Colville River Delta. No bowheads were observed inside the 18-m (60-ft) isobath. Most of the cable-lay activity planned for the Beaufort Sea will occur in water deeper than 15 m (50 ft) where migrating bowhead whales could most likely be encountered.
Three stocks of beluga whale inhabit the waters where cable-lay is planned to occur: Beaufort Sea, Eastern Chukchi Sea, and Eastern Bering Sea (O'Corry-Crowe et al. 1997). All three stocks winter in the open leads and polynyas of the Bering Sea (Hazard 1988). In spring, the Beaufort Sea stock migrates through coastal leads more than 2,000 km (1,200 mi) to their summering grounds in the Mackenzie River delta where they molt, feed, and calve in the warmer estuarine waters (Braham et al. 1977). In late summer, these belugas move into offshore northern waters to feed (Davis and Evans 1982, Harwood et al. 1996, Richard et al. 2001). In the fall, they begin their migration back to their wintering grounds generally following an offshore route as they pass through the western Beaufort Sea (Richard et al. 2001).
The Beaufort Sea stock beluga whales take a more coastal route during their fall migration, but compared to the vanguard of population and the survey
The Eastern Chukchi Sea beluga whale stock summers in Kotzebue Sound and Kasegaluk Lagoon where they breed and molt, and then in late summer and fall they also move in the Beaufort Sea (Suydam et al. 2005). Suydam et al. (2005) satellite-tagged 23 beluga whales in Kasegaluk Lagoon and found nearly all the whales move into the deeper waters of the Beaufort Sea post-tagging. However, virtually none of the whales were found in continental shelf waters (<200 m deep) of the Beaufort Sea, and all were in waters at least 65 km (40 mi) north of the northern Alaska coastline. The most recent stock estimate is 3,710 animals (Allen and Angliss 2015). The planned cable-lay activity is most likely to encounter this stock whale laying the Kotzebue and Wainwright branch lines, but the routes do avoid the Kasegaluk Lagoon breeding and molting area.
There is little information on movements of the East Bering stock of beluga whales, although two whales were satellite tagged in 2012 near Nome wintered in Bristol Bay (Allen and Angliss 2015). These whales might be encountered while laying the Nome branch line.
In addition, a few gray whales are expected to be encountered along the main trunk line route through the north Bering and Chukchi seas. However, they are expected to be commonly observed along the nearshore segments of the branch lines, especially the Wainwright branch where they are commonly found in large feeding groups.
Three of the ice seal species—ringed, bearded, and spotted seals—are fairly common in the proposed subsea cable laying areas. However, there are no pinnipeds haulouts in the vicinity of the action area.
Further information on the biology and local distribution of these species can be found in Quintillion's application (see
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data. Southall
• Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 25 kHz;
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins,
• Phocid pinnipeds (true seals): Functional hearing is estimated between 75 Hz to 100 kHz; and
• Otariid pinnipeds (sea lions and fur seals): Functional hearing is estimated between 100 Hz to 48 kHz.
Species found in the vicinity of Quintillion subsea cable-laying operation area include four low-frequency cetacean species (Bowhead whale, gray whale, humpback whale, and fin whale), two mid-frequency cetacean species (beluga whale and killer whale), one high-frequency cetacean species (harbor porpoise), and four pinniped species (ringed seal, spotted seal, bearded seal, and ribbon seal).
The proposed Quintillion subsea cable-laying operation could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran
The following physiological mechanisms are thought to play a role in inducing auditory TS: Effects to sensory hair cells in the inner ear that reduce their sensitivity, modification of the chemical environment within the sensory cells, residual muscular activity in the middle ear, displacement of certain inner ear membranes, increased blood flow, and post-stimulatory reduction in both efferent and sensory neural output (Southall
For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran
Lucke
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark
Masking occurs at the frequency band which the animals utilize. Therefore, since noise generated from vessels dynamic positioning activity is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (
Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than 3 times in terms of sound pressure level) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessel traffic and cable-laying while operating
Finally, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardson
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.
Project activities that could potentially impact marine mammal habitats include acoustical impacts to prey resources associated with laying cable on sea bottom. Regarding the former, however, acoustical injury from thruster noise is unlikely. Previous noise studies (
Nedwell et al. (2003) measured noise associated with cable trenching operations offshore of Wales, and found that levels (178 dB at source) did not exceed those where significant avoidance reactions of fish would occur. Cable burial operations involve the use of ploughs or jets to cut trenches in the sea floor sediment. Cable ploughs are generally used where the substrate is cohesive enough to be “cut” and laid alongside the trench long enough for the cable to be laid at depth. In less cohesive substrates, where the sediment would immediately settle back into the trench before the cable could be laid, jetting is used to scour a more lasting furrow. The objective of both is to excavate a temporary trench of sufficient depth to fully bury the cable. The plough blade is 0.2 m (0.7 ft) wide producing a trench of approximately the same width. Jetted trenches are somewhat wider depending on the sediment type. Potential impacts to marine mammal habitat and prey include (1) crushing of benthic and epibenthic invertebrates with the plough blade, plough skid, or ROV track, (2) dislodgement of benthic invertebrates onto the surface where they may die, and (3) and the settlement of suspended sediments away from the trench where they may clog gills or feeding structures of sessile invertebrates or smother sensitive species (BERR 2008). However, the footprint of cable trenching is generally restricted to 2 to 3 m (7-10 ft) width (BERR 2008), and the displaced wedge or berm is expected to naturally backfill into the trench. Jetting results in more suspension of sediments, which may take days to settle during which currents may transport it well away (up to several kilometers) from its source. Suspended sand particles generally settle within about 20 m (66 ft). BERR (2008) reviewed the effect of offshore wind farm construction, including laying of power and communication cables, on the environment. Based on a rating of 1 to 10, they concluded that sediment disturbance from plough operations rated the lowest at 1, with jetting rating from 2 to 4, depending on substrate. Dredging rated the highest (6) relative sediment disturbance.
The maximum amount of trenching possible is about 1,900 km (1,180 mi), but the width of primary effect is only about 3 m (10 ft). Thus, the maximum impact footprint is less than 6 km
In order to issue an incidental take authorization (ITA) 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 (where relevant).
For the proposed Quintillion open-water subsea cable-laying operations in the Bering, Chukchi, and Beaufort seas, NMFS worked with Quintillion and its contractor to propose the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity as a result of the activities. The primary purpose of these mitigation measures is to detect marine mammals and avoid vessel interactions during the pre- and post-cable-laying activities. Due to the nature of the activities, the vessel will not be able to engage direction alternation during cable-laying operations. However, since the cable-laying vessel will be moving at a slow speed of 600 meter/hour (0.37 mile per hour or 0.32 knot) during cable-laying operation, it is highly unlikely that the cable vessel would have physical interaction with marine mammals. The following are mitigation measures proposed to be included in the IHA (if issued).
Protected species observers (PSOs) would establish a ZOI where the received level is 120 dB during Qunitillion's subsea cable-laying operation and conduct marine mammal monitoring during the operation.
When the cable-lay fleet is traveling in Alaskan waters to and from the project area (before and after completion of cable-laying), the fleet vessels would:
• Not approach concentrations or groups of whales (an aggregation of 6 or more whales) within 1.6 km (1 mi) by all vessels under the direction of Quintillion.
• Take reasonable precautions to avoid potential interaction with the bowhead whales observed within 1.6 km (1 mi) of a vessel.
• Reduce speed to less than 5 knots when visibility drops to avoid the likelihood of collision with whales. The
NMFS has carefully evaluated Quintillion's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measures are expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of activities expected to result in the take of marine mammals (this goal may contribute to 1, 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 our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed measures to ensure availability of such species or stock for taking for certain subsistence uses are discussed later in this document (see “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Quintillion submitted a marine mammal monitoring plan as part of the IHA application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period or from the peer review panel (see the “
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.
Monitoring will provide information on the numbers of marine mammals potentially affected by the subsea cable-laying operation and facilitate real-time mitigation to prevent injury of marine mammals by vessel traffic. These goals will be accomplished in the Bering, Chukchi, and Beaufort seas during 2016 by conducting vessel-based monitoring and passive acoustic monitoring to document marine mammal presence and distribution in the vicinity of the operation area.
Visual monitoring by Protected Species Observers (PSOs) during subsea cable-laying operation, and periods
Vessel-based monitoring for marine mammals would be done by trained protected species observers (PSOs) throughout the period of subsea cable-laying operation. The observers would monitor the occurrence of marine mammals near the cable-laying vessel during all daylight periods during operation. PSO duties would include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the survey operations; and documenting “take by harassment.”
A sufficient number of PSOs would be required onboard each survey vessel to meet the following criteria:
• 100% monitoring coverage during all periods of cable-laying operations in daylight;
• Maximum of 4 consecutive hours on watch per PSO; and
• Maximum of 12 hours of watch time per day per PSO.
PSO teams will consist of Inupiat observers and experienced field biologists. Each vessel will have an experienced field crew leader to supervise the PSO team. The total number of PSOs may decrease later in the season as the duration of daylight decreases.
Lead PSOs and most PSOs would be individuals with experience as observers during marine mammal monitoring projects in Alaska or other offshore areas in recent years. New or inexperienced PSOs would be paired with an experienced PSO or experienced field biologist so that the quality of marine mammal observations and data recording is kept consistent.
Resumes for candidate PSOs would be provided to NMFS for review and acceptance of their qualifications. Inupiat observers would be experienced in the region and familiar with the marine mammals of the area. All observers would complete a NMFS-approved observer training course designed to familiarize individuals with monitoring and data collection procedures.
The PSOs shall be provided with Fujinon 7 × 50 or equivalent binoculars for visual based monitoring onboard all vessels.
Laser range finders (Leica LRF 1200 laser rangefinder or equivalent) would be available to assist with distance estimation.
Quintillion plans to conduct a sound source verification (SSV) on one of the cable-lay ships and the anchor-handling tugs when both are operating near Nome (early in the season).
After consulting with NMFS Office of Protected Resources, the National Marine Mammal Laboratory (NMML), and the North Slope Borough Department of Wildlife, Quintillion proposes to contribute to the 2016 joint Arctic Whale Ecology Study (ARCWEST)/Chukchi Acoustics, Oceanography, and Zooplankton Study-extension (CHAOZ-X).
The summer minimum extent of sea ice in the northern Bering Sea, Chukchi Sea, and western Beaufort Sea has diminished by more than 50% over the past two decades. This loss of ice has sparked concerns for long-term survival of ice-dependent species like polar bears, Pacific walrus, bearded seals, and ringed seals. In contrast, populations of some Arctic species such has bowhead and gray whales have increased in abundance, while subarctic species such as humpback, fin, and minke whales have expanded their ranges into the Arctic in response to warmer water and increased zooplankton production. The joint ARCWEST/CHAOZ-X program has been monitoring climate change and anthropogenic activity in the Arctic waters of Alaska since 2010 by tracking satellite tagged animals, sampling lower trophic levels and physical oceanography, and passively acoustically monitoring marine mammal and vessel activity. The current mooring locations for the passive acoustical monitoring (PAM) portion of the joint program align closely with the proposed Quintillion cable-lay route. Operating passive acoustic recorders at these locations in 2016 would provide information not only on the distribution and composition of the marine mammal community along the proposed cable-lay route at the time cable-lay activities would be occurring, but they could also record the contribution of the cable-lay activity on local acoustical environment where the route passes close to these stations.
The MMPA requires that monitoring plans be independently peer reviewed “where the proposed activity may affect the availability of a species or stock for taking for subsistence uses” (16 U.S.C. 1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing regulations state, “Upon receipt of a complete monitoring plan, and at its discretion, [NMFS] will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan” (50 CFR 216.108(d)).
NMFS has established an independent peer review panel to review Quintillion's 4MP for the proposed subsea cable-laying operation in the Bering, Chukchi, and Beaufort seas. The panel is scheduled to meet via web conference in early March 2016, and will provide comments to NMFS in April 2016. After completion of the peer review, NMFS will consider all recommendations made by the panel, incorporate appropriate changes into the monitoring requirements of the IHA (if issued), and publish the panel's findings and recommendations in the final IHA notice of issuance or denial document.
The results of Quintillion's subsea cable laying activities monitoring reports would be presented in the “90-day” final reports, as required by NMFS under the proposed IHA. The initial final reports are due to NMFS within 90 days after the expiration of the IHA (if issued). The reports will include:
• Summaries of monitoring effort (
• Summaries of initial analyses of the datasets that interpret the efficacy, measurements, and observations, rather than raw data, fully processed analyses, or a summary of operations and important observations;
• Analyses of the effects of various factors influencing detectability of marine mammals (
• Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;
• Estimates of uncertainty in all take estimates, with uncertainty expressed by the presentation of confidence limits, a minimum-maximum, posterior probability distribution, or another applicable method, with the exact approach to be selected based on the sampling method and data available;
• A clear comparison of authorized takes and the level of actual estimated takes; and
• A complete characterization of the acoustic footprint resulting from various activity states.
The “90-day” reports will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as a serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Quintillion to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Quintillion would not be able to resume its activities until notified by NMFS via letter, email, or telephone.
In the event that Quintillion discovers a dead marine mammal, and the lead PSO determines that the cause of the death is unknown and the death is relatively recent (
In the event that Quintillion discovers a dead marine mammal, and the lead PSO determines that the death is not associated with or related to the activities authorized in the IHA (
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].
Takes by Level B harassments of some species are anticipated as a result of Quintillion's proposed subsea cable-laying operation. NMFS expects marine mammal takes could result from noise propagation from dynamic position thrusters during cable-laying operation. NMFS does not expect marine mammals would be taken by collision with cable and support vessels, because the vessels will be moving at low speeds, and PSOs on the vessels will be monitoring for marine mammals and will be able to alert the vessels to avoid any marine mammals in the area.
For non-impulse sounds, such as those produced by the dynamic positioning thrusters during Quintillion's subsea cable-laying operation, NMFS uses the 180 and 190 dB (rms) re 1 μPa isopleth to indicate the onset of Level A harassment for cetaceans and pinnipeds, respectively; and the 120 dB (rms) re 1 μPa isopleth for Level B harassment of all marine mammals. Quintillion provided calculations of the 120-dB isopleths expected to be produced by the dynamic positioning thrusters during the proposed cable-laying operation to estimate takes by harassment. NMFS used those calculations to make the necessary MMPA findings. Quintillion provided a full description of the methodology used to estimate takes by harassment in its IHA application, which is also provided in the following sections. There is no 180 or 190-dB zone from the proposed activities.
The proposed cable-laying activity is expected to generate underwater noises from several sources, including thrusters, plows, jets, ROVs, echo sounders, and positioning beacons. The predominant noise source and the only underwater noise that is likely to result in take of marine mammals during cable laying operations is the cavitating noise produced by the thrusters during dynamic positioning of the vessel (Tetra Tech 2014). Cavitation is random collapsing of bubbles produced by the blades. The
Various acoustical investigations in the Atlantic Ocean have modeled distances to the 120 dB isopleth with results ranging between 1.4 and 3.575 km (Samsung 2009, Deepwater Wind 2013, Tetra Tech 2014) for water depths similar to where Quintillion would be operating in the Arctic Ocean. However, all these ranges were based on conservative modeling that included
Hartin et al. (2011) physically measured dynamic positioning noise from the 104-m (341-ft)
The acoustical footprint (total ensonified area) was determined by assuming that dynamic position would occur along all trunk and branch lines within the proposed fiber optics cable network, regardless of the cable-lay vessel used. The sum total of submerged cable length is 1,902.7 km (1,182.3 mi). Assuming that the radius to the 120 dB isopleth is 2.3 km (1.4 mi) (Hartin et al. 2011), then the total ensonified area represents a swath that is 1,902.7 km (1,182.3 mi) in length and 4.6 km (2.8 mi) in width (2 x 2.3 km) or 8,752.4 km
Density estimates for bowhead, gray, and beluga whales were derived from aerial survey data collected in the Chukchi and Beaufort seas during the 2011 to 2013 Aerial Surveys of Arctic Marine Mammals (ASAMM) program (Clarke et al. 2012, 2013, 2014, 2015). The proposed cable routes cross ASAMM survey blocks 2, 11, and 12 in the Beaufort Sea, and blocks 13, 14, 18, 21, and 22 in the Chukchi Sea. Only data collected in these blocks were used to estimate densities for bowhead and gray whales. Beluga densities were derived from ASAMM data collected depth zones between 36 and 50 m (118 and 164 ft) within the Chukchi Sea between longitudes 157° and 169° W., and the depth zones between 21 and 200 m (68.9 and 656.2 ft) in the Beaufort Sea between longitudes 154° and 157° W. These depth zones reflect the depths where most of the cable-lay will occur. Harbor porpoise densities (Chukchi Sea only) are from Hartin et al. (2013), and ringed seal densities from Aerts et al. (2014; Chukchi Sea) and Moulton and Lawson (2002; Beaufort Sea). Spotted and bearded seal densities in the Chukchi Sea are also from Aerts et al. (2014), while spotted and bearded seal densities in the Beaufort Sea were developed by assuming both represented 5% of ringed seal densities. Too few sightings have been made in the Chukchi and Beaufort seas for all other marine mammal species to develop credible density estimates.
The density estimates for the seven species are presented in Table 3 (Chukchi/Bering) and Table 4 (Beaufort) below. The specific parameters used in deriving these estimates are provided in the discussions that follow.
During the summer aerial surveys (June-August) there were 30 beluga whale observed along 20,240 km (12,577 mi) of transect in waters less than 36 to 50 m (22-31 ft) deep and between longitudes 157° W. and 169° W. This equates to 0.0015 whales/km of trackline and a corrected density of 0.0021 whales per km
Moulton and Lawson (2002) conducted summer shipboard-based surveys for pinnipeds along the nearshore Alaskan Beaufort Sea coast, while the Kingsley (1986) conducted surveys here along the ice margin representing fall conditions. The ringed seal results from these surveys were used in the exposure estimates (Table 3). Neither survey provided a good estimate of spotted seal densities. Green and Negri (2005) and Green et al. (2006, 2007) recorded pinnipeds during barging activity between West Dock and Cape Simpson, and found high numbers of ringed seal in Harrison Bay, and peaks in spotted seal numbers off the Colville River Delta where a haulout site is located. Approximately 5% of all phocid sightings recorded by Green and Negri (2005) and Green et al. (2006, 2007) were spotted seals, which provide a suitable estimate of the proportion of ringed seals versus spotted seals in the Colville River Delta and Harrison Bay, both areas close to the proposed Oliktok branch line. Thus, the estimated densities of spotted seals in the cable-lay survey area were derived by multiplying the ringed seal densities from Moulton and Lawson (2002) and Kingsley (1986) by 5%.
Spotted seals are a summer resident in the Beaufort Sea and are generally found in nearshore waters, especially in association with haulout sites at or near river mouths. Their summer density in the Beaufort Sea is a function of distance from these haul out sites. Near Oliktok Point (Hauser et al. 2008, Lomac-McNair et al. 2014) where the Oliktok cable branch will reach shore, they are more common than ringed seals, but they are very uncommon farther offshore where most of the Beaufort Sea cable-lay activity will occur. This distribution of density is taken into account in the take authorization request.
There are no accurate density estimates for bearded seals in the Beaufort Sea based on survey data. However, Stirling et al. (1982) noted that the proportion of eastern Beaufort Sea bearded seals is 5% that of ringed seals. Further, Clarke et al. (2013, 2014) recorded 82 bearded seals in both the Chukchi and Beaufort seas during the 2012 and 2013 ASAMM surveys, which represented 5.1% of all their ringed seal and small unidentified pinniped sightings (1,586). Bengtson et al. (2005) noted a similar ratio (6%) during spring surveys of ice seals in the Chukchi Sea. Therefore, the density values in Table 3 (/km
The estimated potential harassment take of local marine mammals by QSO's fiber optics cable-lay project was
Because the cable laying plan is to begin in the south as soon as ice conditions allow and work northward, the intention is to complete the Bering and Chukchi seas portion of the network (1,575 km, [979 mi]) during the summer (June to August), and Beaufort Sea portion (328 km [204 mi]) during the fall (September and October). Thus, summer exposure estimates apply for the Bering and Chukchi areas and the fall exposure estimates for the Beaufort (Table 5).
The estimated takes of marine mammals are based on the estimated exposures for marine mammals with known density information. For marine mammals whose estimated number of exposures were not calculated due to a lack of reasonably accurate density estimates, but for which occurrence records within the project area exist (
The estimated Level B takes as a percentage of the marine mammal stock are less than 1.72% in all cases (Table 6). The highest percent of population estimated to be taken is 18% for Level B harassments of the East Chukchi Sea stock of beluga whale. However, that percentage assumes that all beluga whales taken are from that population. Most likely, some beluga whales would be taken from each of the three stocks, meaning fewer than 669 beluga whales would be taken from either individual stock. The Level B takes of beluga whales as a percentage of populations would likely be below 1.7, 18, and 3.5% for the Beaufort Sea, East Chukchi Sea, and East Bering Sea stocks, respectively.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 6, given that the anticipated effects of Quintillion's subsea cable-laying operation on marine mammals (taking into account the proposed mitigation) are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described separately in the analysis below.
No injuries or mortalities are anticipated to occur as a result of Quintillion's subsea cable-laying operation, and none are authorized. Additionally, animals in the area are not expected to incur hearing impairment (
Any effects on marine mammals are generally expected to be restricted to avoidance of a limited area around Quintillion's proposed activities and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” Mitigation measures, such as controlled vessel speed and dedicated marine mammal observers, will ensure that takes are within the level being analyzed. In all cases, the effects are expected to be short-term, with no lasting biological consequence.
Of the 11 marine mammal species likely to occur in the proposed cable-laying area, bowhead, humpback, and fin whales, and ringed and bearded seals are listed as endangered or threatened under the ESA. These species are also designated as “depleted” under the MMPA. None of the other species that may occur in the project area are listed as threatened or endangered under the ESA or designated as depleted under the MMPA.
The project area of the Quintillion's proposed activities is within areas that have been identified as biologically important areas (BIAs) for feeding for the gray and bowhead whales and for reproduction for gray whale during the summer and fall months (Clarke et al. 2015). In addition, the coastal Beaufort Sea also serves as a migratory corridor during bowhead whale spring migration, as well as for their feeding and breeding activities. Additionally, the coastal area of Chukchi and Beaufort seas also serve as BIAs for beluga whales for their feeding and migration. However, the Quintillion's proposed cable laying operation would briefly transit through the area in a slow speed (600 meters per hour). As discussed earlier, the Level B behavioral harassment on marine mammals from the proposed activity is expected to be brief startling reaction and temporary vacating of the area. There is no long-term biologically significant impact to marine mammals expected from the proposed subsea cable-laying activity.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from Quintillion's proposed subsea cable-laying operation in the Bering, Chukchi, and Beaufort seas is not expected to adversely affect the affected species or stocks through impacts on annual rates of recruitment or survival, and therefore will have a negligible impact on the affected marine mammal species or stocks.
The requested takes represent less than 18% of all populations or stocks potentially impacted (see Table 6 in this document). These take estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment. The numbers of marine mammals estimated to be taken are small proportions of the total populations of the affected species or stocks.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
The proposed cable-lay activities will occur within the marine subsistence areas used by the villages of Nome, Wales, Kotzebue, Little Diomede, Kivalina, Point Hope, Wainwright, Barrow, and Nuiqsut. Subsistence use various considerably by season and location. Seven of the villages hunt bowhead whales (Suydam and George 2004). The small villages of Wales, Little Diomedes, and Kivalina take a bowhead whale about once every five years. Point Hope and Nuiqsut each harvest three to four whales annually, and Wainwright five to six. Harvest from Barrow is by far the highest with about 25 whales taken each year generally split between spring and fall hunts. Point Hope and Wainwright harvest occurs largely during the spring hunt, and Nuiqsut's during the fall. Nuiqsut whalers base from Cross Island, located 70 km (44 mi) east of Oliktok.
Beluga are also annually harvested by the above villages. Beluga harvest is most important to Point Hope. For example, the village harvested 84 beluga whales during the spring of 2012, and averaged 31 whales a year from 1987 to 2006 (Frost and Suydam 2010). Beluga are also important to Wainwright villages. They harvested 34 beluga whales in 2012, and averaged 11 annually from 1987 to 2006 (Frost and Suydam 2010). All the other villages—Nome, Kotzebue, Wales, Kivalina, Little Diomede, and Barrow—averaged less than 10 whales a year (Frost and Suydam 2010).
All villages utilize seals to one degree or another as well. Ringed seal harvest mostly occurs in the winter and spring when they are hauled out on ice near leads or at breathing holes. Bearded seals are taken from boats during the early summer as they migrate northward in the Chukchi Sea and eastward in the Beaufort Sea. Bearded seals are a staple for villages like Kotzebue and Kivalina that have limited access to bowhead and beluga whales (Georgette and Loon 1993). Thetis Island, located just off the Colville River Delta, is an important base from which villagers from Nuiqsut hunt bearded seals each summer after ice breakup. Spotted seals are an important summer resource for Wainwright and Nuiqsut, but other villages will avoid them because the meat is less appealing than other available marine mammals.
The proposed cable-lay activity will occur in the summer after the spring bowhead and beluga whale hunts have ended, and will avoid the ice period when ringed seals are harvested. The Oliktok branch will pass within 4 km (2 mi) of Thetis Island, but the laying of cable along that branch would occur in late summer or early fall, long after the bearded seal hunt is over. Based on the proposed cable-lay time table relative to the seasonal timing of the various subsistence harvests, cable-lay activities into Kotzebue (bearded seal), Wainwright (beluga whale), and around Point Barrow (bowhead whale) could overlap with important harvest periods. Quintillion will work closely with the AEWC, the Alaska Beluga Whale Committee, the Ice Seal Committee, and
Regulations at 50 CFR 216.104(a)(12) require IHA applicants for activities that take place in Arctic waters to provide a Plan of Cooperation (POC) or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes.
Quintillion has prepared a draft POC, which was developed by identifying and evaluating any potential effects the proposed cable-laying operation might have on seasonal abundance that is relied upon for subsistence use.
Specifically, Quintillion has contracted with Alcatel-Lucent Submarine Networks to furnish and install the cable system. Alcatel-Lucent's vessel, Ile de Brehat, participates in the Automatic Identification System (AIS) vessel tracking system allowing the vessel to be tracked and located in real time. The accuracy and real time availability of AIS information via the web for the Bering, Chukchi, and Beaufort Seas will not be fully known until the vessels are in the project area. If access to the information is limited, Quintillion will provide alternate vessel information to the public on a regular basis. Quintillion can aid and support the AIS data with additional information provided to the local search and rescue, or other source nominated during the community outreach program.
In addition, Quintillion will communicate closely with the communities of Pt. Hope, Pt. Lay, and Wainwright should activities progress far enough north in late June to mid-July when the villages are still engaged with their annual beluga whale hunt. Quintillion will also communicate closely with the communities of Wainwright, Barrow, and Nuiqsut to minimize impacts on the communities' fall bowhead whale subsistence hunts, which typically occur during late September and into October.
Prior to starting offshore activities, Quintillion will consult with Kotzebue, Point Hope, Wainwright, Barrow, and Nuiqsut as well as the North Slope Borough, the Northwest Arctic Borough, and other stakeholders such as the EWC, the Alaska Eskimo Whaling Commission (AEWC), the Alaska Beluga Whale Committee (ABWC), and the Alaska Nanuuq Commission (ANC). Quintillion will also engage in consultations with additional groups on request.
The draft POC is attached to Quintillion's IHA application.
Within the project area, the bowhead, humpback, and fin whales are listed as endangered and the ringed and bearded seals are listed as threatened under the ESA. NMFS' Permits and Conservation Division has initiated consultation with staff in NMFS' Alaska Region Protected Resources Division under section 7 of the ESA on the issuance of an IHA to Quintillion under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA.
NMFS is preparing an Environmental Assessment (EA), pursuant to NEPA, to determine whether the issuance of an IHA to Quintillion for its subsea cable-laying operation in the Bering, Chukchi, and Beaufort seas during the 2016 Arctic open-water season may have a significant impact on the human environment. NMFS has released a draft of the EA for public comment along with this proposed IHA.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to Quintillion for subsea cable-laying operation in the Bering, Chukchi, and Beaufort Sea during the 2016 Arctic open-water season, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.
This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
(1) This Authorization is valid from June 1, 2016, through October 31, 2016.
(2) This Authorization is valid only for activities associated with subsea cable-laying related activities in the Bering, Chukchi, and Beaufort seas. The specific areas where Quintillion's operations will be conducted are within the Bering, Chukchi, and Beaufort seas, Alaska, as shown in Figure 1 of Quintillion's IHA application.
(3)(a) The species authorized for incidental harassment takings by Level B harassment are: Beluga whales (
(3)(b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:
(i) Operating dynamic positioning thrusters during subsea cable-laying activities; and
(ii) Vessel activities related to subsea cable-laying activities.
(3)(c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the Alaska Regional Administrator (907-586-7221) or his designee in Anchorage (907-271-3023), National Marine Fisheries Service (NMFS) and the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, or her designee (301-427-8418).
(4) The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, at least 48 hours prior to the start of subsea cable-laying activities (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible).
(5) Prohibitions
(a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 6. The taking by serious injury or death of these species 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 Authorization.
(b) The taking of any marine mammal is prohibited whenever the required source vessel protected species observers (PSOs), required by condition 7(a)(i), are not onboard in conformance with condition 7(a)(i) of this Authorization.
(6) Mitigation
(a) Establishing Disturbance Zones:
(i) Establish zones of influence (ZOIs) surrounding the cable-laying vessel where the received level would be 120 dB (rms) re 1 µPa. The size of the modeled distance to the 120 dB (rms) re 1 µPa is 2.3 km.
(ii) Immediately upon completion of data analysis of the field verification measurements required under condition 7(e)(i) below, the new 120 dB (rms) re 1 µPa ZOI shall be established based on the sound source verification.
(b) Vessel Movement Mitigation:
(i) When the cable-lay fleet is traveling in Alaskan waters to and from
(A) Not approach within 1.6 km (1 m) distance from concentrations or groups of whales (aggregation of six or more whales) by all vessels under the direction of Quintillion.
(B) Take reasonable precautions to avoid potential interaction with the bowhead whales observed within 1.6 km (1 mi) of a vessel.
(C) Reduce speed to less than 5 knots when weather conditions require, such as when visibility drops, to avoid the likelihood of collision with whales. The normal vessel travel speeds when laying cable is well less than 5 knots; however vessels laying cable cannot change course and cable-laying operations will not cease until the end of cable is reached.
(c) Mitigation Measures for Subsistence Activities:
(i) For the purposes of reducing or eliminating conflicts between subsistence whaling activities and Quintillion's subsea cable-laying program, Quintillion will provide a daily report of all Quintillion activities and locations to the subsistence communities (see reporting below).
(ii) Quintillion will provide the Alaska Eskimo Whaling Association (Barrow), Kawerak, Inc, (Nome), and Maniilaq Association (Kotzebue) memberships with the Marine Exchange of Alaska so that subsistence communities can track all vessel operations via the vessels' autonomous information system.
(iii) Quintillion will prepare a daily report of project activities, sea conditions, and subsistence interactions, and send to all interested community leaders.
(iv) The daily reports will include a contact address and phone number where interested community leaders can convey any subsistence concerns.
(v) Quintillion shall monitor the positions of all of its vessels and will schedule timing and location of cable-laying segments to avoid any areas where subsistence activity is normally planned.
(vi) Barge and ship transiting to and from the project area:
(A) Vessels transiting in the Beaufort Sea east of Bullen Point to the Canadian border shall remain at least 5 miles offshore during transit along the coast, provided ice and sea conditions allow. During transit in the Chukchi Sea, vessels shall remain as far offshore as weather and ice conditions allow, and at all times at least 5 miles offshore.
(B) From August 31 to October 31, transiting vessels in the Chukchi Sea or Beaufort Sea shall remain at least 20 miles offshore of the coast of Alaska from Icy Cape in the Chukchi Sea to Pitt Point on the east side of Smith Bay in the Beaufort Sea, unless ice conditions or an emergency that threatens the safety of the vessel or crew prevents compliance with this requirement. This condition shall not apply to vessels actively engaged in transit to or from a coastal community to conduct crew changes or logistical support operations.
(C) Vessels shall be operated at speeds necessary to ensure no physical contact with whales occurs, and to make any other potential conflicts with bowheads or whalers unlikely. Vessel speeds shall be less than 10 knots when within 1.6 kilometers (1 mile) of feeding whales or whale aggregations (6 or more whales in a group).
(D) If any vessel inadvertently approaches within 1.6 kilometers (1 mile) of observed bowhead whales, except when providing emergency assistance to whalers or in other emergency situations, the vessel operator will take reasonable precautions to avoid potential interaction with the bowhead whales by taking one or more of the following actions, as appropriate:
• Reducing vessel speed to less than 5 knots within 900 feet of the whale(s);
• Steering around the whale(s) if possible;
• Operating the vessel(s) in such a way as to avoid separating members of a group of whales from other members of the group;
• Operating the vessel(s) to avoid causing a whale to make multiple changes in direction; and
• Checking the waters immediately adjacent to the vessel(s) to ensure that no whales will be injured when the propellers are engaged.
(vii) Quintillion shall complete operations in time to ensure that vessels associated with the project complete transit through the Bering Strait to a point south of 59 degrees North latitude no later than November 15, 2016. Any vessel that encounters weather or ice that will prevent compliance with this date shall coordinate its transit through the Bering Strait to a point south of 59 degrees North latitude with the appropriate Com-Centers. Quintillion vessels shall, weather and ice permitting, transit east of St. Lawrence Island and no closer than 10 miles from the shore of St. Lawrence Island.
(7) Monitoring:
(a) Vessel-based Visual Monitoring:
(i) Vessel-based visual monitoring for marine mammals shall be conducted by NMFS-approved protected species observers (PSOs) throughout the period of survey activities.
(ii) PSOs shall be stationed aboard the cable-laying vessels and the Oliktok cable-laying barge through the duration of the subsea cable-laying operation. PSOs will not be aboard the smaller barge in waters of depths less than 12 m.
(iii) A sufficient number of PSOs shall be onboard the survey vessel to meet the following criteria:
(A) 100% Monitoring coverage during all periods of cable-laying operations in daylight;
(B) Maximum of 4 consecutive hours on watch per PSO, with a minimum 1-hour break between shifts; and
(C) Maximum of 12 hours of watch time in any 24-hour period per PSO.
(iv) The vessel-based marine mammal monitoring shall provide the basis for real-time mitigation measures as described in (6)(b) above.
(b) Protected Species Observers and Training
(i) PSO teams shall consist of Inupiat observers capable of carrying out requirements of the IHA and NMFS-approved field biologists.
(ii) Experienced field crew leaders shall supervise the PSO teams in the field. New PSOs shall be paired with experienced observers to avoid situations where lack of experience impairs the quality of observations.
(iii) Crew leaders and most other biologists serving as observers in 2016 shall be individuals with experience as observers during recent marine mammal monitoring projects in Alaska, the Canadian Beaufort, or other offshore areas in recent years.
(iv) Resumes for PSO candidates shall be provided to NMFS for review and acceptance of their qualifications. Inupiat observers shall be experienced (as hunters or have previous PSO experience) in the region and familiar with the marine mammals of the area.
(v) All observers shall complete an observer training course designed to familiarize individuals with monitoring and data collection procedures. The training course shall be completed before the anticipated start of the 2016 open-water season. The training session(s) shall be conducted by qualified marine mammalogists with extensive crew-leader experience during previous vessel-based monitoring programs.
(vi) Training for both Alaska native PSOs and biologist PSOs shall be conducted at the same time in the same room. There shall not be separate training courses for the different PSOs.
(vii) Crew members should not be used as primary PSOs because they have
(viii) If crew members are to be used in addition to PSOs, they shall go through some basic training consistent with the functions they will be asked to perform. The best approach would be for crew members and PSOs to go through the same training together.
(ix) PSOs shall be trained using visual aids (
(x) Quintillion shall train its PSOs to follow a scanning schedule that consistently distributes scanning effort appropriate for each type of activity being monitored. All PSOs should follow the same schedule to ensure consistency in their scanning efforts.
(xi) PSOs shall be trained in documenting the behaviors of marine mammals. PSOs should record the primary behavioral state (
(i) PSOs shall watch for marine mammals from the best available vantage point on the survey vessels, typically the bridge.
(ii) PSOs shall scan systematically with the unaided eye and 7 × 50 reticle binoculars, and night-vision equipment when needed.
(iii) Personnel on the bridge shall assist the marine mammal observer(s) in watching for marine mammals; however, bridge crew observations will not be used in lieu of PSO observation efforts.
(iv) Monitoring shall consist of recording of the following information:
(A) The species, group size, age/size/sex categories (if determinable), the general behavioral activity, heading (if consistent), bearing and distance from vessel, sighting cue, behavioral pace, and apparent reaction of all marine mammals seen near the vessel (
(B) The time, location, heading, speed, and activity of the vessel, along with sea state, visibility, cloud cover and sun glare at (I) any time a marine mammal is sighted, (II) at the start and end of each watch, and (III) during a watch (whenever there is a change in one or more variable);
(C) The identification of all vessels that are visible within 5 km of the vessel from which observation is conducted whenever a marine mammal is sighted and the time observed;
(D) Any identifiable marine mammal behavioral response (sighting data should be collected in a manner that will not detract from the PSO's ability to detect marine mammals);
(E) Any adjustments made to operating procedures; and
(F) Visibility during observation periods so that total estimates of take can be corrected accordingly.
(vii) Distances to nearby marine mammals will be estimated with binoculars (7 × 50 binoculars) containing a reticle to measure the vertical angle of the line of sight to the animal relative to the horizon. Observers may use a laser rangefinder to test and improve their abilities for visually estimating distances to objects in the water.
(viii) PSOs shall understand the importance of classifying marine mammals as “unknown” or “unidentified” if they cannot identify the animals to species with confidence. In those cases, they shall note any information that might aid in the identification of the marine mammal sighted. For example, for an unidentified mysticete whale, the observers should record whether the animal had a dorsal fin.
(ix) Additional details about unidentified marine mammal sightings, such as “blow only,” mysticete with (or without) a dorsal fin, “seal splash,” etc., shall be recorded.
(x) Quintillion shall use the best available technology to improve detection capability during periods of fog and other types of inclement weather. Such technology might include night-vision goggles or binoculars as well as other instruments that incorporate infrared technology.
(i) PSOs shall utilize a standardized format to record all marine mammal observations.
(ii) Information collected during marine mammal observations shall include the following:
(A) Vessel speed, position, and activity
(B) Date, time, and location of each marine mammal sighting
(C) Marine mammal information under (c)(iv)(A)
(D) Observer's name and contact information
(E) Weather, visibility, and ice conditions at the time of observation
(F) Estimated distance of marine mammals at closest approach
(G) Activity at the time of observation, including possible attractants present
(H) Animal behavior
(I) Description of the encounter
(J) Duration of encounter
(K) Mitigation action taken
(iii) Data shall be recorded directly into handheld computers or as a back-up, transferred from hard-copy data sheets into an electronic database.
(iv) A system for quality control and verification of data shall be facilitated by the pre-season training, supervision by the lead PSOs, and in-season data checks, and shall be built into the software.
(v) Computerized data validity checks shall also be conducted, and the data shall be managed in such a way that it is easily summarized during and after the field program and transferred into statistical, graphical, or other programs for further processing.
(i) Sound Source Measurements:
(a) Using a hydrophone system, the holder of this Authorization is required to conduct sound source verification test for the dynamic positioning thrusters of the cable-laying vessel early in the season.
(b) The test results shall be reported to NMFS within 5 days of completing the test.
(ii) Marine Mammal Passive Acoustic Monitoring
(a) Quintillion would support the 2016 joint Arctic Whale Ecology Study (ARCWEST)/Chukchi Acoustics, Oceanography, and Zooplankton Study-extension (CHAOZ-X).
(9) Reporting:
(a) Sound Source Verification Report: A report on the preliminary results of the sound source verification measurements, including the measured source level, shall be submitted within 14 days after collection of those measurements at the start of the field season. This report will specify the distances of the ZOI that were adopted for the survey.
(b) Technical Report (90-day Report): A draft report will be submitted to the Director, Office of Protected Resources, NMFS, within 90 days after the end of Quintillion's subsea cable-laying operation in the Bering, Chukchi, and Beaufort seas. The report will describe in detail:
(i) Summaries of monitoring effort (
(ii) Summaries that represent an initial level of interpretation of the efficacy, measurements, and observations, rather than raw data, fully processed analyses, or a summary of operations and important observations;
(iii) Analyses of the effects of various factors influencing detectability of marine mammals (
(iv) Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;
(v) Estimates of uncertainty in all take estimates, with uncertainty expressed by the presentation of confidence limits, a minimum-maximum, posterior probability distribution, or another applicable method, with the exact approach to be selected based on the sampling method and data available; and
(vi) A clear comparison of authorized takes and the level of actual estimated takes.
(d) The draft report shall be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report will be considered the final report for this activity under this Authorization if NMFS has not provided comments and recommendations within 90 days of receipt of the draft report.
(10)(a) In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by this Authorization, such as a serious injury or mortality (
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) The name and type of vessel involved;
(iii) The vessel's speed during and leading up to the incident;
(iv) Description of the incident;
(v) Status of all sound source use in the 24 hours preceding the incident;
(vi) Water depth;
(vii) Environmental conditions (
(viii) Description of marine mammal observations in the 24 hours preceding the incident;
(ix) Species identification or description of the animal(s) involved;
(x) The fate of the animal(s); and
(xi) Photographs or video footage of the animal (if equipment is available).
(b) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with Quintillion to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Quintillion may not resume their activities until notified by NMFS via letter, email, or telephone.
(c) In the event that Quintillion discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
(d) In the event that Quintillion discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in Condition 3 of this Authorization (
(11) The Plan of Cooperation outlining the steps that will be taken to cooperate and communicate with the native communities to ensure the availability of marine mammals for subsistence uses, must be implemented.
(12) This Authorization may be modified, suspended, or withdrawn if the holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.
(13) A copy of this Authorization and the Incidental Take Statement must be in the possession of each vessel operator taking marine mammals under the authority of this Incidental Harassment Authorization.
(14) Quintillion is required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion.
NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for Quintillion's proposed subsea cable-laying operation in the Bering, Chukchi, and Beaufort seas. Please include with your comments any supporting data or literature citations to help inform our final decision on Quintillion's request for an MMPA authorization.
Commodity Futures Trading Commission.
Notice of meeting.
The Commodity Futures Trading Commission (CFTC) announces that on April 26, 2016, from 10:00 a.m. to 1:30 p.m., the Market Risk Advisory Committee (MRAC) will hold a public meeting at the CFTC's Washington, DC, headquarters. The MRAC will describe and discuss how well the derivatives markets are currently functioning, including the impact and implications of the evolving structure of these markets on the movement of risk across market participants. Specific topics to be covered are listed in this Notice.
The meeting will be held on April 26, 2016, from 10:00 a.m. to 1:30
The meeting will take place in the Conference Center at the CFTC's headquarters, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. Written statements should be submitted by mail to: Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, attention: Secretary of the Commission; or by electronic mail to:
Petal Walker, MRAC Designated Federal Officer, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; (202) 418-5794.
The MRAC will describe and discuss how well the derivatives markets are currently functioning, including the impact and implications of the evolving structure of these markets on the movement of risk across market participants. Specifically, the MRAC will describe and discuss:
(a) How effectively end-users and other market participants, in different asset classes (
(b) The extent and nature of the current use of portfolio compression and related services, and the benefits and challenges posed by portfolio compression activity in the derivatives markets.
The meeting will be open to the public with seating on a first-come, first-served basis. Members of the public may also listen to the meeting by telephone by calling a domestic toll-free telephone or international toll or toll-free number to connect to a live, listen-only audio feed. Call-in participants should be prepared to provide their first name, last name, and affiliation.
Domestic Toll Free: 1-866-844-9416.
International Toll and Toll Free: Will be posted on the CFTC's Web site,
Pass Code/Pin Code: CFTC.
After the meeting, a transcript of the meeting will be published through a link on the CFTC's Web site,
5 U.S.C. app. 2 § 10(a)(2)).
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by April 14, 2016.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 16-C0002, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.
Daniel R. Vice, Trial Attorney, Division of Compliance, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-6996.
The text of the Agreement and Order appears below.
1. In accordance with the Consumer Product Safety Act, 15 U.S.C. 2051-2089 (“CPSA”) and 16 CFR 1118.20, Gree Electric Appliances, Inc., of Zhuhai, Hong Kong Gree Electric Appliances Sales Co., Ltd., and Gree USA Sales, Ltd. (collectively “Gree”), and the United States Consumer Product Safety Commission (“Commission”), through its staff, hereby enter into this Settlement Agreement (“Agreement”). The Agreement, and the incorporated attached Order, resolve staff's charges that Gree is subject to civil penalties in this matter, under section 20 of the CPSA, 15 U.S.C. 2069, as set forth below.
2. The Commission is an independent federal regulatory agency, established pursuant to, and responsible for the enforcement of, the CPSA, 15 U.S.C. 2051-2089. By executing the Agreement, staff is acting on behalf of the Commission, pursuant to 16 CFR 1118.20(b). The Commission issues the Order under the provisions of the CPSA.
3. Gree Electric Appliances, Inc., of Zhuhai, is incorporated in China, and its principal place of business is in China. Hong Kong Gree Electric Appliances Sales Co., Ltd., is incorporated in Hong Kong, and its
4. Between January 2005 and August 2013, Gree manufactured, imported, and sold approximately 2.5 million dehumidifiers manufactured before December 2012 (“Dehumidifiers”) in the United States.
5. The Dehumidifiers are a “consumer product” that was “distributed in commerce,” as those terms are defined or used in sections 3(a)(5) and (8) of the CPSA, 15 U.S.C. 2052(a)(5) and (8). Gree was a “manufacturer” and “distributor” of the Dehumidifiers, as such terms are defined in sections 3(a)(7) and (11) of the CPSA, 15 U.S.C. 2052(a)(7) and (11).
6. The Dehumidifiers are defective and create an unreasonable risk of serious injury or death because they can overheat, smoke and catch fire, posing smoke and burn hazards to consumers.
7. In July 2012, Gree began receiving reports of smoking, sparking and fires involving the Dehumidifiers. Gree received reports of property damage due to these fires.
8. In response to reports of smoking, sparking and fires, Gree implemented design changes to remedy the defect and unreasonable risk of injury or death associated with the Dehumidifiers.
9. Despite having information reasonably supporting the conclusion of a defect or the creation of an unreasonable risk of serious injury or death associated with the Dehumidifiers, Gree did not notify the Commission immediately of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4).
10. Because the information in Gree's possession constituted actual and presumed knowledge, Gree knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
11. Although Gree knew that the Dehumidifiers were not compliant with UL flammability standards, Gree sold, offered for sale, distributed in commerce, and imported the Dehumidifiers bearing the UL mark.
12. The UL mark is a registered safety certification mark owned by UL, which is an accredited conformity assessment body.
13. Because Gree knew, or should have known, that the sale, offer for sale, distribution, and importation of Dehumidifiers that were not compliant with UL standards was not authorized by UL, Gree knowingly violated section 19(a)(12) of the CPSA, 15 U.S.C. 2068(a)(12), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
14. Gree made material misrepresentations to Commission staff that the Dehumidifiers met UL flammability standards, knowing such representations to be false.
15. Gree also made material misrepresentations to Commission staff concerning the date when Gree became aware that the Dehumidifiers were not compliant with UL standards, knowing such representations to be false.
16. By knowingly making material misrepresentations to Commission staff during the course of an investigation, Gree knowingly violated section 19(a)(13) of the CPSA, 15 U.S.C. 2068(a)(13), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
17. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Gree is subject to civil penalties for its knowing violations of sections 19(a)(4), (12), and (13) of the CPSA, 15 U.S.C. 2068(a)(4), (12) and (13).
18. The signing of this Agreement does not constitute an admission by Gree that either reportable information or a substantial product hazard exists.
19. Gree enters into this Agreement to settle this matter without the delay and expense of litigation. Gree enters into this Agreement and agrees to pay the amount referenced below in compromise of the staff's charges.
20. Gree voluntarily notified the Commission in connection with the dehumidifiers in March 2013. Gree carried out a voluntary recall in cooperation with the Commission and acted to reduce the potential risk of injury.
21. Gree submits to the jurisdiction of the Commission in the matter involving the Dehumidifiers.
22. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by Gree or a determination by the Commission that Gree violated the CPSA's reporting requirements.
23. In settlement of staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation, Gree shall pay a civil penalty in the amount of fifteen million four hundred fifty thousand dollars (US$15,450,000) within thirty (30) calendar days after receiving service of the Commission's final Order accepting the Agreement. All payments to be made under the Agreement shall constitute debts owing to the United States and shall be made by electronic wire transfer to the United States via:
24. All unpaid amounts, if any, due and owing under the Agreement shall constitute a debt due and immediately owing by Gree to the United States, and interest shall accrue and be paid by Gree at the federal legal rate of interest set forth at 28 U.S.C. 1961(a) and (b) from the date of Default until all amounts due have been paid in full (hereinafter “Default Payment Amount” and “Default Interest Balance”). Gree shall consent to a Consent Judgment in the amount of the Default Payment Amount and Default Interest Balance, and the United States, at its sole option, may collect the entire Default Payment Amount and Default Interest Balance or exercise any other rights granted by law or in equity, including but not limited to referring such matters for private collection, and Gree agrees not to contest, and hereby waives and discharges any defenses to, any collection action undertaken by the United States or its agents or contractors pursuant to this paragraph. Gree shall pay the United States all reasonable costs of collection and enforcement under this paragraph, respectively, including reasonable attorney's fees and expenses.
25. After staff receives this Agreement executed on behalf of Gree, staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the
26. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and it is subject to the provisions of 16 CFR 1118.20(h). Upon the later of: (i) Commission's final acceptance of this Agreement and service of the accepted Agreement upon Gree, and (ii) the date of issuance of the final Order, this Agreement shall be in full force and effect and shall be binding upon the parties.
27. Effective upon the later of: (i) the Commission's final acceptance of the Agreement and service of the accepted Agreement upon Gree, and (ii) and the date of issuance of the final Order, for good and valuable consideration, Gree hereby expressly and irrevocably waives and agrees not to assert any past, present, or future rights to the following, in connection with the matter described in this Agreement: (i) an administrative or judicial hearing; (ii) judicial review or other challenge or contest of the Commission's actions; (iii) a determination by the Commission of whether Gree failed to comply with the CPSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.
28. Gree shall implement and maintain a compliance program designed to ensure compliance with the CPSA and regulations enforced by the Commission with respect to any consumer product manufactured, imported, distributed, or sold by Gree, and which, at a minimum, shall contain the following elements:
a. written standards and policies;
b. written procedures that provide for the appropriate forwarding to compliance personnel of all information that may relate to, or impact, CPSA compliance, including all reports and complaints involving consumer products, whether an injury is referenced or not;
c. a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary;
d. effective communication of company compliance-related policies and procedures regarding the CPSA to all applicable employees through training programs or otherwise;
e. Gree senior management responsibility for CPSA compliance and accountability for violations of the statutes and regulations enforced by the Commission;
f. Gree governing body oversight of CPSA compliance; and
g. retention of all CPSA compliance-related records for at least five (5) years, and availability of such records to staff upon reasonable request.
29. Gree shall implement, maintain, and enforce a system of internal controls and procedures designed to ensure that, with respect to all consumer products manufactured, imported, distributed, or sold by Gree:
a. information required to be disclosed by Gree to the Commission is recorded, processed, and reported in accordance with applicable law;
b. all reporting made to the Commission is timely, truthful, complete, accurate, and in accordance with applicable law; and
c. prompt disclosure is made to Gree's management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to affect adversely, in any material respect, Gree's ability to record, process, and report to the Commission in accordance with applicable law.
30. Upon reasonable request of staff, Gree shall provide written documentation of its improvements, processes and controls, including, but not limited to, the effective dates of such improvements, processes and controls as set forth in paragraphs 28 through 29 above. Upon reasonable request, Gree shall cooperate fully and truthfully with staff and shall make available, in a manner agreed to by the parties, all non-privileged information and materials, and personnel deemed necessary by staff to evaluate Gree's compliance with the terms of the Agreement.
31. The parties acknowledge and agree that the Commission may publicize the terms of the Agreement and the Order.
32. Gree represents that the Agreement: (i) is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever; (ii) has been duly authorized; and (iii) constitutes the valid and binding obligation of Gree, enforceable against Gree in accordance with its terms. Gree will not directly or indirectly receive any reimbursement, indemnification, insurance-related payment, or other payment in connection with the civil penalty to be paid by Gree pursuant to the Agreement and Order. The individuals signing the Agreement on behalf of Gree represent and warrant that they are duly authorized by Gree to execute the Agreement.
33. The signatories represent that they are authorized to execute this Agreement.
34. The Agreement is governed by the laws of the United States.
35. The Agreement and the Order shall apply to, and be binding upon, Gree and each of its successors, transferees, and assigns, and a violation of the Agreement or Order may subject Gree, and each of its successors, transferees, and assigns, to appropriate legal action.
36. Nothing herein shall preclude the Commission from initiating any other proceedings to enforce the Order.
37. The Agreement and the Order constitute the complete agreement between the parties on the subject matter contained therein.
38. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties and shall not, therefore, be construed against any party for that reason in any subsequent dispute.
39. The Agreement may not be waived, amended, modified, or otherwise altered, except as in accordance with the provisions of 16 CFR 1118.20(h). The Agreement may be executed in counterparts.
40. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and Gree agree in writing that severing the provision materially affects the purpose of the Agreement and the Order.
Upon consideration of the Settlement Agreement entered into between Gree Electric Appliances, Inc. of Zhuhai, Hong Kong Gree Electric Appliances Sales Co., Ltd., and Gree USA Sales, Ltd. (collectively “Gree”), and the U.S. Consumer Product Safety Commission (“Commission”), and Gree having submitted to the jurisdiction of the Commission with respect to the subject matter, and it appearing that the Settlement Agreement and the Order are in the public interest, it is:
Provisionally accepted and provisional Order issued on the 25th day of March, 2016.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. Sec. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirement on respondents can be properly assessed.
Currently, CNCS is soliciting comments concerning its proposed AmeriCorps NCCC's (National Civilian Community Corps) Member Experience Survey. This survey was developed to support NCCC performance measurement for use in program development, funding, and evaluation. The survey instrument will be completed by NCCC Members following the completion of their service term. In particular, this survey will be administered to NCCC Members who are exiting early or have already exited early from the AmeriCorps NCCC program. Completion of this information collection is not required for the completion of a service term with NCCC.
Copies of the information collection request can be obtained by contacting the office listed in the Addresses section of this Notice.
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1) By mail sent to: Corporation for National and Community Service, National Civilian Community Corps; Attention Barbara Lane, Director Projects and Partnerships, Room 3240, 250 E. Street SW., Washington, DC 20525.
(2) By hand delivery or by courier to the CNCS mailroom at Room 4200 at the mail address given in paragraph (1) above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except federal holidays.
(3) Electronically through
Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.
Barbara Lane, 202-606-6867, or by email at
CNCS is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
This information collection serves as part of an overall AmeriCorps NCCC logic model to help measure the degree to which the program is addressing the statuary areas of national and community needs in a way that strengthens communities and builds leaders. The survey will be administered electronically to all members departing early from the program.
This is a new information collection request. The NCCC Member Experience Survey consists of between 29 and 30 questions, depending on which
Comments submitted in response to this Notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Defense Finance and Accounting Service (DFAS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by May 31, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Finance and Accounting Services, 1240 East 9th Street, Enterprise Solutions and Standards Code JJFJB, Cleveland, Ohio 44199, ATTN: Stuart Kran, or email:
When the Disbursing Officer/Finance Officer is not authorized to make payment due to lapsed appropriations, more than the current and previous five years, the claim is forwarded to the appropriate DFAS site for settlements. Claims are to be submitted on a DD 827. All necessary documentation must be attached to the claim. If the member is on active duty or separated for less than one year, the claim will be sent to the site servicing that branch of service. Army and Air Force claims will be sent to DFAS-IN, Navy and Marine Corps claims will be sent to DFAS-CL. For members separated over one year, the claim will be sent to DFAS-IN, Debts and Claims Management Office.
Department of the Navy, Department of Defense.
Notice.
Pursuant to the National Environmental Policy Act (NEPA) of 1969 (Public Law [Pub. L.] 91-190, 42 United States Code [U.S.C.] 4321-4347), as implemented by the Council on Environmental Quality (CEQ) regulations implementing NEPA (40 Code of Federal Regulations [CFR] Parts 1500-1508), the Department of the Navy (DoN) has prepared and filed the Draft Environmental Impact Statement (EIS) to evaluate the potential human and natural environmental consequences of the disposal of surplus property at Naval Station (NAVSTA) Newport, Rhode Island, by the Navy and its subsequent redevelopment by the respective municipalities in which the surplus property is geographically located. Public Law 101-510, the Defense Base Closure and Realignment Act of 1990, as amended in 2005 (BRAC Law), has directed the Navy to realign NAVSTA Newport. As a result of this action, the Navy has declared approximately 158 acres of land area at NAVSTA Newport to be surplus to the needs of the federal government.
With the filing of the Draft EIS, the DoN is initiating a 45-day public comment period and has scheduled two public open house meetings to provide information and receive written comments on the Draft EIS. Federal, state, and local elected officials and agencies and the public are encouraged to provide written comments.
The Navy will hold two open house public meetings at the locations listed below and will allow individuals to review and comment on the information presented in the Draft EIS. DoN representatives will be available during the open house to clarify information presented in the Draft EIS, as necessary. There will not be a formal presentation.
Director, BRAC Program Management Office (PMO) East, Attn: Newport EIS, 4911 South Broad Street, Building 679, Philadelphia, PA 19112-1303, telephone 215-897-4900, fax: 215-897-4902; email:
The Draft EIS was prepared in accordance with the requirements of the BRAC Law; NEPA; the CEQ regulations implementing NEPA (40 CFR 1500-1508); Navy procedures for implementing NEPA (32 CFR 775), Office of the Chief of Naval Operations (OPNAV) Manual M-5090.1; and other applicable Department of Defense (DoD) and Navy policies and guidance. A Notice of Intent (NOI) to prepare this Draft EIS was published in the
The purpose of the proposed action is to comply with the BRAC Law and provide for the disposal and reuse of surplus property at NAVSTA Newport in a manner consistent with the Aquidneck Island Reuse Planning Authority's (AIRPA) Redevelopment Plan for Surplus Properties at NAVSTA Newport (Redevelopment Plan). The proposed action is needed to provide the local community an opportunity for economic development and job creation.
The Draft EIS has considered two redevelopment alternatives. Alternative 1, the preferred alternative, is the disposal of the surplus property and reuse in accordance with the Redevelopment Plan, which has been prepared and approved by the AIRPA. Alternative 1 includes mixed land use types and densities for each of four non-contiguous surplus properties as well as open space and natural areas. Alternative 2 provides for the disposal of the surplus property at NAVSTA Newport and redevelopment at a higher density and with a different mix of uses than Alternative 1. A No Action alternative was also considered, as required by NEPA and to provide a point of comparison for assessing impacts of the redevelopment alternatives.
The four surplus properties to be redeveloped are located in three separate municipalities on Aquidneck Island: Former Navy Lodge (approximately 3 acres located in the Town of Middletown), Former Naval Hospital (approximately 15.2 acres, consisting of 8.3 acres of land and 6.9 acres of offshore riparian rights, located in the City of Newport), Tank Farms 1 and 2 (approximately 136 acres located in the Town of Portsmouth), and Midway Pier/Greene Lane (approximately 10.7 acres located in the Town of Middletown).
Federal, state, and local agencies, as well as interested members of the public, are invited and encouraged to review and comment on the Draft EIS. The Draft EIS is available for viewing at the following locations: Newport Public Library (300 Spring Street, Newport, RI 02840), Town of Portsmouth Town Hall (2200 East Main Road, Portsmouth, RI 02871), City of Newport, City Hall (43 Broadway, Newport, RI 02840), and Town of Middletown Planning Department (350 East Main Road, Middletown, RI 02842).
An electronic version of the Draft EIS can be viewed or downloaded at the following Web sites—
Comments can be made in the following ways: (1) Written statements can be submitted to a DoN representative at the public meeting; (2) written comments can be mailed to Director, BRAC PMO East, Attn: Newport EIS, 4911 South Broad Street, Building 679, Philadelphia, PA 19112-1303; (3) written comments can be emailed to
Requests for special assistance, sign language interpretation for the hearing impaired, language interpreters, or other auxiliary aids for the scheduled public meetings must be sent by mail or email to Mr. Matthew Butwin, Ecology and Environment, Inc., 368 Pleasant View Drive, Lancaster, NY 14086, telephone: 716-684-8060, email:
U.S. Election Assistance Commission.
Thursday, April 14, 2016, 9 a.m.-5 p.m. and Friday, April 15, 2016, 8:10 a.m.-12 p.m. (Executive Board Session: Thursday, April 14, 2016, 7:30 p.m.).
The Sheraton Carlsbad Hotel, 5480 Grand Pacific Drive, Carlsbad, CA 92008, Phone: (760) 827-2400.
This meeting will be open to the public.
The U.S. Election Assistance Commission (EAC) Standards Board will meet to address its responsibilities under the Help America Vote Act of 2002 (HAVA), to present its views on issues in the administration of Federal elections, formulate recommendations to the EAC, and receive updates on EAC activities.
The Standards Board will receive an overview of EAC Agency Operations, and will receive updates on EAC Grants and Audits, EAC Testing and Certification, and EAC's New Web site Rollout. The Board will receive an update on the Status of State Testing and Certification Consortium. The Board will receive an update on the work of EAC's Technical Guidelines Development Committee (TGDC). The Board will discuss and vote on recommendations from the TGDC. The Board will receive briefings from the National Association of Secretaries of State (NASS), the Federal Voting Assistance Program (FVAP), and the United States Postal Service (USPS).
The Standards Board will conduct committee breakout sessions and hear committee reports. The Board will discuss and vote on proposed Bylaws amendments, and will fill vacancies on the Executive Board of the Standards Board. The Executive Board will elect new officers, appoint Standards Board committee members and chairs, and consider other administrative matters.
Bryan Whitener, Telephone: (301) 563-3961.
Fuel Cycle Technologies, Office of Nuclear Energy, Department of Energy.
Notice of public meeting.
The U.S. Department of Energy (DOE) is implementing a consent-based siting process to establish an integrated waste management system to transport, store, and dispose of spent nuclear fuel and high-level radioactive waste. In a consent-based siting approach, DOE will work with communities, tribal governments and states across the country that express interest in hosting any of the facilities identified as part of an integrated waste management system. As part of this process, the Department is hosting a series of public meetings to engage communities and individuals and discuss the development of a consent-based approach to managing our nation's nuclear waste. A public meeting will be held in Tempe, AZ on June 23, 2016.
The meeting will take place on Thursday, June 23, 2016 from 5:00 p.m. to 9:30 p.m. MST. Informal poster sessions will be held from 4:00 p.m. until 5:00 p.m. MST and again after 9:30 p.m. MST. Department officials will be available to discuss consent-based siting during the poster sessions.
The meeting will be held at Marriott Phoenix Tempe at the Buttes, 2000 W Westcourt Way, Tempe, AZ 85282. To register for this meeting and to review the agenda for the meeting, please go to
Requests for further information should be sent to
If you are unable to attend a public meeting or would like to further discuss ideas for consent-based siting, please request an opportunity for us to speak with you. The Department will do its best to accommodate such requests and help arrange additional opportunities to engage. To learn more about nuclear energy, nuclear waste, and ongoing technical work please go to
Fuel Cycle Technologies, Office of Nuclear Energy, Department of Energy.
Notice of public meeting.
The U.S. Department of Energy (DOE) is implementing a consent-based siting process to establish an integrated waste management system to transport, store, and dispose of spent nuclear fuel and high-level radioactive waste. In a consent-based siting approach, DOE will work with communities, tribal governments and states across the country that express interest in hosting any of the facilities identified as part of an integrated waste management system. As part of this process, the Department is hosting a series of public meetings to engage communities and individuals and discuss the development of a consent-based approach to managing our nation's nuclear waste. A public meeting will be held in Denver, CO on May 24, 2016.
The meeting will take place on Tuesday, May 24, 2016 from 5:00 p.m. to 9:30 p.m. MDT. Informal poster sessions will be held from 4:00 p.m. until 5:00 p.m. MDT and again after 9:30 p.m. MDT. Department officials will be available to discuss consent-based siting during the poster sessions.
The meeting will be held at Embassy Suites Denver—Stapleton, 4444 N Havana Street, Denver, CO 80239. To register for this meeting and
Requests for further information should be sent to
If you are unable to attend a public meeting or would like to further discuss ideas for consent-based siting, please request an opportunity for us to speak with you. The Department will do its best to accommodate such requests and help arrange additional opportunities to engage. To learn more about nuclear energy, nuclear waste, and ongoing technical work please go to
Fuel Cycle Technologies, Office of Nuclear Energy, Department of Energy.
Notice of public meeting.
The U.S. Department of Energy (DOE) is implementing a consent-based siting process to establish an integrated waste management system to transport, store, and dispose of spent nuclear fuel and high-level radioactive waste. In a consent-based siting approach, DOE will work with communities, tribal governments and states across the country that express interest in hosting any of the facilities identified as part of an integrated waste management system. As part of this process, the Department is hosting a series of public meetings to engage communities and individuals and discuss the development of a consent-based approach to managing our nation's nuclear waste. A public meeting will be held in Boston, MA on June 2, 2016.
The meeting will take place on Thursday, June 2, 2016 from 5:00 p.m. to 9:30 p.m. EDT. Informal poster sessions will be held from 4:00 p.m. until 5:00 p.m. EDT and again after 9:30 p.m. EDT. Department officials will be available to discuss consent-based siting during the poster sessions.
The meeting will be held at Hyatt Regency Boston, One Avenue De Lafayette, Boston, MA 02111. To register for this meeting and to review the agenda for the meeting, please go to
Requests for further information should be sent to
If you are unable to attend a public meeting or would like to further discuss ideas for consent-based siting, please request an opportunity for us to speak with you. The Department will do its best to accommodate such requests and help arrange additional opportunities to engage. To learn more about nuclear energy, nuclear waste, and ongoing technical work please go to
Office of Energy Policy and Systems Analysis, Secretariat, Quadrennial Energy Review Task Force, Department of Energy.
Notice of public meetings and updated meeting locations.
At the direction of the President, the U.S. Department of Energy (DOE or Department), as the Secretariat for the Quadrennial Energy Review Task Force (QER Task Force), will convene public meetings for the second installment of the Quadrennial Energy Review, an integrated study of the U.S. electricity system from generation through end use. A mixture of panel discussions and a public comment period will frame multi-stakeholder discourse around deliberative analytical questions relating to the intersection of electricity and its role in promoting economic competitiveness, energy security, and environmental responsibility. This document announces that the Atlanta meeting which was originally scheduled for March 31 will now be held on May 24.
The public meetings will be held on April 15, 2016 in Boston, Massachusetts at 9:30 a.m.; April 25, 2016 in Salt Lake City, Utah at 8:30 a.m.; May 6, 2016 in Des Moines, Iowa; May 9, 2016 in Austin, Texas; May 10, 2016 in Los Angeles, California; and May 24, 2016 in Atlanta, Georgia. Written comments are welcome, especially following the public meetings, and should be submitted within 60 days of the meetings, but no later than July 1, 2016.
The April 15, 2016, QER meeting in Boston will take place at the Marriott Long Wharf, Salons DEFL, 296 State Street, Boston, Massachusetts. The April 25 QER meeting in Salt Lake City will take place at Western Electricity Coordinating Council, 155 North 400 West, Suite 200, Salt Lake City, Utah. Additional QER meeting locations and addresses will be announced when they are available, in
Between February 4, 2016 and July 1, 2016, you may submit written comments online at
John Richards, EPSA-60, U.S. Department of Energy, Office of Energy Policy and Systems Analysis, 1000 Independence Avenue SW., Washington, DC 20585-0121.
On January 9, 2014, President Obama issued a
The Quadrennial Energy Review process itself involves robust engagement of federal agencies and outside stakeholders, and further enables the federal government to translate policy goals into a set of analytically based, integrated actions for proposed investments over a four year planning horizon. Unlike traditional federal Quadrennial Review processes, the QER is conducted in a multi-year installment series to allow for more focused analysis on particular sub-sectors of the energy system. The initial focus for the Quadrennial Energy Review was our Nation's transmission, storage and distribution infrastructures that link energy supplies to intermediate and end users, because these capital-intensive infrastructures tend to set supply and end use patterns, investments and practices in place for decades. On April 21, 2015, the Quadrennial Energy Review Task Force released its first Quadrennial Energy Review installment report entitled, “Energy Transmission, Storage, and Distribution Infrastructure”. Among the issues highlighted by the analysis in the first installment of the QER were the growing dependencies of all critical infrastructures and economic sectors on electricity, as well as, the increasing interdependence of the various energy subsectors. In response to these findings, and to provide an appropriate consideration of an energy sector undergoing significant technological and regulatory change, the second installment of the QER will conduct a comprehensive review of the nation's electricity system, from generation to end use, including a more comprehensive look at electricity transmission, storage, and distribution infrastructure covered in installment one. The electricity system encompasses not just physical structures, but also a range of actors and institutions. Under this broad framing, the second installment intends to consider the roles and activities of all relevant actors, industries, and institutions integral to continuing to supply reliable and affordable electricity at a time of dramatic change in technology development. Issues to be considered in QER analyses include fuel choices, distributed and centralized generation, physical and cyber vulnerabilities, federal, state, and local policy direction, expectations of residential and commercial consumers, and a review of existing and evolving business models for a range of entities throughout the system.
Significant changes will be required to meet the transformational opportunities and challenges posed by our evolving electricity system. The Administration is seeking public input on key questions relating to possible federal actions that would address the challenges and take full advantage of the opportunities of this changing system to meet the Nation's objectives of reliable, affordable and clean electricity. Over the course of 2016, the Secretariat for the Quadrennial Energy Review Task Force will hold a series of public meetings to discuss and receive comments on the issues outlined above, and well as, others, as they relate to the second installment of the Quadrennial Energy Review.
The Department of Energy has a broad role in energy policy development and the largest role in implementing the Federal Government's energy research and development portfolio. Many other executive departments and agencies also play key roles in developing and implementing policies governing energy resources and consumption, as well as, associated environmental impacts. In addition, non-Federal actors are crucial contributors to energy policies. Because most energy and related infrastructure is owned by private entities, investment by and engagement of, input from the private sector is necessary to develop and implement effective policies. State and local policies, the views of non-governmental, environmental, faith-based, labor, and other social organizations, and contributions from the academic and non-profit sectors are also critical to the development and implementation of effective Federal energy policies.
The interagency Quadrennial Energy Review Task Force, which includes members from all relevant executive departments and agencies, will develop an integrated review of energy policy that integrates all of these perspectives. It will build on the foundation provided in the Administration's
This document announces that the Atlanta meeting which was originally scheduled (81 FR 12885, March 11, 2016) for March 31 will now be held on May 24. The DOE will hold public meetings on electricity from generation through end use, in the following cities:
Each meeting will feature facilitated panel discussions, followed by an open microphone session. People who would like to speak during the open microphone session at the public meeting should come prepared to speak for no more than five minutes and will be accommodated on a first-come, first-served basis, according to the order in which they register to speak on a sign-in sheet available at the meeting location, on the morning of the meeting. In advance of the meetings, DOE anticipates making publicly available a briefing memorandum providing useful background information regarding the topics under discussion at the meeting. DOE will post this memorandum on its Web site:
Do not submit information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through the DOE Web site cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section, below.
If you do not want your personal contact information to be publicly
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest. It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Cargill Power Markets, LLC (Applicant or CPM) has applied to renew its authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before April 29, 2016.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On June 1, 2011, DOE issued Order No. EA-378 to CPM, which authorized the Applicant to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. That authority expires on June 1, 2016. On March 16, 2016, the Applicant filed an application with DOE for renewal of the export authority contained in Order No. EA-378 for an additional five-year term.
In its application, CPM states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that CPM proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by CPM have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning CPM's application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-378-A. An additional copy is to be provided directly to Stephen Dvorske, Cargill Power Markets, LLC, 9350 Excelsior Blvd. MS 150, Hopkins, MN 55343.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Cargill Power Markets, LLC (Applicant or CPM) has applied to renew its authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before April 29, 2016.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On June 1, 2011, DOE issued Order No. EA-209-C to CPM, which authorized the Applicant to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities. That authority expires on June 1, 2016. On March 16, 2016, CPM filed an application with DOE for renewal of the export authority contained in Order No. EA-216 for an additional five-year term.
In its application, CPM states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that CPM proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by CPM have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning CPM's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-209-D. An additional copy is to be provided directly to Stephen Dvorske, Cargill Power Markets, LLC, 9350 Excelsior Blvd., MS 150, Hopkins, MN 55343.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Intercom Energy, Inc. (Applicant or Intercom) has applied to renew its authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before April 29, 2016.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On May 17, 2011, DOE issued Order No. EA-289-B to Intercom, which authorized the Applicant to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. That authority expires on May 17, 2016. On March 22, 2016, Intercom filed an application with DOE for renewal of the export authority contained in Order No. EA-289 for an additional five-year term.
In its application, Intercom states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that Intercom proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by
Comments and other filings concerning Intercom's application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-289-C. An additional copy is to be provided directly to Ernesto Pallares, Intercom Energy, Inc., 1224 Tenth Avenue, Suite 202, Coronado, CA 92118 and to William DeGrandis, Paul Hastings, LLP, 875 15th Street NW., Washington, DC 20005.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Fuel Cycle Technologies, Office of Nuclear Energy, Department of Energy.
Notice of public meeting.
The U.S. Department of Energy (DOE) is implementing a consent-based siting process to establish an integrated waste management system to transport, store, and dispose of spent nuclear fuel and high-level radioactive waste. In a consent-based siting approach, DOE will work with communities, tribal governments and states across the country that express interest in hosting any of the facilities identified as part of an integrated waste management system. As part of this process, the Department is hosting a series of public meetings to engage communities and individuals and discuss the development of a consent-based approach to managing our nation's nuclear waste. A public meeting will be held in Sacramento, CA on April 26, 2016.
The meeting will take place on Tuesday April 26, 2016 from 5:00 p.m. to 9:30 p.m. PDT. Informal poster sessions will be held from 4:00 p.m. until 5:00 p.m. PDT and again after 9:30 p.m. PDT. Department officials will be available to discuss consent-based siting during the poster sessions.
The meeting will be held at Holiday Inn Capitol Plaza—Sacramento, 300 J Street, Sacramento, CA 95814. To register for this meeting and to review the agenda for the meeting, please go to
Requests for further information should be sent to
If you are unable to attend a public meeting or would like to further discuss ideas for consent-based siting, please request an opportunity for us to speak with you. The Department will do its best to accommodate such requests and help arrange additional opportunities to engage. To learn more about nuclear energy, nuclear waste, and ongoing technical work please go to
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces that EPA is planning to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB). The ICR, entitled: “Use of Mercury and Mercury Compounds in Products and Processes” and identified by EPA ICR No. 2532.01 and OMB Control No. 2070-NEW, represents a new request. Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment.
Comments must be received on or before May 31, 2016.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0125, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
3. Enhance the quality, utility, and clarity of the information to be collected. In particular, EPA seeks comment on these aspects of the questionnaire:
• Are there additional products or product categories that should be included in the questionnaire?
• Are there additional products or product categories that should be eliminated from the questionnaire?
• Should the questionnaire ask respondents to identify which products are intended solely as replacement parts?
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
To close such data gaps, EPA will collect information from persons who process, import, and/or export mercury or mercury-added products. In addition, EPA will request information from persons who process mercury or mercury compounds for use in certain industrial processes. EPA is particularly interested in the amount of mercury or mercury compounds used in mercury-added products as a whole and among various categories of products, including mercury or mercury compounds that are added during domestic manufacture, as well as contained in imported and exported products.
Initially this will be a one-time information collection, but EPA may request subsequent renewals of OMB approval of the information collection as necessary. Information will be collected from companies that manufacture, import, or export a product or products containing mercury or mercury compounds, or companies that use mercury or mercury compounds in a manufacturing process or processes. EPA will request that companies voluntarily submit responses to a questionnaire during a period of 60 days after OMB approves the proposed collection. Thereafter, EPA will issue formal measures under section 11 of the Toxic Substances Control Act (TSCA) to obtain the information if appropriate. EPA anticipates that the information collection activity will involve 250 private entities, although the number of entities may be as high as 646. The years of interest are 2010, 2013, and 2016.
EPA will use the collected information to determine whether and if so what type of actions, including voluntary and/or mandatory measures, are needed to reduce non-essential use of mercury or mercury compounds. The Agency will also use such information to prioritize where and how EPA applies measures in order to help prevent potential risks of mercury exposure to human health and the environment. In addition, this information will be used to facilitate compliance with obligations of the United States under the Minamata Convention to continue to reduce the use of mercury in products and processes and to report on actions taken to do so.
Responses to the collection of information are voluntary. However, should EPA initiate TSCA section 11 actions to compel submission of information, those responses would be mandatory. Respondents may claim all or part of a notice confidential. EPA will disclose information that is covered by a claim of confidentiality only to the extent permitted by, and in accordance with, the procedures in TSCA section 14 and 40 CFR part 2.
The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
44 U.S.C. 3501
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Regional Haze Regulations (Renewal)” (EPA ICR No. 1813.09, OMB Control No. 2060-0421) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before April 29, 2016.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2003-0162, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Chris Werner, Air Quality Policy Division, Office of Air Quality Planning and Standards, C539-04, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-5133; fax number: (919) 541-5315; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice of a public meeting.
The U.S. Environmental Protection Agency (EPA) announces an opportunity for public input on the EPA's tools and information related to drinking water cyanotoxin management. The EPA is holding a public meeting for interested parties to provide input either
The public meeting will be held on April 29, 2016, from 9:15 a.m. to 12:30 p.m., Central Standard Time. Registration and check-in begins at 8:45 a.m. Persons wishing to attend the meeting in person or online via webinar must register by April 28, 2016, as described in the
The public meeting will be held at 77 West Jackson Blvd., Chicago, Illinois, Lake Michigan conference room on the 12th floor. All attendees must show government-issued photo identification (
Members of the public who wish to receive further information about the public meeting or have questions about this notice should contact Hannah Holsinger at (202) 564-0403 or
a.
b.
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Cyanobacteria are naturally occurring organisms similar to algae. These organisms can occur in fresh water and may rapidly multiply causing “blooms” under favorable conditions. Conditions that enhance bloom formation and persistence include light intensity and duration, nutrient availability (such as nitrogen and phosphorus), water temperature, pH and water column stability. Some blooms produce cyanotoxins such as microcystin, cylindrospermopsin and anatoxin-a, which can be a health concern. For additional background information on cyanotoxins in drinking water, please go to:
The EPA released health advisories in June 2015 for two cyanotoxins: Microcystin and cylindrospermopsin. In June 2015, the EPA also released recommendations for public water systems on managing risks from cyanotoxins in drinking water. For additional background information on the health advisories and recommendations, please go to:
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces applicability determinations, alternative monitoring decisions, and regulatory interpretations that the Environmental Protection Agency (EPA) has made under the New Source Performance Standards (NSPS); the National Emission Standards for Hazardous Air Pollutants (NESHAP); and/or the Stratospheric Ozone Protection Program.
An electronic copy of each complete document posted on the Applicability Determination Index (ADI) data system is available on the Internet through the Resources and Guidance Documents for Compliance Assistance page of the Clean Air Act Compliance Monitoring Web site under “Air” at:
The General Provisions of the NSPS in 40 Code of Federal Regulations (CFR) part 60 and the General Provisions of the NESHAP in 40 CFR part 61 provide that a source owner or operator may request a determination of whether certain intended actions constitute the commencement of construction,
EPA currently compiles EPA-issued NSPS and NESHAP applicability determinations, alternative monitoring decisions, and regulatory interpretations, and posts them to the ADI on a regular basis. In addition, the ADI contains EPA-issued responses to requests pursuant to the stratospheric ozone regulations, contained in 40 CFR part 82. The ADI is a data system on the Internet with over three thousand EPA letters and memoranda pertaining to the applicability, monitoring, recordkeeping, and reporting requirements of the NSPS, NESHAP, and stratospheric ozone regulations. Users can search for letters and memoranda by date, office of issuance, subpart, citation, control number, or by string word searches.
Today's notice comprises a summary of 66 such documents added to the ADI on March 22, 2016. This notice lists the subject and header of each letter and memorandum, as well as a brief abstract of the letter or memorandum. Complete copies of these documents may be obtained from the ADI on the Internet through the Resources and Guidance Documents for Compliance Assistance page of the Clean Air Act Compliance Monitoring Web site under “Air” at:
The following table identifies the control number for each document posted on the ADI data system on March 22, 2016; the applicable category; the section(s) and/or subpart(s) of 40 CFR part 60, 61, or 63 (as applicable) addressed in the document; and the title of the document, which provides a brief description of the subject matter.
We have also included an abstract of each document identified with its control number after the table. These abstracts are provided solely to alert the public to possible items of interest and are not intended as substitutes for the full text of the documents. This notice does not change the status of any document with respect to whether it is “of nationwide scope or effect” for purposes of CAA section 307(b)(1) For example, this notice does not convert an applicability determination for a particular source into a nationwide rule. Neither does it purport to make a previously non-binding document binding.
Q: Will EPA approve a change to the previously approved March 22, 2011 alternative monitoring plan (AMP) for Shell Oil Products Puget Sound Refinery (PSR) in Anacortes, Washington?
A: Yes. EPA conditionally approves Shell's revision to the PSR 2011 AMP. For the monitoring of H2S, PSR is requesting to monitor as required by NSPS subpart J, rather than the alternative monitoring method that was specified in the 2011 AMP. PSR requests that certain portions of the approved AMP stay in place to maintain approval of an alternative means for demonstrating compliance for three interconnected flares. The conditions that must be satisfied to allow PSR to rely on the AMP instead of utilizing an H2S continuous monitoring system according to subpart J are stated in the EPA approval letter.
Q: Will EPA approve an alternative monitoring plan (AMP) for the Shell Oil Anacortes, Washington facility to install, maintain, and operate a total sulfur continuous monitoring system (CMS) as an alternative to a hydrogen sulfide (H2S) CMS, and to use sulfur data collected at the east flare to represent the sulfur content at the north and south flares?
A: Yes. EPA conditionally approves Shell's AMP for utilizing a H2S CMS. The conditions to allow Shell to rely on the AMP instead of utilizing an H2S CMS are stated in the EPA is approval letter.
Q: Will EPA grant approval of exempted status under 40 CFR 60.2887(h) of the NSPS subpart EEEE as a rural institutional waste incinerator for an incineration unit that Glacier Bay National Park and Preserve (the Park) in Alaska intends to purchase and install?
A: Yes. EPA determines that the proposed incinerator meets the exclusion for rural institutional waste incinerators because the unit is located more than 50 miles from the boundary of the nearest Metropolitan Statistical Area, alternative disposal options are not available or are economically infeasible, and the Park has submitted this request prior to initial startup of the incinerator.
Q: Are all on-site units at Kalama Export located in Kalama, Washington that were constructed after August 3, 1978, subject to NSPS subpart DD for Grain Elevators when applicability is triggered due to expanded capacity?
A: No. In its response to the Southwest Clean Air Agency in Vancouver, Washington, EPA explains that the rule applies to each individual affected facility at a grain elevator. Therefore, only the units that are constructed, modified, or reconstructed when and after the NSPS is triggered because of expanded capacity become subject to the rule.
Q1: Does NSPS subpart AAAA for Small Municipal Waste Combustion (MWC) Units apply to gas combustion turbine that combust a small amount of non-condensable hydrocarbon gases, which is located at the Green Power facility in Pasco, Washington?
A1: Yes. In a response to the Washington State Department of Ecology and the counsel to the source, EPA indicates that the NSPS subpart AAAA applies to the gas combustion turbine it is considered to be within the MWC unit boundaries and based on the capacity of the MWC. Based on the MWC definition at 40 CFR 60.1465, the catalytic pressure-less de-polymerization process (CDP) begins the MWC since it is used to convert municipal solid waste into synthetic liquid petroleum fuel, which includes a small amount of non-condensable hydrocarbon gases. Since the non-condensable hydrocarbon gas generated by the CDP is combusted in the turbine, the compressor section and combustor section of the turbine at the facility are within the MWC boundaries. In addition, it is determine that the combustion capacity of the MWC, which would not include the capacity attributable to the flare since it is a control device, is within the applicable range of subpart AAAA. Furthermore, the Green Power operation does not combust landfill gases and the landfill gas exemption, therefore, is not applicable.
Q2: Does NSPS subpart AAAA apply to the Green Power CDP if it operates in anaerobic environment, exposed only to inert gases, due to explosion hazard?
A2: No. EPA determines that the Green Power CDP would not be subject to Subpart AAAA due to the absence of combustion if the plant is constructed such that there is no combustion of the synthetic fuel product.
Q3: Does NSPS subpart AAAA apply to the Green Power proposed Algae Production Alternative whereby the non-condensable hydrocarbon gases produced in the reactor are routed to a biological treatment unit as a nutrient in the production of algae which would subsequently be harvested and reintroduced as a feedstock for the CDP process?
A3: No. EPA determines that in this scenario Subpart AAAA would not apply due to the absence of combustion.
Q: Will EPA approve a source test plan submitted by Eielson Air Force Base in Alaska for a particulate matter source test on six bin vent filters for a new mechanical coal tipper subject to NSPS subpart Y?
A: Yes. EPA approves the Eielson source test plan under subpart Y. Eielson has incorporated the guidance received by EPA regarding the proper location for a testing port installation to address issues with inadequate duct diameter sizing for that bin into the source test plan.
Q1: Will EPA, in consideration of difficulty in applying existing methods to new technology, waive the Method 5 and a portion of the Method 9 readings for three ship loader bustle filters at EGT Development, LLC's (EGT's) Export Elevator facility at Port of Longview, Washington?
A1: Yes. EPA grants EGT the waiver for the Method 5 reading required under the initial performance and for a portion of the required Method 9 readings for the three bustle filters for several reasons. There are technical difficulties that arise in performing the test methods with the new loading spout dust control system design. Specifically, technical issues arise with conducting the Method 5 test where the loading spout dust control system has been moved to the bottom of the ship loader spout, and with conducting a Method 9 opacity reading while the loading spout is within the hold of the ship loading grain. These technical issues combined with the anticipated significant margin of compliance, the testing of other units with identical filter media at the same facility, and the opacity readings that can be performed justifies the waiver approval.
Q2: Will EPA approve a waiver of initial performance testing for certain Donaldson bin vent CPV design PowerCore Filters (CPV filters) that EGT plans to install at this facility when they are in a group of identical units?
A2: Yes. EPA waives the initial Method 5 performance test for certain CPV filters as outlined in the EPA approval letter. NSPS emission test results with Duraplex filter media show maximum emissions are an order of magnitude lower than the
Q: Will EPA waive the requirement for Cargill Environmental Finance (Cargill) to performance test at two biogas-fueled generators under NSPS subpart JJJJ based on the test results of an identical (third) biogas-fueled generator at the Dry Creek Dairy in Hanson, Idaho?
A: Yes. EPA waives the Cargill performance test for the three generators that are located at the same facility, produced by the same manufacture, have the same model number, rated capacity, operating specifications, and are maintained in a similar manner. There is a substantial margin of compliance documented by the prior performance test results that were submitted.
Q: Will EPA waive the requirement of 40 CFR 60.8(d) to provide notification 30 days in advance of a performance test for recently installed biogas-fueled generators at Big Sky West in Gooding, Idaho due to winter weather conditions and the pending holidays?
A: Yes. EPA waives the requirement to provide notification 30 days in advance of a performance test pursuant to the provisions at 40 CFR 60.19(f)(3) to implement it early in December due to weather conditions and the pending Holidays. EPA requests that you provide the exact testing date, a copy of the full testing protocol, and the results of the test once completed to the regulatory agencies.
Q: Does EPA determine that Shell Offshore's incineration unit located on the Discoverer Drill vessel, operated in the Chukchi Sea is exempted from the requirements of 40 CFR part 60 subpart CCCC for Commercial and Industrial Solid Waste Incineration Units pursuant to the exemption provided in 40 CFR 60.2020(c)(2)?
A: Yes. Based on the information provided, EPA determines that Shell's incinerator qualifies for the exemption in 40 CFR 60.2020(c)(2) for units under a certain capacity that burn greater than 30 percent municipal solid waste or refuse-derived fuel, provided that Shell keeps the records required to demonstrate that it continues to qualify for the exemption on an ongoing basis.
Q: Does EPA determine that physical changes made to two boilers subject to NSPS subpart Dc owned and operated by Yakama Forest Products (YFP) at the Large Log Complex have de-rated the boilers' heat input capacity?
A: Yes. Based on the test data submitted following the physical changes of replacing the burners on each boiler, EPA determines that boilers No. 3 and 4 have been permanently de-rated to a heat input capacity below 30 MM BTU/hr. YFP must ensure that oil pressure at the burners meets the conditions of this determination to remain consistent with the conditions during the source test that was the basis for this determination.
Q: Will EPA approve Northwest Pipeline's request for an extension of the deadline to conduct a performance test required by 40 CFR 60.4340(a) in NSPS subpart KKKK for a turbine located at the Chehalis Compressor Station?
A: No. EPA determines that an applicable basis for waiving the testing requirement has not been identified. According to 40 CFR 60.4340(a), testing can be performed once every two years when emissions are less than 75 percent of the emission limit. Therefore, Northwest Pipeline must perform annual performance tests in accordance with § 60.4400.
Q: Will EPA approve an alternative monitoring procedure (AMP)for monitoring the amount of waste combusted in the Northstar incinerator to demonstrate that the incinerator qualifies for the co-fired combustor exemption under 40 CFR part 60 subpart Ec for Hospital Medical Infectious Waste (HMIW) Incinerators located at BP Exploration Alaska's (BPXA's) Northstar Development Facility in the Beaufort Sea?
A: No. EPA denies the AMP because use of the proposed method to weigh only the HMIW incinerated, instead of weighing both the HMIW and the non-HMIW, will not assure compliance with BPXA's claim that the incinerator meets the exemption for co-fired combustors under 40 CFR part 60 subpart Ec, as well as the exemption for “municipal waste combustion units” in 40 CFR 62.14525(c)(2).
Q: Does EPA determine that Andarko's incineration unit located at various drilling locations within the Gubik and Chandler Prospects in Alaska is exempted from the requirements of 40 CFR part 60 subpart CCCC pursuant to the provisions at 40 CFR 60.2020(c)(2)?
A: Yes. Based on the information provided, EPA determines that Andarko's incinerator qualifies for the exemption in 40 CFR 60.2020(c)(2) for units under a certain capacity that burn greater than 30 percent municipal solid waste or refuse-derived fuel. Andarko must keep the records required to demonstrate that it continues to qualify for the exemption on an ongoing basis.
Q: Is fuel sampling required for two turbines owned by Black Hills Corporation that monitor under NSPS subpart GG custom fuel monitoring schedules for semi-annual periods in which the turbines have not operated for the entire semi-annual period? The turbines are located at the Glenns Ferry Cogeneration Partners and Rupert Cogeneration Partners facilities in Idaho.
A: No. EPA determines that fuel sampling required by a custom fuel monitoring schedule is not required for semi-annual periods in which the turbine has not operated for the entire semi-annual period. Sampling must be done upon re-startup.
Q: Will EPA waive the requirement in 40 CFR 60.8(d) for Cargill to provide a notification 30 days in advance of a performance test for the recently installed biogas-fueled generators at Dry Creek Dairy in Hansen, Idaho?
A: Yes. EPA waives the requirement to provide notification 30 days in advance of a performance test pursuant to the provisions at 40 CFR 60.19(f)(3). The source identified a date on which testing would be conducted.
Q: Will EPA grant a waiver to Covanta Marion, Incorporated (CMI) in Brooks, Oregon, for the municipal waste combustor (MWC) unit load level limitations, under 40 CFR 60.53b(b)(2), for the two weeks preceding, and during the annual dioxin/furan and mercury performance tests for the purpose of evaluating system performance?
A: Yes. For the purpose of evaluating system performance, EPA waives the MWC load limit for the two week period preceding, and during the annual dioxin/furan and mercury performance test.
Q: Will EPA provide a waiver pursuant to 40 CFR 60.8(b)(4) from the initial and subsequent performance testing requirement under NSPS subpart KKKK for three identical Solar Saturn T-1301 turbines operating under the same conditions on the same platform in the Cook Inlet at XTO Energy's Kenai, Alaska facility?
A: Yes. EPA grants the request to expand the November 9, 2011 waiver to Solar Saturn T-1301 turbine, serial number SDR-105092 under the condition that a different turbine will be tested each year on a three year rotation. If any tests exceeds 50 percent of the NOx emission limits, all turbines will be required to conduct performance tests.
Q: Can EPA approve an Alternative Monitoring Plan (AMP) for Envent Corporation to conduct monitoring of hydrogen sulfide (H2S) emissions, in lieu of installing a continuous emission monitoring system when performing tank degassing and other similar operations controlled by portable, temporary thermal oxidizers, at refineries in Region 6 States that are subject to NSPS subparts J or Ja?
A: Yes. EPA conditionally approves the AMP based on the description of the process, the vent gas streams, the design of the vent gas controls, and the H2S monitoring data furnished. EPA specifies the proposed operating parameter limits and data which the refineries must furnish as part of the conditional approval. The approved AMP applies only to similar degassing operations conducted by ENVENT at refineries in EPA Region 6.
Q: Is the alternative monitoring plan (AMP) submitted to the Tennessee Department of Environment and Conservation (TDEC) for the distillation unit in Source B-99A-2 at the Eastman Chemical Company (Eastman) facility in Kingsport, Tennessee acceptable?
A: Yes. Based upon the information provided in the AMP by Eastman, EPA determines that the AMP is acceptable since the proposed monitoring parameters (water flow rate, propionic acid flow rate, and propionic acid inlet temperature) will provide adequate assurance of compliance. We agree that three of the parameters that the company would be required to monitor under NSPS subpart NNN (propionic acid specific gravity, water specific gravity, and water temperature) will not be useful indicators of absorber performance for the source in question. For ongoing compliance demonstration, EPA also provides guidance on how to define excess emissions in terms of the alternative monitoring parameters.
Q1: Does a silo or frame structure enclosing a railcar loading station at three separate Hi-Crush Proppant nonmetallic mineral processing plants located in Augusta, Independence, and Blair, Wisconsin meet the definition of a “building” under NSPS subpart OOO?
A1: Yes. Based on Hi-Crush's representation that the enclosed railcar loading stations are housed in structures with roofs, EPA concludes that these structures would meet the definition of “building” in NSPS subpart OOO.
Q2: Would the openings of those buildings be considered a “vent”?
A2: No. The building openings have no mechanically induced air flow for the purpose of exhausting from a building.
Q3: Since these railcar loading stations are contained in a building, would the applicable particulate matter standard only be that fugitive emissions from the building openings must not exceed 7 percent opacity?
A3: Yes. One emission limit option for an enclosed railcar loading station that is itself enclosed in a building is to restrict fugitive emissions from the building openings (except for vents as defined in 40 CFR 60.671) to 7 percent opacity, per section 60.672(e)(1).
Q: Does EPA approve a waiver from the 40 part 60 subpart Ec requirement to monitor the minimum pressure drop across a wet scrubber that control emissions of acid gases (
A: Yes. EPA approves the waiver request since the removal of acid gases is not dependent on the monitoring of wet scrubber minimum pressure drop and all other applicable monitoring parameters for the control system will be met. Monitoring of the other wet scrubber monitoring parameters identified in Table 3 of subpart Ec (
Q: May an Alternative Monitoring Plan (AMP) be conditionally approved for parametric monitoring in lieu of a continuous opacity monitoring system (COMS) for a Wet Gas Scrubber (WGS) on a Fluidized Catalytic Cracking Unit (FCCU) subject to NSPS subpart J, at the Phillips 66 Company Alliance Refinery in Belle Chasse, Louisiana?
A: Yes. Based on the information provided, EPA approves the AMP for the proposed operating parameters conditioned on the source conducting a performance test that demonstrates compliance and that establishes the operating parameter limits (OPLs) for the WGS. EPA approves the two proposed operating parameters, including the 1) minimum Liquid-to-Gas (L/G) Ratio on a 3-hour rolling average basis; and, 2) minimum slurry liquid circulation pump discharge pressure on a 3-hour rolling average basis. The OPLs are to be recalculated based on the average of three runs, provided the average PM emissions for the three runs meet the PM emissions limit of the rule in pounds per kilopounds of coke processed.
Q: Is Capitol One National Association required to petition the Administrator under 40 CFR 60.4211(e) for approval to exceed the 100 hour readiness testing limit for emergency generators testing for commissioning purposes under subpart IIII for internal compression engines during the initial onsite commissioning process of its Data Center in Chester, Virginia?
A: No. A petition is not necessary or appropriate. When a new greenfield source is under construction, subpart IIII allows emergency generators to be used as needed to complete the construction process, so long as Capitol One abides by the 100 hours limitation when the Data Center is in commercial operation.
Q: Portland General Electric Company (PGE) seeks verification that the emergency diesel-fired emergency generators at its Carver Readiness Center in Clackamas, Oregon, run for 50 of 100 hours total use to supply power,
A: 40 CFR 60.4211 and 63.6640 authorize limited non-emergency use of diesel engines that are classified and regulated as emergency engines. EPA determines that the language in 40 CFR 63.6640 of subpart ZZZZ regarding emergency engines dispatched under a financial arrangement with another entity was not intended to prohibit utilities from dispatching engines that they own and operate under the 50-hour non-emergency operation option provided.
Q: Does EPA approve revisions to the Alternative Monitoring Plan (AMP) for monitoring hydrogen sulfide (H2S) concentration and determining the total reduced sulfur (TRS) concentration in the sour gas routed to flares at the Lion Oil Company El Dorado (Lion Oil), Arkansas Refinery, which are subject to NSPS subpart Ja?
A: Yes. EPA conditionally approves Lion Oil's revised AMP, which supersedes previous approvals to expand use of the approved AMP for determining TRS under NSPS subpart Ja, and that includes additional operating parameters, clarifications on sampling locations, and test protocol specifications.
Q: Does EPA approve a revision to an Alternative Monitoring Plan (AMP) that has been conditionally approved for the wet gas scrubber (WGS) on a Fluidized Catalytic Cracking Unit (FCCU) at Marathon Petroleum's refinery in Texas City, Texas subject to NSPS Part 60 subpart J, be resubmitted for approval of a revision based on an additional operation mode at reduced charge rate?
A: Yes. EPA conditionally approves the revision to the EPA-approved AMP based on the additional information provided by Marathon to add an additional mode of operation. The condition for approval requires Marathon to conduct performance testing to demonstrate compliance and to establish the operating parameter limits (OPLs) for the WGS at the additional FCCU reduced charge rate, as established in the EPA response letter.
Q: Does EPA approve alternate semiannual reporting periods under section 60.5420(b) of NSPS subpart OOOO to run from April 1 through September 30, and from October 1 through March 31, at the Atlas Pipeline Driver Gas Plant in Midland, Texas?
A: Yes. EPA approves the proposed alternate reporting schedule to align the periodic reporting time period requirements of NSPS subpart 0000 since it does not extend the reporting period that would be covered by the next semiannual report, as allowed under section 60.5420(b). The alternate reporting schedule does not extend the reporting period that would be covered by the next semiannual.
Q1: Are the five City of Rock Island Public Works Department 880 HP spark ignition natural gas fired engines (plus one offline spare) at their wastewater treatment plant in Wisconsin considered emergency engines under NSPS subpart JJJJ?
A1: No. Since the engines would be operated approximately 16 times per year for 270 hours, EPA determines that the engines do not meet the definition of emergency stationary internal combustion engines. Therefore, the engines are subject to subpart JJJJ.
Q2: Can a waiver from performance testing be granted for the engines?
A2: No. EPA cannot grant a waiver of performance testing for these engines, but due to the potential difficulties in testing, EPA encourages the City to request alternative testing if necessary.
Q: May EPA approve an alternative to stack testing under NSPS subpart JJJJ for nine identical non-certified Riverview bio-gas fueled generators located on three farms (Riverview Dairy, West River Dairy, and District 45 Dairy) in Minnesota?
A: No. EPA does not approve any of the five alternative options proposed by Riverview for its generators, which included: (1) exemption from ongoing testing for engines that meet the standard, (2) retroactive certification by the manufacturer, (3) self-certification through testing, (4) provide certification to manufacturers that have met the standards, and (5) test one engine and apply results to all nine. However, EPA does provide two alternatives, Modified Option 1A and 1B that could be used to demonstrate compliance. Modified Option 1A is annual testing for NO, NO
Q: May an alternative test method be approved for Hawaiian Electric Company's four new compression ignition engines subject to NSPS subpart IIII at the Honolulu International Airport in Oahu that were certified on diesel but will be operated on biodiesel?
A: Yes. EPA determines that operation of the engines on biodiesel would not void the certification if all of the following conditions are met: the biodiesel meets the requirements of 40 CFR 60.4207(b), the manufacturer's warranty includes the use of the biodiesel, and the biodiesel meets ASTM D6751. The engines must also be installed, configured, operated and maintained per the manufacturer's instructions.
Q: Does EPA approve an Alternative Monitoring Plan (AMP) for Evergreen Industrial Services (EIS) to conduct monitoring of hydrogen sulfide (H2S) emissions in lieu of installing a continuous emission monitoring system (CEMS), to monitor emissions controlled by portable and temporary thermal oxidizers units (TOUs) during tank degassing and other similar operations at refineries in Region 6 that are subject to NSPS subparts J or Ja?
A: Yes. Based on the description of the process, the vent gas streams, the design of the vent gas controls, and the H2S monitoring data furnished, EPA conditionally approves the AMP when EIA is conducting degassing operations at refineries in Region 6 since it is impractical to use a H2S CEMS in a portable TOUs. The EPA response letter list the operating conditions for degassing operations and data which the refineries must furnish to EIS as part of the conditional approval.
Q: May Derenzo & Associates in Livonia, Michigan use a TECO Model 55C analyzer in lieu of Method 18 that will be used with Method 25A to determine nonmethane organic compounds emitted from an internal combustion engine subject to NSPS subpart JJJJ?
A: Yes. EPA approves the request to use TECO Model 55C as an alternative to Method 18 for measuring methane since it should produce results similar to the “cutter” analyzers already allowed by the regulation.
Q: Does EPA approve the use by TRC Companies located in Lowell, Massachusetts of a TECO Model 55C analyzer to measure non-methane organic compounds (NMOC) from engines subject to NSPS subpart JJJJ?
A: Yes. EPA approve TRC Companies request for use of the TECO Model 55C analyzer in lieu of Method 18 to measure NMOC from subpart JJJJ engines, and the analyzer may be used by other engines subject to NSPS subpart JJJJ. EPA will announce this as broadly applicable to all stationary spark ignition combustion engines on our Web site at
Q1: Does EPA conditionally approve a revision to a previously approved Alternative Monitoring Plan (AMP) to allow for an automatic sampling system, and an associated flow meter for collecting and recording hydrogen sulfide (H2S) content, to be included for the West Operations Ground Flare (Multi Jet Flare), which is part of a Flare Gas Recovery System (FGRS) subject to NSPS subpart Ja, at the Motiva Enterprises Norco Refinery in Norco, Louisiana?
A1: Yes. EPA conditionally approves the AMP revision based on how the automatic sampling system functions regarding the configuration and operation of the FGRS. The H
Q2: What recordkeeping and report requirements are included in the conditional approval?
A2: Motiva shall maintain the H
Q: May Derenzo & Associates in Livonia, Michigan use the TECO Model 55I analyzer (which is a newer version of the previously approved Model 55C) in lieu of Method 18 and Method 25A to determine non-methane organic compounds (NMOC) emitted from RICE subject to NSPS subpart JJJJ or NESHAP subpart ZZZZ?
A: Yes. EPA approves the alternative testing request for NSPS subpart JJJJ, provided that the facility follows all applicable requirements in Method 25A for sample heating, appropriate test procedures, calibration and standardization. Since NESHAP subpart ZZZZ does not require the measurement of NMOC that part of the request is not considered.
Q: Can EPA confirm the proposed deadline for completing the initial performance test under 40 CFR part 60 subpart Ec for the University of Texas Medical Branch's medical infectious waste incinerator in Galveston, Texas?
A: Yes. EPA confirms that the initial compliance performance test should be completed within 60 days of achieving maximum production rate, and not later than 180 days after initial startup as required under section 60.8 of the General Provisions.
Q: Does the use of the Pre-Construction Survey, as described in ASTM E2356-14 “Standard Practice for Comprehensive Building Asbestos Surveys,” demonstrate compliance with the “thorough inspection” requirement at 40 CFR 61.145(a)?
A: Yes. If an owner/operator follows the steps described in Sections 1 through 5 and Section 8 in ASTM E2356-14 “Standard Practice for Comprehensive Building Asbestos Surveys”, it would provide a thorough inspection of the facility. However, EPA would not accept the Limited Asbestos Screen (
Q: Do regulations related to ozone depleting substances under 40 CFR part 82 prohibit the use of Leak Stop to repair leaks in residential air conditioning systems that contain chlorofluorocarbons?
A: No. The use of aerosol chemical products such as Leak Stop are not prohibited as long as there is no “knowing venting” or “knowing release” of an ozone depleting substance taking place. We do not currently have any information about the propellant used by the Leak Stop product. However, if it is propelled by a Class I or II ozone depleting substance, then it is banned under the non-essential products exclusion found at 40 CFR 82.60.
Q: Will EPA approve a waiver of the initial performance test according to the provisions of 40 CFR 60.8(b)(4) and 63.7(h) for a new chemset chamber subject to the NESHAP for Lead Acid Battery Manufacturing, 40 CFR part 63 subpart PPPPPP, and the NSPS for Lead Acid Battery Manufacturing, 40 CFR part 60 subpart KK, at the Johnson Controls Battery Group Inc.'s (JCBGI”s) facility in Canby, Oregon?
A: No. EPA is denying the requested waiver because the new unit is not identical to the previously installed units and could have a different capacity. While emissions are expected to be low, the initial performance test is valuable to verify the installations of new equipment.
Q: Will EPA approve a National Security Exemption (NSE)for the Department of Defense to waive the performance testing requirements for twelve stationary diesel fired engines constructed between 2003 and 2009, all of which are subject to the National Emissions Standard for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines (RICE) at 40 CFR part 63, subpart ZZZZ, while five engines are also subject to the New Source Performance Standard for Compression Ignition RICE at 40 CFR part 60, subpart IIII, which are located at Fort Greely, Alaska?
A: No. An NSE exemption is not necessary because 40 CFR part 63 subpart ZZZZ does not require performance testing for emergency engines; according, an exemption from performance testing is not necessary for these twelve engines if they meet the definition of “emergency stationary RICE” under subpart XXXX. In addition,
Q: Does EPA determine that the operation of an emergency generator owned and operated by the Union Pacific Railroad's rail yard facility in Lane County, Oregon is classified as a stationary source under NESHAP subpart ZZZZ?
A: No. EPA determines that the engine used to provide power restoration for emergencies at railroad tunnels in Oregon is a portable diesel generator. Because the engine has not provided power, or operated for emergency use, or any other purpose other than testing at the location where it has been stored for more than 12 months, it does not meet the definition of stationary engine for that location under subpart ZZZZ.
Q1: Does EPA determine that 40 CFR part 63 subpart HHHHHH, National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources, apply to the process of spray applying vehicle undercoating?
A1: Yes. EPA determines the process of spray applying vehicle undercoating is subject to NESHAP subpart HHHHHH. The undercoating would be considered a coating under the NESHAP definitions and would not be a sealant. It is generally spray-applied using a hand-held device that creates an atomized mist of coating and deposits the coating on a sub straight, just as are other automotive coatings.
Q2: Does EPA determine that the exemption for facilities that do not spray-apply target HAP-containing coatings is available to part of a facility?
A2: No. EPA determines that a facility that is not exempt must satisfy the rule requirements for all of their spray-applied coating operations. If the facility spray-applies no target HAP, then it may request exemption from the rule.
Q: Will EPA approve an alternative to the visible emissions monitoring requirement of 40 CFR 63.11423(b) of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Lead Acid Battery Manufacturing Area Sources, subpart PPPPPP, for Johnson Controls Battery Group Incorporated's facility in Canby, Oregon to shut down equipment per permit conditions if any visible emissions are observed rather than continuing to operate and conduct a Method 9 test?
A: Yes. EPA approves this minor change in monitoring methodology pursuant to 40 CFR 63.8(b)(i) because it will be more stringent than that which is required according to 40 CFR 63.11423(b) by the NESHAP standard.
Q: Does 40 CFR part 63 subpart MMMMMM for Area Source Carbon Black Production apply to Reklaim Technologies' tire reclamation facility at the Port of Morrow near Boardman, Oregon?
A: No. Based on the information provided by Reklaim, EPA determines that the process at Reklaim's facility is materially different from the “carbon black production” process that is subject to subpart MMMMMM. The process involves heating shredded tires in an oxygen starved environment to recover carbon black, oil and steel from the tires. As such the process does not fall within the definition of “carbon black production” and is not subject to subpart MMMMMM.
Q: The Olympic Region Clean Air Agency (ORCAA) in Port Angeles, Washington asked if 40 CFR part 63 subpart HHHHHH for Paint Stripping and Miscellaneous Surface Coating Operations apply to the process of spray-applied truck bed lining.
A: EPA determines that operations that spray-apply coatings to truck bed liners, including color coatings, are subject to subpart HHHHHH, based on the definitions of coatings and spray-applied coating operations in 40 CFR 63.11180. Although the definition of “truck bed liner coating” does exclude color coats, that definition is not referred in 40 CFR 63.11170, the applicability section for subpart HHHHHH. The lining operation is generally spray-applied using a hand-held device that creates an atomized mist of coating and deposits the coating on a substrate, just as are other automotive coatings.
Q: Does EPA approve Holcim's particulate matter (PM) alternative continuous parameter monitoring system (CPMS) plan for the common stack venting exhaust emissions from different sources at their Portland cement plant in Florence, Colorado, subject to the National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry, subpart LLL?
A: Yes. Pursuant to 40 CFR 63.8(f)(2) and 63.1350(o)(4), EPA conditionally approves the use of one PM CPMS on the common stack whereby a site-specific operating limit is established that corresponds to the results of performance testing demonstrating compliance with the kiln and clinker cooler emission limits. The conditions for approval are specified in the EPA response letter.
Q: Does EPA approve an alternative monitoring plan that uses a longer averaging time for inlet flow monitoring as a surrogate parameter for monitoring methanol destruction in the Aeration Stabilization Basin (ASB) subject to the National Emission Standards for Hazardous Air Pollutants (NESHAP) from the Pulp and Paper Industry, subpart S, at the Clearwater Paper Corporation, Cypress Bend Mill located in McGehee, Arkansas?
A: Yes. Based on the monitoring data provided by the company and performance test results, EPA approves the AMP request. EPA agrees that a daily flow is not representative of the actual hydraulic retention time in the ASB, whereas a nine-day rolling average inlet flow established per 40 CFR 63.453(n)(4) provides an actual representation of the treatment system retention time.
Q: Does EPA approve an alternative monitoring request to conduct monthly pressure differential measurements across the catalyst at load conditions within plus or minus 10 percent of the baseline load established during the initial engine performance tests outlined in QEP Field Services Company's (QEP) Consent Decree, rather than the plus or minus 10 percent of 100 percent load as required in 40 CFR part 63 subpart ZZZZ for Stationary Reciprocating Internal Combustion Engines located at Chapita, Coyote Wash, Island and Wonsits Valley Compressor Stations?
A: Yes. EPA conditionally approves the AMP request pursuant to § 63.8(t)(2) based on the performance testing negotiated as part of the QEP Consent Decree. EPA believes that it is technically appropriate to conduct the monthly pressure drop readings at plus or minus 10 percent of the load at an affected facility engine when the initial performance test that was conducted is showing compliance with the MACT ZZZZ. The conditions for approval are described in the EPA response letter.
Q: Do NSPS subpart IIII and NESHAP subpart ZZZZ apply to the engine of a mobile power generator in Springdale, Arkansas that is designed to supply electrical power on a temporary basis, at various locations within the Kawneer Springdale Plant, and does not remain at any location greater than 12 months?
A: No. EPA determines that NSPS subpart IIII and NESHAP subpart ZZZZ do not apply since this engine is considered a nonroad mobile source. The mobile generator is a wheeled unit and its engine meets the criteria for a nonroad engine that it be by itself or in or on a piece of equipment that is portable or transportable. Furthermore, it will not remain in a single location for longer than 12 consecutive months.
Q1: Is the stationary gas compression reciprocating internal combustion engine (RICE) at the Dimension Energy Company Coquille Bay, Louisiana facility a remote affected source under 40 CFR part 63 subpart ZZZZ?
A1: Yes. After reviewing the description of the RICE and its operations, EPA determines that it is an existing area source which meets the definition of a remote stationary RICE under 40 CFR 63.6675.
Q2: What are the continuing compliance requirements for a remote stationary RICE?
A2: The operator must: Perform prescribed preventative maintenance at certain intervals; maintain the RICE according to the manufacturer's instructions; minimize startup time or develop a maintenance plan using good air pollution prevention practices; and, maintain records to demonstrate that applicable requirements have been completed.
Q: Does EPA agree that the Callidus Closed Loop Gasification System (CCLGS) at the Del-Tin Fiber plant in El Dorado, Arkansas is exempt from the Boiler MACT, subpart DDDDD under the exemption at 40 CFR 63.7491(h) because it is subject to and complying with the Plywood MACT, subpart DDDD?
A: No. The EPA determines that both the Boiler MACT and the Plywood MACT apply to specific components of the CCLGS based on a review of the design and operation information available for the Del-Tin Fiber facility, so the exemption at 40 CFR 63.7491(h) does not apply. The rotary gasifiers and secondary combustion chamber (SCC) are considered affected sources, specifically defined as “process heaters” under the Boiler MACT when combustion gases are not used to directly heat process material. The portion of combustion gases that directly flow through the dryer units are considered affected sources under the Plywood MACT (§ 63.2232(b) and § 63.2292) and are thereby exempted from the Boiler MACT requirements (§ 63.7491(1)). However, any combustion gases from the rotary gasifiers and the SCC that bypass the dryer units and are used for indirect heat transfer to process material or to heat transfer material for use in a process unit are subject to the Boiler MACT (§ 63.7575).
Q: Does EPA agree to accept data from a prior performance test in lieu of a new performance test to demonstrate initial compliance with 40 CFR part 63 subpart ZZZZ for six natural gas fueled spark plug ignition engines at the ExxonMobil Chemical facility in Baton Rouge, Louisiana?
A: Yes. EPA accepts a previous performance testing for six engines conducted in lieu of implementing an initial test. The testing was done using the same methods specified in subpart ZZZZ, and was conducted within two years of the performance test deadline. Additionally, the equipment was not modified following the April 2012 testing.
Q: Does EPA agree that the RockTenn Hodge Mill Boiler in Hodge, Louisiana is a biomass hybrid suspension grate boiler under 40 CFR part 63 subpart DDDDD?
A: Yes. EPA agrees that the boiler is subject to NESHAP subpart DDDDD since the description provided meets the definition of a hybrid suspension grate boiler found in the rule. Since natural gas and tire derived fuel (TDF) are also used, the facility must keep records to demonstrate the annual average moisture content is at or above 40 percent. The facility must use natural gas for startup, shutdown, and flame stabilization, and use TDF when excessively firing wet biomass fuel.
Q: Are three Electric Utility Generating Units (EUGUs) located at the Lafayette Utilities System (LUS) Doc Bonin Electric Generating Station in Lafayette, Louisiana considered to be affected sources with gas-fired boilers that are not subject to Boiler Area Source MACT, subpart JJJJJJ?
A: EPA determines that the boilers are not affected sources subject to the Boiler Area Source MACT if all conditions at 40 CFR 63.11237 are met. Gas-fired boilers are excluded from subpart JJJJJJ per 40 CFR 63.11195(e). A permit limitation is necessary to verify applicability requirements are met for each EUGU for burning fuel oil only during natural gas curtailment, and to not exceed testing hours with fuel oil during any calendar year.
Q1: Does EPA approve an Alternative Monitoring Plan (AMP) for three Reciprocating Internal Combustion Engines (RICE) subject to NESHAP subpart ZZZZ at the Occidental Permian Terrill Gas Treating Facility for testing at less than 100 percent maximum load?
A1: Yes. EPA approves Occidental Permian proposed AMP for a lower engine load be set as a maximum load for compliance demonstration. Specifically, we approve performance testing at the alternate lower maximum engine load with monitoring required at plus or minus 10 percent. The three RICE cannot operate at 100 percent load due to site-specific operations at the facility, and therefore cannot be tested at 100 percent plus or minus 10 percent operational capacity, as specified at 40 CFR 63.6620(b)(2). If operations change such that the maximum load of the engines exceeds the alternative lower maximum load, the AMP approval will be terminated, and retesting will be required to demonstrate compliance with NESHAP subpart ZZZZ at the higher engine load.
Q: Does EPA agree that the backup power generator at the Freddie MAC facility in Carrollton, Texas is classified as an existing commercial emergency stationary Reciprocating Internal Combustion Engine (RICE) that is not subject to 40 CFR part 63 subpart ZZZZ?
A: Yes. EPA determines that the Freddie MAC facility is an area source with a commercial NAICS code, and the backup power generator meets the exemption provided at 40 CFR 63.6585(f)(2) applicable to emergency stationary RICE operated at an area source. This RICE, used solely for backup power generation, have not exceeded 50 hours for any activities during any one year period within the past two year period.
Q: Will EPA provide a waiver to CertainTeed Corporation of the 60-day requirement under 40 CFR 63.9(c) to notify EPA in advance of the initial
A: Yes. EPA is granting a waiver of the 60-day requirement for a notification prior to the initial performance test pursuant to 40 CFR 63.9(i) of the 40 CFR 63.9(c) requirement to enable testing during facility's highest volume period with the maximum ambient temperature, which is will occur in less than 60 days. This would enable the estimation of what the emissions are during a worst case scenario to test the limits of our system.
Q: Does 40 CFR part 61 subpart N apply to the Bullseye Glass Company's manufacture of colored art glass in its Portland, Oregon facility?
A: Yes. NESHAP subpart N applies to the company's manufacture of colored art glass. According to 40 CFR 61.160(a), 40 CFR part 61 subpart N does not apply to pot furnaces but rather to each glass melting furnace that uses commercial arsenic as a raw material. However, based on information provided by Bullseye Glass including descriptions, photos and diagrams, EPA determines that the vessels used by Bullseye do not meet the definition of pot furnaces because they are not sealed off from the furnace atmosphere so that there is potential for emissions to escape with the furnace exhaust.
Q: Are boilers/engines/marine equipment on a liquefied natural gas carrier (LNGC) at the proposed Aguirre Gasport located approximately 3 miles offshore of the Puerto Rico Electric Power Authority subject to NSPS and NESHAP standards when the LNGC will be converted into a Floating Storage and Regasification Unit (FSRU) to be permanently moored at the GasPort?
A: Yes. Based on the information provided, EPA determines that the FSRU is a stationary source because it utilizes boilers as the main propulsion devices instead of reciprocating internal combustion engines (RICE) and it will be permanently moored, except when there is a need to take the unit to safer water due to and special circumstances. Therefore, the affected equipment on the FSRU, except for non-reciprocating internal combustion engine (RICE), is subject to NSPS and NESHAP standards. All non-reciprocating RICE equipment on the FSRU is not a stationary sources because it falls under the definition of nonroad engines as they will be used on self-propelled equipment. Therefore, the NSPS and NESHAP do not apply to the nonroad RICE. However, the nonroad RICE must comply with the applicable nonroad engine standards in 40 CFR parts 89, 94, 1039, 1042, 1043, 1045, 1048, 1054, 1065, and 1068, if applicable. Specific questions on the requirements and applicability of a particular NSPS and NESHAP rules can be discussed separately on a case-by-case basis as the need arises.
Q: Are the 39 emergency stationary reciprocating internal combustion engines (RICE) at Los Alamos National Laboratory (LANL) area source facility subject to RICE NESHAP requirements?
A: No. EPA determines that the 39 emergency RICE at LANL are not subject to the RICE NESHAP because they are located at an area source that is classified as an “institutional” facility. The RICE rule excludes existing stationary emergency engines located at residential, commercial, or institutional facilities that are area sources of HAP. Note that the engines must meet the definition of “Emergency stationary RICE” in 40 CFR 63.6675.
Q: Northern Natural Gas based in Omaha, Nebraska asked that, under 40 CFR 63.6625(h), part 63 NESHAP subpart ZZZZ for spark ignition reciprocating internal combustion engines (RICE) regarding minimizing engine idle time, if an engine does not complete start up within the thirty minute time limit, are there any restrictions on initiating another startup of the engine and/or the time frame to complete the subsequent startup?
A: No. An engine does not need to be shut off if it does not complete startup within thirty minutes. However, any further activity after thirty minutes is considered part of normal operation. Multiple startups should be counted as separate events with a thirty minute time limit per event. If startups occur consecutively with short durations in between, they could be considered as one startup since startups are part of a single occasion where the engine is working up to normal operations.
Q1: May emergency Reciprocating Internal Combustion Engines (RICE) that currently do not qualify for the exclusion in 40 CFR 63.6585(f)(2) because they are contractually obligated to be available for more than 15 hours for the purposes specified at 40 CFR 63.6640(f)(2)(ii) and (iii) and (f)(4)(ii), later qualify for exclusion once those contracts expire, provided that the other conditions of 40 CFR 63.6585(f)(2) are met?
A1: If an emergency stationary RICE does not meet the conditions for the exclusion in 40 CFR 63.6585(f)(2) as of the compliance date, then it is subject to subpart ZZZZ at the date of compliance. However, if the engine's status subsequently changes to meet the conditions of 40 CFR 63.6585(f)(2) after the compliance date, the engine would no longer be subject to subpart ZZZZ.
Q2: Can emergency RICE located at area sources continue to participate in peak shaving programs for up to 50 hours per year until May 3, 2014 without losing their emergency engine status?
A2: An emergency stationary RICE located at an area source of HAP emissions can be used for peak shaving for up to 50 hours per year until May 3, 2014 if the engine is operated as part of a peak shaving (load management program) with the local distribution system operator and the power is provided only to the facility itself or to support the local distribution system. This is the case whether or not the engine will be retrofitted to comply with the subpart ZZZZ standards for non-emergency engines.
Q3: Do 40 CFR 63.6640(f)(4)(i) and (ii) address separate and distinct non-emergency situations, and does the “local reliability” exception set forth in 40 CFR 63.6640(f)(4)(ii) have no sunset provision?
A3: Yes. 40 CFR 63.6640(f)(4)(i) and (ii) are separate and distinct situations and there is no sunset provision for the operation specified in § 63.6640(f)(4)(ii). An emergency stationary RICE at an area source of HAP emissions can continue to operate for up to 50 hours per calendar year for the purpose specified in § 63.6640(f)(4)(ii) beyond May 3, 2014.
Q4: How does EPA interpret 40 CFR 63.6640(f)(4)(ii)(A), which requires that to qualify for the 50 hour exemption, the emergency RICE must be dispatched by the local balancing or local transmission and distribution system operator?
A4: If the local transmission and distribution system operator informs the facility that they will be cutting their power, which, in turn, causes the facility to engage its emergency stationary RICE, the engine would be considered dispatched by the local transmission and distribution system operator.
Q1: What date is used under NESHAP subpart ZZZZ to determine if engines located at Allison Transmission Indianapolis facility in Indiana, are “existing” or “new”?
A1: The rule uses the date that the engine commenced construction to determine if the engine is existing or new. The General Provisions to 40 CFR part 63 define both “construction” and “commenced” and those definitions are applied to the subpart.
Q2: Does NESHAP subpart ZZZZ apply to an engine that has been rebuilt, specifically where the engine core is reused, but components such as pistons, rings and bearings are reconditioned or replaced?
A2: A rebuilt engine would need to be evaluated to determine if reconstruction had occurred. The General Provisions to part 63 defines “reconstruction.”
Q: Are the emergency engines located at the NASA Langley Research Facility in Hampton, VA subject to NESHAP subpart ZZZZ for Reciprocating Internal Combustion Engines?
A: No. EPA determines that the emergency engines are located at a facility that is an area source and classified as an “institutional” facility. Therefore, under 40 CFR 63.6590(b)(3), emergency engines at the facility are exempt from requirements under NESHAP subpart ZZZZ.
Q: Does EPA accept the industry coalition request to rescind a November 21, 2007, letter to the National Grain and Feed Association in which EPA stated that temporary storage facilities meet the definition of “permanent storage capacity” under 40 CFR part 60, subpart DD, NSPS for Grain Elevators (Subpart DD), and required it be included when determining applicability of Subpart DD for a particular facility?
A: Yes. The EPA is proposing revisions to Subpart DD and has also decided to re-evaluate the rationale for the November 21, 2007 letter. While the definition of “permanent storage capacity” in Subpart DD is broad, we are now aware that temporary storage facilities (TSFs) generally handle the grain less time throughout the year than other types of permanent storage facilities and may require different treatment. Also, while not dispositive as to the applicability of the rule to these units, we note that TSFs did not exist during the development of Subpart DD, and their processes and handling techniques were not specifically considered during the rulemaking process. For these reasons, EPA rescinds the November 21, 2007 letter. As a result, TSFs do not meet the definition of “permanent storage capacity” under Subpart DD and should not be included when determining applicability under Subpart DD for a particular facility.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 31, 2016.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Under this information collection, the Commission will collect information that will be used to determine whether an applicant is legally qualified to participate in a reverse incentive auction. To aid in collecting this information, the Commission has created FCC Form 177, which the public will use to participate in reverse incentive auctions, including the Commission's upcoming broadcast incentive reverse auction. The Commission's auction rules and related requirements are designed to ensure that the competitive bidding process is limited to serious qualified applicants, deter possible abuse of the bidding and licensing process, and enhance the use of competitive bidding to assign Commission licenses and permits in furtherance of the public interest. The information collected on FCC Form 177 will be used by the Commission to determine if an applicant is legally qualified to participate in the reverse auction. Commission staff will review the information collected on FCC Form 177 as part of the pre-auction process, prior to the start of the reverse auction. Staff will determine whether each applicant satisfies the Commission's requirements to participate in the reverse auction. Without the information collected on FCC Form 177, the Commission will not be able to determine if an applicant is legally qualified to participate in the reverse auction and has complied with the various applicable regulatory and statutory auction requirements for such participation.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 31, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 31, 2016.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The Commission is revising the currently approved information collection on FCC Form 175 to implement new collection requirements that are the result of (1) various Commission actions in which the Commission adopted general rules and procedures to govern the BIA, including rules applicable to applicants seeking to participate in the forward auction component of the BIA and, (2) the Commission's adoption of new and modified competitive bidding rules and requirements in the
The Commission's auction rules and related requirements are designed to ensure that the competitive bidding process is limited to serious qualified applicants, deter possible abuse of the bidding and licensing process, and enhance the use of competitive bidding to assign Commission licenses in furtherance of the public interest. The information collected on FCC Form 175 is used by the Commission to determine if an applicant is legally, technically, and financially qualified to participate in a Commission auction. Additionally, if an applicant applies for status as a particular type of auction participant pursuant to Commission rules, the Commission uses information collected on FCC Form 175 to determine whether the applicant is eligible for the status requested. Commission staff reviews the information collected on FCC Form 175 for a particular auction as part of the pre-auction process, prior to the auction being held. Staff determines whether each applicant satisfies the
The Commission plans to continue to use the FCC Form 175 for all upcoming, non-reverse spectrum auctions, including those required or authorized to be conducted pursuant to the Spectrum Act, collecting only the information necessary for each particular auction.
The Commission is revising the currently approved information collection to implement new collection requirements resulting from the Commission's adoption of new and modified rules prohibiting certain communications for full power and Class A television broadcast licensees and for applicants seeking to participate in the forward auction component of the BIA and requiring such covered parties to file a report with the Commission within a specified period of time if they make or receive a prohibited communication. Subject to certain exceptions, section 1.2205(b) of the Commission's rules provides that, beginning on the deadline for submitting applications to participate in the reverse auction and until the results of the incentive auction are announced by public notice, all full power and Class A broadcast television licensees are prohibited from communicating directly or indirectly any incentive auction applicant's bids or bidding strategies to any other full power or Class A broadcast television licensee or to any forward auction applicant. Section 1.2205(c) requires any party that makes or receives a prohibited communication to report such communication in writing to the Commission immediately, and in no case later than five business days after the communication occurs. Section 1.2205(d) provides the procedures for filing any reports required under section 1.2205(c). Subject to certain exceptions, forward auction applicants in the BIA are subject to a BIA-specific provision in section 1.2105(c) of the Commission's rules (in addition to the Commission's existing prohibited communications rule applicable to applicants in traditional Commission auctions), which provides that, beginning on the deadline for submitting applications to participate in the forward auction and until the results of the incentive auction have been announced by public notice, all forward auction applicants are prohibited from communicating directly or indirectly any incentive auction applicant's bids or bidding strategies to any full power or Class A broadcast television licensee. Section 1.2105(c) requires forward applicants that make or receive a prohibited communications that is prohibited under section 1.2105(c) to file a report of such a communication with the Commission.
The Commission's rules prohibiting certain communications in Commission auctions are designed to reinforce existing antitrust laws, facilitate detection of collusive conduct, and deter anticompetitive behavior, without being so strict as to discourage pro-competitive arrangements between auction participants. They also help assure participants that the auction process will be fair and objective, and not subject to collusion. The information collected through the Commission's existing reporting requirement under section 1.2105(c) allows the Commission to enforce the prohibition on forward auction applicants by making clear the responsibility of parties who receive information that potentially violates the rules to promptly report to the Commission, thereby enhancing the competitiveness and fairness of its spectrum auctions. The revised information collection under the BIA-specific rule in section 1.2105(c) and in sections 1.2205(c) and 1.2205(d) will
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 31, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
(1) Utilization/Forecast Report;
(2) Application for initial numbering resource;
(3) Application for growth numbering resources;
(4) Recordkeeping requirement;
(5) Notifications by state commissions;
(6) Demonstration to state commission; and
(7) Petitions for additional delegation of numbering authority.
The data from this information collection is used by the FCC, state regulatory commissions, and the NANPA to monitor numbering resource utilization by all carriers using the resource and to project the dates of area code and NANP exhaust.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 31, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
On August 11, 2015 the Federal Communications Commission released a Report and Order,
On June 12, 2000, the Commission released a Report and Order, ET Docket No. 99-255, FCC 00-211, which allocated spectrum and established rules for a “Wireless Medical Telemetry Service” (WMTS) that allows potentially life-critical equipment to operate in an interference-protected basis. Medical telemetry equipment is used in hospitals and health care facilities to transmit patient measurement data such as pulse and respiration rate to a nearby receiver, permitting greater patient mobility and increased comfort. The Commission designated a frequency coordinator, who maintains a database of all WMTS equipment. All parties using equipment in the WMTS are required to coordinate/register their operating frequency and other relevant technical operating parameters with the designated coordinator. The database provides a record of the frequencies used by each facility or device to assist parties in selecting frequencies to avoid interference. Without a database, there would be no record of WMTS usage because WMTS transmitters will not be individually licensed. The designated frequency coordinator has the responsibility to maintain an accurate engineering database of all WMTS transmitters, identified by location (coordinates, street address, and building), operating frequency, emission type and output power, frequency range(s) used, modulation scheme used, effective radiated power, number of transmitters in use at the health care facility at the time of registration, legal name of the authorized health care provider, and point of contact for authorized health care provider. The frequency coordinator will make the database available to WMTS users, equipment manufacturers and the public. The coordinator will also notify users of potential frequency conflicts. In addition, in order to receive interference protection, parties operating WMTS networks on channel 37 shall notify one of the white space database administrators of their operating location pursuant to §§ 15.713(j)(11) and 15.715(p) of that chapter.
Federal Deposit Insurance Corporation.
Notice of open meeting.
In accordance with the Federal Advisory Committee Act, Pub. L. 92-463 (Oct. 6, 1972), 5 U.S.C. App. 2, notice is hereby given of a meeting of the FDIC Systemic Resolution Advisory Committee (the “SR Advisory Committee”), which will be held in Washington, DC. The SR Advisory Committee will provide advice and recommendations on a broad range of issues regarding the resolution of systemically important financial companies pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203 (July 21, 2010), 12 U.S.C. 5301
Thursday, April 14, 2016, from 9:00 a.m. to 3:00 p.m.
The meeting will be held in the FDIC Board Room on the sixth floor of the FDIC Building located at 550 17th Street NW., Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898-7043.
The agenda will include a discussion of a range of issues and developments related to the resolution of systemically important financial companies pursuant to the Dodd-Frank Act. The agenda may be subject to change. Any changes to the
The meeting will be open to the public, limited only by the space available, on a first-come, first-served basis. For security reasons, members of the public will be subject to security screening procedures and must present valid photo identification to enter the building. The FDIC will provide attendees with auxiliary aids (
Jill M. Alban, Grant M. Alban, Mary Arnold, Al Baker, Katrina Bonar, Emmett R. Brophy, Steven Bruzonsky, Monica Bushey, Craig Buske, Doda “Danny” Camaj, Stephanie B. Crosby, Melinda Deneau, Jennifer Dillon, Jeffrey L. Gannon, Pamela Goessling,Thomas Goessling, Sean Gurney, Sheryl Haley, Lesley Denise Hart, Bruce Hertz, Elizabeth Ashley Hill Nèe Edwards, Maria Kooken, Adair Lara, Christine Laster, Kori Lehrkamp, Michael Lehrkamp, John Leyva, Joan Macquarrie, Daniel Morris, Tony Nikprelaj, Gustavo Adolfo Perez, Judy A. Reiber, Roberta Rothstein, Jeffrey Rubinstein, Alexandra Scott, Jason Smith, Catherine Taylor, Richard Tomasko, and Demian Vargas,
Nippon Yusen Kabushiki Kaisha, Nyk Line (North America) Inc., Mitsui O.S.K. Lines, Ltd., Mitsui O.S.K. Bulk Shipping (USA), Inc., World Logistics Service (USA) Inc., Höegh Autoliners AS, Höegh Autoliners, Inc., Nissan Motor Car Carriers Co. Ltd., Kawasaki Kisen Kaisha, Ltd., “K” Line America, Inc., Wallenius Wilhelmsen Logistics AS, Wallenius Wilhelmsen Logistics Americas LLC, EUKOR Car Carriers Inc., Compañía Sud Americana De Vaporess.A., and CSAV Agency North America, LLC
Notice is given that a Complaint has been filed with the Federal Maritime Commission (Commission) by the above named Complainants, on behalf of themselves and all others similarly situated, hereinafter “Complainants,” against the above named providers of “Vehicle Carrier Services” and unnamed co-conspirators, hereinafter “Respondents.” The Complaint is brought as a proposed class action. Complainants “seek to represent all persons and entities in the United States who purchased or leased a new, assembled motor vehicle for personal use and not for resale, incorporating a Vehicle Carrier Service charge charged by any Respondent or any current or former subsidiary or affiliate thereof, or any co-conspirator, from and including January 1, 2000. . . .” Complainants allege that Respondents “transport large numbers of cars, trucks, and other automotive vehicles including agriculture and construction equipment . . . across large bodies of water using specialized cargo ships known as Roll On/Roll Off vessels. . . .”
Complainants allege that Respondents violated provisions of the Shipping Act of 1984, including 46 U.S.C. 40302(a), 41102(b)(1), 41102(c), 41103(a)(1) and (2), 41104(10), 41105(1) and (6), and the Commission's regulations at 46 CFR 535.401
Complainants request the following relief:
(1) That Respondents be required to answer the charges herein;
(2) That after due investigation and hearing Respondents be found to have violated 46 U.S.C. 40302(a), 41102(b)(l), 41102(c), 41103(a)(l) and (2), 41104(10), 41105(1) and (6), and 46 CFR 535.401,
(3) The FMC determine that this action may be maintained as a class action under Rule 23(a), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure, and direct that reasonable notice of this action, as provided by Rule 23(c)(2) of the Federal Rules of Civil Procedure, be given to each and every member of the Class;
(4) That Complainants be awarded reparations in a sum to be proven under 46 U.S.C. 41305, with interest (46 U.S.C. 41305(a)) and reasonable attorneys' fees (46 U.S.C. 41305 (b));
(5) That Complainants be awarded double its proven actual injury under 46 U.S.C. 41305(c) because Respondents and their co-conspirators violated 46 U.S.C. 41102(b) and 41105(1);
(6) That Respondents be found jointly and severally liable for the conduct alleged herein including that of their co-conspirators; and
(7) That such other and further order or orders be made as the FMC determines to be proper.
The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding has been assigned to the Office of Administrative Law Judges. The initial decision of the presiding officer in this proceeding shall be issued by March 24, 2017 and the final decision of the Commission shall be issued by October 10, 2017.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “
Comments on this notice must be received by May 31, 2016.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Consumer Assessment of Healthcare Providers and Systems (CAHPS®) Hospital Survey (HCAHPS) was first implemented on a voluntary basis in 2006 to assess patients' experiences with care. Today, hospitals subject to the Inpatient Prospective Payment System (IPPS) annual payment update provisions are required to collect and submit HCAHPS data in order to receive their full annual payment update. In addition, HCAHPS performance was added to the calculation of the value-based incentive payment in the Hospital Value-Based Purchasing (Hospital VBP) program, beginning with discharges in October 2012. The FY 2015 Hospital VBP program links 30% of the Inpatient Prospective Payment System hospitals' payment from CMS to HCAHPS performance.
Despite the high stakes associated with HCAHPS scores, little is known about the ways in which hospitals are using HCAHPS data and supplemental information about patient experience to understand and improve their patients' experiences.
This research has the following goals:
(1) To characterize the role of HCAHPS in hospitals' efforts to improve patient experiences
(2) to identify the types of quality improvement activities that hospitals implement to improve their HCAHPS scores
(3) to describe hospitals' perspectives on HCAHPS
(4) to determine the types of information collected by hospitals beyond those required for Hospital VBP
This study is being conducted by AHRQ through its contractor, the RAND Corporation, pursuant to AHRQ's statutory authority to conduct and support research on health care and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of health care services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).
Characterizing hospitals' use of HCAHPS data will provide important insight into the activities hospitals conduct to improve patient experience scores. This information may be useful in supporting hospitals that lag behind their peers, learning from hospitals with outstanding records of patient experience, and providing recommendations that may be used to refine HCAHPS survey content.
Table 1 shows the estimated annualized burden and cost for the respondents' time to participate in this data collection. These burden estimates are based on tests of data collection conducted on nine or fewer entities. As indicated below, the annual total burden hours are estimated to be 294 hours. The annual total cost associated with the annual total burden hours is estimated to be $14,708.
Table 1 shows the estimated annualized burden for the respondents' time to participate in this data collection. The Survey of Hospital Quality Leaders will be administered to 500 individuals. Prior work suggests that 3-5 items can typically be completed per minute, depending on item complexity and respondent characteristics, (Hays & Reeve, 2010; Berry, 2009). We have calculated our burden estimate using a conservative estimate of 4.5 items per minute. The survey contains 159 items and is thus estimated to require an average administration time of 35 minutes. As indicated below, the annual total burden hours are estimated to be 294 hours.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of request for nominations for public members.
42 U.S.C. 299c establishes a National Advisory Council for Healthcare Research and Quality (the Council). The Council is to advise the Secretary of HHS (Secretary) and the Director of the Agency for Healthcare Research and Quality (AHRQ) on matters related to activities of the Agency to carry out its mission. AHRQ's mission is to produce evidence to make health care safer, higher quality, more accessible, equitable, and affordable, and to work within the U.S. Department of Health and Human Services and with other partners to make sure that the evidence is understood and used.
The terms of seven current members will expire in November 2016. To fill these positions, we are seeking individuals who are distinguished in: (1) The conduct of research, demonstration projects, and evaluations with respect to health care; (2) the fields of health care quality research or health care improvement; (3) the practice of medicine; (4) other health professions; (5) representing the private health care sector (including health plans, providers, and purchasers) or administrators of health care delivery systems; (6) the fields of health care economics, information systems, law, ethics, business, or public policy; and, (7) the representation of the interests of patients and consumers of health care. 42 U.S.C. 299c(c)(2).
Individuals are particularly sought with experience and success in activities specified in the summary above.
Nominations should be received on or before 60 days after date of publication.
Nominations should be sent to Jaime Zimmerman AHRQ, 5600 Fishers Lane, 06E37A, Rockville, Maryland 20857. Nominations may also be emailed to
Jaime Zimmerman, AHRQ, at (301) 427-1456.
42 U.S.C. 299c provides that the Secretary shall appoint 21 appropriately qualified individuals to the National Advisory Council for Healthcare Research and Quality. At least 17 members shall be representatives of the public and at least one member shall be a specialist in the rural aspects of one or more of the professions or fields listed in the above summary. In addition, the Secretary designates, as ex officio members, representatives from other Federal agencies, principally agencies that conduct or support health care research, as well as Federal officials the Secretary may consider appropriate. 42 U.S.C. 299c(c)(3). The Council meets approximately 3 times a year in the Washington, DC, metropolitan area, generally in Rockville, Maryland, to provide broad guidance to the Secretary and AHRQ's Director on the direction of and programs undertaken by AHRQ.
Seven individuals will be selected by the Secretary to serve on the Council beginning with the meeting in the spring of 2017. Members generally serve 3-year terms. Appointments are staggered to permit an orderly rotation of membership.
Interested persons may nominate one or more qualified persons for membership on the Council. Self-nominations are accepted. Nominations shall include: (1) A copy of the nominee's resume or curriculum vitae; and (2) a statement that the nominee is willing to serve as a member of the Council. Selected candidates will be asked to provide detailed information concerning their financial interests, consultant positions and research grants and contracts, to permit evaluation of possible sources of conflict of interest. Please note that once a candidate is nominated, AHRQ may consider that nomination for future positions on the Council. Federally registered lobbyists are not permitted to serve on this advisory board pursuant to the Presidential Memorandum entitled “Lobbyists on Agency Boards and Commissions” dated June 10, 2010, and the Office of Management and Budget's “Final Guidance on Appointment of Lobbyists to Federal Boards and Commissions,” 76 FR 61756 (October 5, 2011).
The Department seeks a broad geographic representation. In addition, AHRQ conducts and supports research concerning priority populations, which include: Low-income groups; minority groups; women; children; the elderly; and individuals with special health care needs, including individuals with disabilities and individuals who need chronic care or end-of-life health care. See 42 U.S.C. 299(c). Nominations of persons with expertise in health care for these priority populations are encouraged.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement (FOA) DP 16-003, Johnston County Osteoarthritis Project: Arthritis, Disability, and Other Chronic Diseases.
This notice did not publish within the 15-day regulatory requirement, although it was submitted to the Office of the Federal Register on March 4, 2016. This is a re-submission for publication.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana (FEMA-4263-DR), dated March 13, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Louisiana is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of March 13, 2016.
The parishes of Beauregard, Bienville, Caddo, Caldwell, De Soto, La Salle, Livingston, Madison, Natchitoches, St. Tammany, Tangipahoa, Union, Vernon, Washington, West Carroll, and Winn for Individual Assistance and assistance for debris removal and emergency protective measures (Categories A and B), including direct federal assistance, under the Public Assistance program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana (FEMA-4263-DR), dated March 13, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Louisiana is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of March 13, 2016.
The parishes of Allen, Ascension, and Calcasieu for Individual Assistance and assistance for debris removal and emergency protective measures (Categories A and B), including direct federal assistance, under the Public Assistance program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Louisiana (FEMA-4263-DR), dated March 13, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated March 13, 2016, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Louisiana resulting from severe storms and flooding beginning on March 8, 2016, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance and assistance for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs). Direct Federal assistance is authorized.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Gerard M. Stolar, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Louisiana have been designated as adversely affected by this major disaster:
The parishes of Bossier, Claiborne, Grant, Morehouse, Ouachita, Richland, and Webster for Individual Assistance.
The parishes of Bossier, Claiborne, Grant, Morehouse, Ouachita, Richland, and Webster for debris removal and emergency protective measures (Categories A and B), including direct federal assistance, under the Public Assistance program.
All areas within the State of Louisiana are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service (Service), announce a public meeting of the Sport Fishing and Boating Partnership Council (Council). A Federal advisory committee, the Council was created in part to foster partnerships to enhance public awareness of the importance of aquatic resources and the social and economic benefits of recreational fishing and boating in the United States. This meeting is open to the public, and interested persons may make oral statements to the Council or may file written statements for consideration.
The meeting will take place Tuesday, May 3, 2016, from 8:30 a.m. to 4:30 p.m. (Eastern Time) and Wednesday, May 4, 2016, from 8:30 a.m. to 3:30 p.m. For deadlines and directions on registering to attend the meeting, submitting written material, and/or giving an oral presentation, please see “Public Input” under
The meeting will be held at the National Oceanic and Atmospheric Administration's Florida Keys Eco-Discovery Center, 35 East Quay Road, Key West, Florida 33040.
Brian Bohnsack, Sport Fishing and Boating Partnership Council Coordinator, 5275 Leesburg Pike, Mailstop FAC, Falls Church, VA 22041; telephone (703) 358-2435; fax (703) 358-2487; or email
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that the Sport Fishing and Boating Partnership Council will hold a meeting.
The Council was formed in January 1993 to advise the Secretary of the Interior, through the Director of the Service, on aquatic conservation endeavors that benefit recreational fishery resources and recreational boating and that encourage partnerships among industry, the public, and government. The 18-member Council, appointed by the Secretary of the Interior, includes the Service Director and the president of the Association of Fish and Wildlife Agencies, who both serve in ex officio capacities. Other Council members are directors from State agencies responsible for managing recreational fish and wildlife resources and individuals who represent the interests of saltwater and freshwater recreational fishing, recreational boating, the recreational fishing and boating industries, recreational fisheries resource conservation, Native American tribes, aquatic resource outreach and education, and tourism. Background information on the Council is available at
During the meeting, the Council will consider issues affecting recreational fishing and boating programs on Federal lands. An abbreviated list of planned agenda items includes:
• An update and discussion on the Council's assessment of the Recreational Boating and Fishing Foundation's implementation of the National Outreach and Communication Program (Catalog of Federal Domestic Assistance number 15.653);
• An update and discussion regarding the Council's proposed pilot project to improve the efficiency of Federal agencies' permitting review processes associated with boating infrastructure projects (
• An update of the fishing and boating programs administered by the Florida Fish and Wildlife Conservation Commission;
• Status of the Council's nomination process and charter update; and
• Other miscellaneous Council business.
The final agenda will be posted on the Internet at
The Council meeting will be held at the National Oceanic and Atmospheric Administration's Florida Keys Eco-Discovery Center, 35 East Quay Road, Key West, Florida. Signs will be posted to direct attendees to the specific conference room.
Interested members of the public may submit relevant information or questions for the Council to consider during the meeting. Written statements must be received by the date listed above in “Public Input.” Written statements must be supplied to the Council Coordinator either by sending one hard copy with original signature via the mail or one electronic copy via email (acceptable file formats are Adobe Acrobat PDF, MS Word, MS PowerPoint, or rich text file).
Individuals or groups requesting to make an oral presentation during the meeting will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator, in writing (preferably via email; see
Summary minutes of the meeting will be maintained by the Council Coordinator (see
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service (Service), announce a public meeting of the Advisory Council on Wildlife Trafficking (Council). The Council's purpose is to provide expertise and support to the Presidential Task Force on Wildlife Trafficking. You may attend the meeting in person, or you may participate via telephone. At this time, we are inviting submissions of questions and information for consideration during the meeting.
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We will not accept email or faxes. We request that you send comments only by the methods described above. We will post all comments on
Mr. Cade London, Policy Advisor, International Affairs, U.S. Fish and Wildlife Service, by email at
In accordance with the requirements of the Federal Advisory Committee Act (5 U.S.C. App.), we announce that the Advisory Council on Wildlife Trafficking (Council) will hold a meeting to discuss the implementation of the National Strategy for Combating Wildlife Trafficking, and other Council business as appropriate. The Council's purpose is to provide expertise and support to the Presidential Task Force on Wildlife Trafficking.
You may attend the meeting in person, or you may participate via telephone. At this time, we are inviting submissions of questions and information for consideration during the meeting.
Executive Order 13648 established the Advisory Council on Wildlife Trafficking on August 30, 2013, to advise the Presidential Task Force on Wildlife Trafficking, through the Secretary of the Interior, on national strategies to combat wildlife trafficking, including, but not limited to:
1. Effective support for anti-poaching activities;
2. Coordinating regional law enforcement efforts;
3. Developing and supporting effective legal enforcement mechanisms; and
4. Developing strategies to reduce illicit trade and consumer demand for illegally traded wildlife, including protected species.
The eight-member Council, appointed by the Secretary of the Interior, includes former senior leadership within the U.S. Government, as well as chief executive officers and board members from conservation organizations and the private sector. For more information on the Council and its members, visit
The Council will consider:
1. Task Force discussions,
2. Administrative topics, and
3. Public comment and response.
The final agenda will be posted on the Internet at
Members of the public who want to make an oral presentation in person or by telephone at the meeting will be prompted during the public comment section of the meeting to provide their presentation and/or questions. If you want to make an oral presentation in person or by phone, contact Mr. Cade London (
Registered speakers who want to expand on their oral statements, or those who wanted to speak but could not be accommodated on the agenda, are invited to submit written statements to the Council after the meeting. Such written statements must be received by Mr. London, in writing (preferably via email), no later than April 22, 2016.
You may submit your questions and information by one of the methods listed in
If you submit information via the Federal eRulemaking Portal (
If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions at
Comments and materials we receive will be available for public inspection at
Summary minutes of the meeting will be available on the Council Web site at
Bureau of Land Management, Interior.
Notice.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), the Bureau of Land Management (BLM), Washington Office, intends to prepare a Programmatic Environmental Impact Statement (EIS) to review the Federal coal program.
This Notice of Intent begins the process of defining the scope of the Programmatic EIS by providing background on the Federal coal program and identifying the issues that may be addressed in the Programmatic EIS. This Notice informs the public about: Concerns that have been raised about the Federal coal program; issues that are expected to be assessed in the Programmatic EIS; and potential modifications to the Federal coal program suggested by stakeholders during the listening sessions that could be considered in the Programmatic EIS. This Notice of Intent also announces plans to conduct public scoping meetings, invites public participation in the scoping process, and solicits public comments for consideration in establishing the scope and content of the Programmatic EIS.
The BLM will invite interested agencies, States, American Indian tribes, local governments, industry, organizations and members of the public to submit comments or suggestions to assist in identifying significant issues and in determining the scope of this Programmatic EIS.
The BLM will be holding public scoping meetings to obtain comments on the Programmatic EIS and plans to hold these meetings in the following locations: Casper, WY; Grand Junction, CO; Knoxville, TN; Pittsburgh, PA; Salt
You may submit written comments by the following methods:
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Mitchell Leverette, Chief, Division of Solid Minerals, email:
On January 15, 2016, the Secretary of the Interior issued Order No. 3338 directing the BLM to conduct a broad, programmatic review of the Federal coal program it administers through preparation of a Programmatic EIS under NEPA. 42 U.S.C. 4321
Under the Mineral Leasing Act of 1920, as amended, 30 U.S.C. 181
On average, over the last few years, about 41 percent of the Nation's annual coal production came from Federal land. Federal coal produced from the Powder River Basin in Montana and Wyoming accounts for over 85 percent of all Federal coal production. Federal coal was used to generate an estimated 14 percent of the Nation's electricity in 2015. Coal is also used for other critical processes, including making steel (metallurgical coal).
As of FY2015, the BLM administered 306 coal leases, covering 482,691 acres in 11 States, with an estimated 7.75 billion tons of recoverable Federal coal. Over the last decade (2006-2015), the BLM sold 32 coal leases and managed leases that produced approximately 4.3 billion tons of coal and resulted in $9.55 billion in revenue collections by the United States.
The U.S. Energy Information Administration (EIA) estimates total U.S. coal production in 2015 was about 895 million short tons (MMst), 10 percent lower than in 2014 and the lowest level since 1986.
EIA estimates that U.S. coal exports decreased 23 MMst (24 percent) from 2014 levels to 74 MMst in 2015, and EIA expects the current global coal market trends to continue.
In terms of employment and revenues to the States, coal mining employed almost 90,000 people in 2012. More recently, there were an estimated 74,000 direct jobs in coal mining as of May 2014, including roughly 6,500 in Wyoming.
The current BLM coal leasing program includes land use planning, processing applications (
The Federal Government receives revenue from coal leasing in three ways: (1) A bonus that is paid at the time BLM issues a lease; (2) Rental fees; and (3) Production royalties. The royalty rates are set by regulation at a fixed 8 percent for underground mines and not less than 12.5 percent for surface mines. All receipts from a lease are shared with the State in which the lease is located (51 percent to the Federal Government and 49 percent to the State).
The BLM's planning process for Resource Management Plans, supported by environmental analysis under NEPA, identifies areas that are potentially available to be considered for coal leasing. The planning process considers, among other things, the impacts of a “reasonably foreseeable development scenario,” but it does not directly authorize any coal leasing or determine which coal will actually be leased.
The Federal Coal Leasing Amendments Act of 1976 (FCLAA), which amended Section 2 of the Mineral Leasing Act of 1920, requires that, with limited exceptions, Federal lands available for coal leasing be sold by competitive bid, with the BLM receiving “fair market value” for the lease. While multiple bids are not required, all successful bids must equal or exceed the estimated pre-sale fair market value for the lease, as calculated by the BLM. Competitive leasing is not required for: (1) Preference right lease applications for owners of pre-FCLAA prospecting permits; and (2) Modifications of existing leases, where Congress has authorized the Secretary to allow up to 960 acres (increased from 160 acres by the Energy Policy Act of 2005) of contiguous lands for noncompetitive leasing by modifying an existing lease.
The BLM issued coal leasing regulations in 1979 that provided for two separate competitive coal leasing processes: (1) Regional leasing, where the BLM selects tracts within a region for competitive sale; and (2) Leasing by application, where an industry applicant nominates a particular tract of coal for competitive sale.
Regional coal leasing requires the BLM to select potential coal leasing tracts based on land use planning, expected coal demand, and potential environmental and economic impacts.
There are two separate bonding requirements for Federal coal leases. The BLM requires a bond adequate to ensure compliance with the terms and conditions of the lease, which must cover a portion of potential liabilities associated with the bonus bid, rental fees, and royalties. In addition, under SMCRA, the OSMRE or the State with regulatory primacy requires sufficient bonding to cover anticipated reclamation costs.
A Federal coal lease has an initial term of 20 years, but it may be terminated after 10 years if the coal resources are not diligently developed. 30 U.S.C. 207. Existing leases that have met their diligence requirements may be renewed for additional 10 year terms following the initial 20 year term.
The Department has previously conducted two separate, comprehensive reviews of the Federal coal program. In the late 1960s, there were serious concerns about speculation in the coal leasing program. A BLM study discovered a sharp increase in the total Federal acreage under lease and a consistent decline in coal production. In response, the Department undertook the development of a planning system to determine the size, timing, and location of future coal leases, and the preparation of a Programmatic EIS for the entire Federal coal leasing program. Beginning in February 1973, the short-term actions included a complete moratorium on the issuance of new coal prospecting permits, and a moratorium with limited exceptions on the issuance of new Federal coal leases. New leases were issued only to maintain existing mines or to supply reserves for production in the near future, where “near future” meant that development and production were to commence within 3 and 5 years, respectively. The moratorium was scaled back over time, but was not completely lifted until 1981, after the Programmatic EIS had been completed, a new leasing system had been adopted through regulation, and litigation was resolved.
In 1982, concerns about the Federal coal program arose again, this time related to allegations that the Government did not receive fair market value from a large lease sale in the Powder River Basin under the new procedures adopted as part of the programmatic review in the 1970s. Among other reports on the issue, in May 1983, the Government Accountability Office (GAO) issued a report concluding that the Department had received roughly $100 million less than it should have for the leases sold. In response, in July 1983, Congress directed the Secretary to appoint members to a commission, known as the Linowes Commission, to investigate fair market value policies for Federal coal leasing. Congress also, in the 1984 Appropriations Act, directed the Office of Technology Assessment (OTA) to study whether the Department's coal leasing program was compatible with the nationally mandated environmental protection goals.
As part of the 1984 Appropriations Bill, Congress imposed a moratorium on the sale or lease of coal on public lands, subject to certain exceptions, starting in 1983 and ending 90 days after publication of the Linowes Commission's report. The Linowes Commission published the
Interior Secretary William P. Clark extended the suspension of coal leasing (with exceptions for emergency leasing and processing preference right lease applications, among other things), while the Department completed its comprehensive review of the program. This review included proposed modifications to be made by the Department in response to the Linowes Commission and OTA reports. Secretary Clark announced on August 30, 1984, that the Department would prepare an EIS supplement to the 1979 Programmatic EIS for the Federal coal management program. The Department issued the Record of Decision for the Programmatic EIS supplement in January 1986, in the form of a Secretarial Issue Document. That document recommended continuation of the leasing program with modifications. In conjunction with those modifications, Interior Secretary Donald Hodel lifted the coal leasing moratorium in 1987.
On March 17, 2015, Secretary Jewell called for “an honest and open conversation about modernizing the Federal coal program.” As described above, the last time the Federal coal program underwent comprehensive review was in the mid-1980s, and market conditions, infrastructure development, scientific understanding, and national priorities have changed considerably since that time. The Secretary's call also responded to continued concerns from numerous stakeholders about the Federal coal program, including concerns raised by the GAO,
In response to the Secretary's call for a conversation to address these concerns, the BLM held 5 listening sessions regarding the Federal coal program in the summer of 2015. Sessions were held in Washington, DC; Billings, Montana; Gillette, Wyoming; Denver, Colorado; and Farmington, New Mexico. The Department heard from 289 individuals during the sessions and received more than 92,000 written comments before the comment period closed on September 17, 2015. The oral and written comments reflected several recurring themes:
• Concern about global climate change and the impact of coal production and use.
• Concern about the loss of jobs and local revenues if coal production is reduced.
• Support for increased transparency and public participation in leasing and royalty decisions and concern that the structure of the leasing program does not provide for adequate competition or a fair return to the taxpayer for the use of Federal resources.
• Support for increasing coal royalty rates because: (1) The royalty rate should account for the environmental costs of coal production; (2) The royalty rate should match the rate for offshore Federal leases; and (3) Taxpayers are not receiving a fair return.
• Support for maintaining or lowering coal royalty rates because: (1) The coal industry already pays more than its fair share and existing Federal rates are too high given current market conditions; (2) Raising rates will lower production and revenues; and (3) Raising rates will cost jobs and harm communities.
• Support for streamlining the current leasing process, so that the Federal coal program is administered in a way that better promotes economic stability and jobs, especially in coal communities which are already suffering from depressed economic conditions.
Of these concerns, three aspects of the current Federal coal program received the most attention. First, numerous stakeholders are concerned that American taxpayers are not receiving a fair return on public coal resources. Second, many stakeholders are concerned that the Federal coal program conflicts with the Administration's climate policy and our national climate goals, making it more difficult for us to achieve those goals. Third, there are numerous and varying concerns about the structure of the Federal coal program in light of current market conditions, including how implementation of the Federal leasing program affects current and future coal markets, coal-dependent communities and companies, and the reclamation of mined lands. These three main concerns are addressed in more detail below.
In 2013, both GAO and OIG issued reports expressing concerns about the Federal coal program, particularly with respect to the leasing process and fair market value. In response, in 2014, the BLM developed new protocols and issued policy guidance, a manual, and a handbook to implement these changes. Nevertheless, stakeholders have expressed concerns that the BLM's response, while helpful, was insufficient to rectify fundamental weaknesses in the program with respect to fair return.
These concerns arise, at least in part, because there is currently very little competition for Federal coal leases. About 90 percent of lease sales receive bids from only one bidder, typically the operator of a mine adjacent to the new lease, given the investment required to
Commenters also raised concerns about the royalty rates set in Federal leases, which are set by regulation at a fixed 8 percent for underground mines and not less than 12.5 percent for surface mines. Many stakeholders believe that these rates do not adequately compensate the public for the removal of the coal and the externalities associated with its use. Still others have suggested that the large volumes and relatively low costs of Federal coal, which currently represents approximately 41 percent of total domestic production, have the effect of artificially lowering market prices for coal, further reducing the amount of royalties received.
Stakeholders also criticize the Federal coal program for obtaining even lower returns through certain types of leasing actions, such as lease modifications, and through royalty rate reductions, which may result in royalty rates as low as 2 percent. In addition, stakeholders have noted that the $100 acre minimum bid requirement established in the regulations is outdated, and although the minimum bid does not apply frequently, given fair market value requirements, there are situations in which it sets the floor for the bid price.
Some stakeholders further suggest that a fair return to the taxpayer should also include compensation for externalities such as the environmental damage (or lost environmental benefits) from the removal and combustion of the coal.
Stakeholders raised a variety of concerns about the implications of current and future coal market conditions. As reported by EIA, between 2008 and 2013, U.S. coal production fell by 16 percent in total, as declining natural gas prices and other factors made coal less competitive as a fuel for generating electricity.
Stakeholders have urged the BLM to modify the Federal coal program to take these significant market changes into account, although the recommended changes vary. Some suggest that the program should attempt to improve the economic viability of the coal industry by reducing royalties and streamlining the leasing and permitting processes. Others raise concerns that the program has contributed to low coal prices by incentivizing over-production through non-competitive sales that oversupply the market.
Some have focused on how current market conditions threaten reclamation of lands disturbed by coal mining and may leave State and Federal governments with billions of dollars of unfunded reclamation liabilities. Specifically, many coal companies “self-bond” to meet reclamation bonding requirements, and some stakeholders have asserted that these companies may no longer have the funds to support reclamation activities, and/or they may attempt to shed reclamation obligations in bankruptcy.
Stakeholders also expressed a number of views regarding export of Federal coal. Some see export markets as a possible way to maintain or expand Federal coal production, while others view the production of coal for export as a less valuable activity than coal production for domestic use. A number of stakeholders expressed concern that exports, or the potential for exports, were not adequately considered as part of the leasing process.
The third broad category of concerns about the Federal coal program relates to its impacts on climate change. The United States has pledged under the United Nations Framework Convention on Climate Change to reduce its greenhouse gas (GHG) emissions by 26-28 percent below 2005 levels by 2025. The Obama Administration has made, and is continuing to make, unprecedented efforts to reduce U.S. GHG emissions in line with this target through measures such as vehicle efficiency standards, the Clean Power Plan, energy efficiency standards, requirements to reduce methane reductions from oil and gas production, and many other measures. Numerous scientific studies indicate that reducing GHG emissions from coal use worldwide is critical to addressing climate change.
As noted above, the Federal coal program is a significant component of overall U.S. coal production. In recent years, Federal coal has comprised about 41 percent of the coal produced in the U.S.
Many stakeholders highlighted the tension between producing very large quantities of Federal coal while pursuing policies to reduce U.S. GHG emissions substantially, including from coal combustion. They also stated that the current leasing system does not provide a way to systematically consider the climate impacts and costs to the public of Federal coal development, either as a whole, or in the context of particular projects. In addition, they raise concerns that exporting Federal coal, and the associated GHG emissions, undermines
On January 15, 2016, the Secretary of the Interior issued Order No. 3338 directing the BLM to conduct a broad, programmatic review of the Federal coal program it administers through the preparation of a Programmatic EIS under NEPA. The Order stated:
Given the broad range of issues raised over the course of the past year (and beyond) and the lack of any recent analysis of the Federal coal program as a whole, a more comprehensive, programmatic review is in order, building on the BLM's public listening sessions . . . .
[T]he purpose of the P[rogrammatic] EIS is to identify, evaluate, and potentially recommend reforms to the Federal coal program. This review will enable the Department to consider how to modernize the program to allow for the continued development of Federal coal resources while addressing the substantive issues raised by the public, other stakeholders, and the Department's own review of the comments it has received.
The Order does not apply to the coal program on Indian lands, as that program is distinct from the BLM's program and is subject to the unique trust relationship between the United States and federally recognized Indian tribes and government-to-government consultation requirements. The Order also does not apply to any action of OSMRE or ONRR.
The Programmatic EIS will identify and review potential modifications to the Federal coal program to address the concerns discussed above and others that may be identified during the scoping process, and potentially, identify a preferred set of actions. Such modifications could include changes to guidance, regulations, and/or land use plans. The process of developing the Programmatic EIS will be used to identify and develop potential changes to the program and evaluate their projected effects on the quality of the human environment. In addition, the Programmatic EIS will consider, as an alternative, a continuation of the current Federal coal program without any modifications, as required by NEPA. The scoping process will refine the specific issues to be addressed in the Programmatic EIS and the potential modifications to be evaluated. Cooperating agencies may include any Federal, State, or local agency or tribal government with jurisdiction or special expertise in matters within the scope of the Programmatic EIS.
The full set of issues to be assessed in the Programmatic EIS will be determined through the public scoping process, but it is expected to include the following topics. The Order identified most of these, but the following list has been expanded to include additional topics and details raised through the listening sessions.
a.
As part of this evaluation, the Programmatic EIS will examine the issue of when to lease. Some leasing programs for other Federal resources operate with an established schedule for leasing or consideration of leasing (
The Programmatic EIS will also examine where to lease and where not to lease, consistent with taking a landscape level view of this question. The Federal Land Policy and Management Act requires the BLM to develop land use plans, also known as Resource Management Plans to guide the BLM's management of public lands. The BLM uses this planning process to identify and address, at a broad scale, potential conflicts over and impacts of possible resource uses. The Programmatic EIS will consider whether the BLM's unsuitability screening criteria adequately address the questions of where and/or where not to lease for coal production, as well as other potential factors that could be applied during the planning process to provide guidance on the most appropriate locations for coal leasing. This question is particularly timely in light of the BLM's recent proposal to update the current planning regulations (“Planning 2.0”).
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The BLM is considering various approaches for reforming the Federal coal program to address some or all of the identified issues above, including providing a fair return to taxpayers and providing appropriate consideration of the impacts the program has on the environment. These approaches may be considered separately or in any combination.
To date, stakeholders have made suggestions that range from maintaining the status quo to undertaking sweeping changes. During the listening sessions, commenters suggested a variety of modifications that could be made to the Federal coal program to better address concerns about fair return to taxpayers, market conditions, and effects on climate change, among others. Some of these suggestions were sufficiently specific to constitute potential approaches that could be evaluated in the Programmatic EIS. These proposals are summarized below.
The BLM requests comment on whether the Programmatic EIS should further evaluate some or all of these specific approaches, or some variation on them. The BLM also welcomes suggestions for other potential approaches that should be evaluated in the Programmatic EIS, including approaches that may be contrary to those articulated below, such as reforming the leasing process to promote coal development through steps that might accelerate leasing and reduce delays and costs. As previously noted, the Programmatic EIS will also consider a “no action alternative”—the continuation of the program without any modifications—as required by NEPA. We encourage commenters to be as specific as possible in identifying the types of changes to the program that the Programmatic EIS should evaluate, including changes to regulations, guidance, and management practices.
To address concerns about fair returns to taxpayers, the BLM is considering evaluating the following approaches:
• Raise the royalty rate or adjust the royalty terms of new leases, such as:
○ Raise the royalty rate to 18.75 percent, consistent with the royalty rate for Federal offshore oil and gas;
○ Raise the royalty rate to a level that would provide parity on an energy content (Btu) basis with the royalties currently collected for Federal onshore natural gas, a common substitute fuel;
○ Raise the royalty rate to the point that would maximize revenues to the taxpayer, taking into consideration any decrease in demand that may result from the higher royalty rate; or
○ Identify and require an “adder” to be paid to reflect the cost of the harm to the public from negative externalities from coal development;
• Limit the use of royalty rate reductions;
• Change the methodology for determining fair market value when establishing the minimum bid or valuing lease modifications, such as:
○ Use the market price of non-Federal coal in the region or nation-wide;
○ Include the option value of leasing the coal resource at a given point in time;
○ Include the social cost of mining (
○ Explicitly include export value in establishing fair market value;
○ Replace the lease by application approach with an open process of setting (after public comment and expert advice) minimal acceptable bid levels for tracts; or
○ Update the minimum bid established by regulation to account for inflation, and/or establish state-specific minimum bids;
• Raise rental rates to adjust for inflation and/or incorporate lost value of other uses of the land and anticipated externalities of exploratory activities;
• Do not lease to companies that have more than 10 years of recoverable reserves coal at the time of lease application; and
• Evaluate whether there is an over-supply of Federal coal that is undercutting market prices for coal in the United States and thereby leading to lower royalty revenue.
The BLM received the following industry proposals concerned with promoting coal production that are also under consideration:
• Lower royalty rates, including as a means of increasing overall government take;
• Broaden the applicability of royalty rate reductions;
• Reform the leasing process to accelerate leasing and reduce delays and costs;
• Base bonus bids on the amount of recoverable coal, not coal reserves;
• Convert revenue streams to pay-as-you go, instead of an upfront payment of bonus bids over five years; and
• Reestablish the Royalty Policy Committee to guide changes to royalties.
To address concerns about climate impacts and/or other public health and environmental harms, the BLM is considering evaluating the following approaches:
• Change the methodology for determining which, or how much, Federal coal and/or acreage is made available for leasing, such as:
○ Establish a “budget,” or other quantity-based schedule, for the amount of Federal coal and/or acreage to be leased over a given period, with the budget set on a declining schedule consistent with the United States' climate goals and commitments and market demand;
○ Re-establish an updated version of the regional planning and leasing process, using land use planning and environmental evaluation to decide whether an area should be leased; or
○ Develop a landscape-level approach to identify geographic areas for potential leasing to identify and address potential conflicts
• Raise royalty rates or require an “adder” to be paid to reflect the cost of the harm to the public from negative externalities from coal development (could include production-related externalities, transportation-related externalities, externalities from use of coal, and/or costs of infrastructure demand, such as water and power), such as:
○ Incorporating the social cost of carbon;
○ Incorporating the social cost of methane; or
○ Reflecting other externalities;
• Require climate and/or other public health and environmental harms to be mitigated; and
• Prohibit or otherwise limit leasing to entities that are not meeting their environmental responsibilities, such as:
○ Entities listed in the Office of Surface Mining Reclamation and Enforcement Applicator Violator System; or
○ Entities that have not met their reclamation or bonding (including bond release) requirements.
The Federal coal program Programmatic EIS process will provide opportunities for formal public participation through commenting during public scoping and on the draft Programmatic EIS, when that is published. The BLM aims to complete the Coal Programmatic EIS over roughly 3 years. The process will include public and agency scoping, including public scoping meetings, collection of public comments during the scoping period, issuance of a summary of substantive comments received during the scoping period, as well as issuance of a scoping report at the end of the scoping process; coordination and consultation with Federal, State, tribal and local governments; publication of a draft Programmatic EIS; public review of and comments on the draft Programmatic EIS; and publication of a final Programmatic EIS, which will include the BLM's responses to substantive comments received on the draft Programmatic EIS. The Programmatic EIS process is intended to involve all interested agencies (Federal, State, county, and local), Native American tribes, public interest groups, businesses, and members of the public.
At this time, interested parties are invited to participate in the scoping process to assist the BLM in identifying and refining the issues and policy proposals to be analyzed in depth and in eliminating from detailed study those policy proposals and issues that are not feasible or pertinent. Participation in the scoping process may take the form of attendance at public scoping meetings, speaking at public scoping meetings, and/or submitting written comments.
In addition to taking comment on the specific approaches discussed above, as well as welcoming suggestions for other potential approaches that should be evaluated in the Programmatic EIS, BLM is soliciting input on the following:
Public scoping meetings will be held as indicated above under the
In submitting written comments, individuals should be aware that the entire comment—including personal identifying information (including address, phone number, and email address)—may be made publicly available at any time. While the commenter can request in the comment that the commenter's personal identifying information be withheld from public review, this cannot be guaranteed. All comments from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be available for public inspection in their entirety. If you would like to receive a copy of the draft Programmatic EIS and other project materials, you are encouraged to make this request through the project Web site (
Pursuant to 36 CFR 800.2(d)(3), the BLM will use the NEPA public participation requirements to satisfy the public involvement requirements under Section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. 470(f). The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the Federal coal program, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
After gathering public comments on issues and policy proposals that should be addressed in the Programmatic EIS, the BLM will identify the issues and policy proposals to be addressed in the Programmatic EIS and the issues and proposals determined to be beyond the scope of the Programmatic EIS. Following closure of the scoping period, the BLM will prepare a scoping summary report and will make the report available to the public. The report will be posted on the project Web site (
The BLM will prepare the Programmatic EIS in accordance with, but not limited to, the National Environmental Policy Act, 42 U.S.C. 4321
This notice is published in accordance with section 40 CFR 1501.7 of the CEQ regulations and 43 CFR 46.235 of the DOI regulations implementing the NEPA.
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information from individuals, households, farms, and businesses interested in cooperating with the BLM in constructing or maintaining range improvement projects that enhance or improve livestock grazing management, improve watershed conditions, enhance wildlife habitat, or serve similar purposes. The BLM also invites public comments on this collection of information. The Office of Management and Budget (OMB) has assigned control number 1004-0019 to this information collection.
Please submit comments on the proposed information collection by May 31, 2016.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004-0019” regardless of the form of your comments.
Kimberly Hackett, at 202-912-7216. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Ms. Hackett.
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information pertains to this request:
• Form 4120-6 (Cooperative Range Improvement Agreement); and
• Form 4120-7 (Range Improvement Permit).
The estimated burdens are itemized in the following table:
Bureau of Land Management, Interior.
30-Day notice and request for comments.
The Bureau of Land Management (BLM) has submitted an information collection request to the Office of Management and Budget (OMB) to continue the collection of information regarding authorizations pertaining to solid minerals other than coal and oil shale. The Office of Management and Budget (OMB) previously approved this information collection activity, and assigned it control number 1004-0121.
The OMB is required to respond to this information collection request within 60 days but may respond after 30 days. For maximum consideration, written comments should be received on or before April 29, 2016.
Please submit comments directly to the Desk Officer for the Department of the Interior (OMB #1004-0121), Office of Management and Budget, Office of Information and Regulatory Affairs, fax 202-395-5806, or by electronic mail at
Please indicate “Attn: 1004-0121” regardless of the form of your comments.
Vince Vogt, at 202-912-7125. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Mr. Vogt. You may also review the information collection request online at
The Paperwork Reduction Act (44 U.S.C. 3501-3521) and OMB regulations at 5 CFR part 1320 provide that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond. In order to obtain and renew an OMB control number, Federal agencies are required to seek public comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)).
As required at 5 CFR 1320.8(d), the BLM published a 60-day notice in the
The BLM now requests comments on the following subjects:
1. Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
2. The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
3. The quality, utility and clarity of the information to be collected; and
4. How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
Please send comments as directed under
The following information pertains to this request:
• Determine if applicants, permittees, and lessees meet qualification criteria;
• Assure compliance with various other legal requirements relating to the leasing of solid minerals other than coal or oil shale;
• Gather data needed to determine the environmental impacts of developing solid leasable minerals other than coal or oil shale;
• Maintain accurate leasing records; and
• Oversee and manage the leasing of solid minerals other than coal or oil shale.
Form 3504-1, Personal Bond and Power of Attorney;
Form 3504-3, Bond under Lease;
Form 3504-4, Statewide or Nationwide Personal Mineral Bond;
Form 3510-1, Prospecting Application and Permit;
Form 3510-2, Phosphate or Sodium Use Permit; and
Form 3520-7, Lease.
• Prospecting permits;
• Exploration licenses;
• Leases; and
• Use permits.
The following table itemizes the estimated burden hours:
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information for the location, recording, and maintenance of mining claims and sites. The Office of Management and
Please submit comments on the proposed information collection by May 31, 2016.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004-0114” regardless of the form of your comments.
Sonia Santillan, at 202-912-7123. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Ms. Santillan.
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information pertains to this request:
The estimated burdens are itemized in the following table:
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information that enables the BLM to manage Federal coal resources in accordance with applicable statutes. The Office of Management and Budget (OMB) has assigned control number 1004-0073 to this information collection.
Please submit comments on the proposed information collection by May 31, 2016.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004-0073” regardless of the form of your comments.
Bill Radden-Lesage, at 202-912-7116. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Mr. Radden-Lesage.
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information pertains to this request:
• 3440-1, Application and License to Mine Coal (Free Use); and
• 3400-12, Coal Lease.
• Applicants for, and holders of, coal exploration licenses;
• Applicants/bidders for, and holders of, coal leases;
• Applicants for, and holders of, licenses to mine coal; and
• Surface owners and State and tribal governments whose lands overlie coal deposits.
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information that enables the BLM to collect information from applicants for free use permits for vegetative or mineral materials. The Office of Management and Budget (OMB) has assigned control number 1004-0001 to this information collection.
Please submit comments on the proposed information collection by May 31, 2016.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004-0001” regardless of the form of your comments.
Mike Bechdolt, at 202-912-7234 (vegetative materials); or George Brown, at 202-912-7118 (mineral materials). Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Mr. Bechdolt or Mr. Brown.
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information pertains to this request:
• 3604-1a, Free Use Permit Application for Mineral Materials;
• 3604-1b, Free Use Permit for Mineral Materials; and
• 5510-1, Free Use Application and Permit for Vegetative Materials.
• 160 mineral materials applications; and
• 100 vegetative material applications.
• 120 burden hours for mineral materials;
• 75 burden hours for vegetative materials.
The estimated annual burdens of this collection are itemized below:
National Park Service, Interior.
Notice of availability.
The National Park Service (NPS), under its authority at 54 U.S.C. 100101(a)
Written comments will be accepted until May 16, 2016.
Draft Director's Order #21 is available online at:
Reginald Chapple, Division Chief, Office of Partnerships & Philanthropic Stewardship, National Park Service, at
The NPS is updating its current system of internal written policy guidance. When these updated documents contain new policies or internal procedural requirements that may affect parties outside the NPS, the NPS, as a matter of policy, makes them available for public review and comment before adopting them.
After public review and comment, the NPS will issue a new, revised Director's Order #21 and accompanying reference manual. Director's Order #21 covers topics such as criteria for reviewing, accepting, and recognizing donations; establishing roles and responsibilities for NPS employees who work with the philanthropic sector; and identifying agreements for fundraising and sponsorship activities.
National Park Service, Interior.
Notice.
The University of South Alabama, Center for Archaeological Studies, has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the University of South Alabama, Center for Archaeological Studies. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the University of South Alabama, Center for Archaeological Studies at the address in this notice by April 29, 2016.
Gregory A. Waselkov, Director, Center for Archaeological Studies, University of South Alabama, 6052 USA Drive South, Mobile, AL 36688, telephone (251) 460-6911, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of South Alabama, Center for Archaeological Studies, Mobile, AL. The human remains were removed from sites 1FR310 and 1FR323, Franklin County, AL.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of South Alabama, Center for Archaeological Studies professional staff in consultation with representatives of Absentee-Shawnee Tribe of Indians of Oklahoma; Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Alabama-Quassarte Tribal Town; Cherokee Nation; Chitimacha Tribe of Louisiana; Coushatta Tribe of Louisiana; Eastern Band of Cherokee Indians; Eastern Shawnee Tribe of Oklahoma; Jena Band of Choctaw Indians; Kialegee Tribal Town; Mississippi Band of Choctaw Indians; Shawnee Tribe; The Chickasaw Nation; The Choctaw Nation of Oklahoma; The Muscogee (Creek) Nation; Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama); The Quapaw Tribe of Indians; The Seminole Nation of Oklahoma; Thlopthlocco Tribal Town; Tunica-Biloxi Indian Tribe; and the United Keetoowah Band of Cherokee Indians in Oklahoma.
Around 1969, human remains representing, at minimum, one adult individual were removed from site 1FR310 in Franklin County, AL. This small collection may have been picked up from the site surface. All that is known regarding the circumstances surrounding the removal of these human remains is that an archeologist, Noel Read Stowe, wrote his master's thesis on this and other sites in Franklin County, AL, and donated the human remains to the University of South Alabama around 1970. No known individuals were identified. No associated funerary objects are present.
Around 1969, human remains representing, at minimum, one adult individual were removed from site 1FR323 in Franklin County, AL. This small collection may have been picked up from the site surface. All that is known regarding the circumstances surrounding the removal of these remains is that an archeologist, Noel Read Stowe, wrote his master's thesis on this site and other sites in Franklin County, AL, donated the human remains to the University of South Alabama around 1970. No known individuals were identified. No associated funerary objects are present.
Officials of the University of South Alabama, Center for Archaeological Studies have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on the context of their recovery from sites 1FR310 and 1FR323.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Treaties, Acts of Congress, or Executive Orders indicate that the land from which the Native American human remains were removed is the aboriginal land of The Chickasaw Nation.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Chickasaw Nation.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Gregory A. Waselkov, Director, Center for Archaeological Studies, University of South Alabama, 6052 USA Drive South, Mobile, AL 36688, telephone (251) 460-6911, email
The University of South Alabama, Center for Archaeological Studies is responsible for notifying Absentee-Shawnee Tribe of Indians of Oklahoma; Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Alabama-Quassarte Tribal Town; Cherokee Nation; Chitimacha Tribe of Louisiana; Coushatta Tribe of Louisiana; Eastern Band of Cherokee Indians; Eastern Shawnee Tribe of Oklahoma; Jena Band
National Park Service, Interior.
Notice; request for comments.
We (National Park Service, NPS) are asking the Office of Management and Budget (OMB) to approve the Information Collection Request (IC) described below. This collection is set to expire on March 31, 2016. The NPS is requesting approval of a previously approved collection and two additional new forms that will be used by the Institutional Animal Care and use Committee (NPS IACUC/the Committee) to collect information from researchers, and to ensure compliance with the Animal Welfare Act (AWA), its regulations (AWAR) and standards, and the Interagency Research Animal Committee (IRAC) principles, for projects involving the use of vertebrate animals in research, teaching, and training. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other federal agencies to take this opportunity to comment on this IC. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number.
To ensure that your comments on this ICR are considered, we must receive them on or before April 29, 2016.
Please direct all written comments on this ICR directly to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior, to
Aaron Smith, NPS IACUC Administrator by mail at Biological Resource Division, 1201 Oakridge Drive, Suite 200, Fort Collins, CO 80525 or
Under the provisions of the Animal Welfare Act, Interagency Research Animal Committee's U.S. Government Principles, and The
We again invite comments concerning this information collection on:
• Whether or not the collection of information is in accordance with the regulatory requirements;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
National Park Service, Interior.
Notice.
The Kamehameha Schools and University of Hawai'i at Hilo have completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and have determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Kamehameha Schools. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Kamehameha Schools, at the address in this notice by April 29, 2016.
Jason Jeremiah, Senior Manager, Cultural Resources, Community Engagement & Resources Group, Kamehameha Schools, 567 South King Street, Suite 200, Honolulu, HI 96813, telephone (808) 523-6200.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Kamehameha Schools and in the physical custody of the University of Hawai'i at Hilo. The human remains were removed from Pakini Iki, Ka'ū District, Hawai'i Island, Ka'ū District, Hawai'i Island.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the professional staff of Kamehameha Schools and University of Hawai'i at Hilo, in consultation with representatives of Aha Moku Advisory Committee; Department of Hawaiian Homelands; the Hawaiian Civic Club of Ka'ū; the Hawai'i Island Burial Council; Hui Malama i Nā Kūpuna o Hawai'i Nei; the Kamehameha Schools (Landowners and NHO); and the Office of Hawaiian Affairs.
Between 1955 and 1957, human remains representing, at minimum, two individuals were removed from Waiahukini Rockshelter Site in Ka'ū, Hawai'i Island, HI, which are on lands belonging to Kamehameha Schools (formerly Bishop Estate Trust). Excavations were under the direction of Professor William Bonk at the University of Hawai'i at Hilo (then called Hilo College) and the Bishop Museum. Three human teeth were identified in bags of midden deposit in the summer of 2014, which had been stored with the other excavated material from the site at University of Hawai'i at Hilo until the present time. No known individuals were identified. No funerary objects are present.
Although some historical era artifacts were identified in the uppermost layers of Waiahukini, the human remains were identified in midden deposits dated to the pre-Contact era.
These collections remain in the physical custody of University of Hawai'i at Hilo although control of the collections is with Kamehameha Schools.
Officials of the Kamehameha Schools and University of Hawai'i at Hilo have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Aha Moku Advisory Committee (Moku o Keawe), Hawaiian Civic Club of Ka'ū, Kamehameha Schools, and the Office of Hawaiian Affairs.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Jason Jeremiah, Senior Manager, Cultural Resources, Community Engagement & Resources Group, Kamehameha Schools, 567 South King Street, Suite 200, Honolulu, HI 96813, telephone (808) 523-6200, by April 29, 2016. After that date, if no additional requestors have come forward, transfer of control of the human remains to the Aha Moku Advisory Committee (Moku o Keawe), the Hawaiian Civic Club of Ka'ū, Kamehameha Schools, and the Office of Hawaiian Affairs may proceed.
The Kamehameha Schools and University of Hawai'i at Hilo is responsible for notifying the Aha Moku Advisory Committee; Department of Hawaiian Homelands; the Hawaiian Civic Club of Ka'ū Hawai'i Island Burial Council; Hui Malama i Nā Kūpuna o Hawai'i Nei; Kamehameha Schools (Landowners and NHO); and the Office of Hawaiian Affairs that this notice has been published.
National Park Service, Interior.
Notice.
The Sheriff's Office of Berrien County, MI has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Berrien County Sheriff's Office at the address in this notice by April 29, 2016.
Berrien County Sheriff's Office, Attention Chief Deputy Michael Bradley, 919 Port Street, Saint Joseph, MI 49085, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Berrien County Sheriff's Office. The human remains were removed from Galien River in New Buffalo, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
In April 2011, human remains representing, at minimum, one individual were removed from Galien River in Berrien County, MI. In early April of 2011 a minor was fishing in the Galien River in new Buffalo Township, MI. After casting into the center of the river the youth reeled in what appeared to be a large bone. The youth took the bone to his high school science teacher who contacted the Berrien County Sheriff's Office.
The Sheriff's Office's Dive Team responded by searching a section of the river approximately eight feet square, where they found additional skeletonized human remains. All of the human remains, including the original bone found by the minor, were transported to the Anthropology Department at Michigan State University and examined by Dr. Norman Sauer. The human remains were found to be “adult prehistoric Native American” of indeterminate gender, and returned to the Berrien County Sheriff's Office. No known individuals were identified. No associated funerary objects are present.
At the time of the excavation and removal of these human remains, the land from which the remains were removed was not the tribal land of any Indian tribe or Native Hawaiian organization.
Officials of the Berrien County Sheriff's Office have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on osteological evidence.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of The Consulted Tribes
• Pursuant to 43 CFR 10.11(c)(2)(i), the disposition of the human remains may be to The Consulted Tribes.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Berrien County Sheriff's Office, Attention Chief Deputy Michael Bradley, 919 Port Street, Saint Joseph, MI 49085, email
After that date, if no additional requestors have come forward, transfer of control of the human remains to The Consulted Tribes may proceed.
The Berrien County Sheriff's Office is responsible for informing The Consulted Tribes that this notice has been published:
On November 2, 2015, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Avi Weisfogel, D.D.S. (Registrant), of Old Bridge, New Jersey. GX 1, at 1. The Show Cause Order proposed the revocation of Registrant's Certificate of Registration BW6474580, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner, the denial of any application to renew or modify the registration, and the denial of any application for any other DEA registration, on the ground that he “do[es] not have authority to handle controlled substances in New Jersey, the [S]tate in which he is registered with the” Agency.
More specifically, the Show Cause Order alleged that Registrant entered into a consent order with the New Jersey State Board of Dentistry (Board), pursuant to which the Board revoked his license to practice dentistry effective November 13, 2014.
Having determined that Registrant was no longer practicing at his registered location, a Diversion Investigator obtained his residence address and initially attempted to serve the Show Cause Order on him by Certified Mail, Return Receipt Requested, which was addressed to him at his residence. GX 6, at 1-2 (Declaration of DI). However, the mailing was returned unclaimed. GX 3, at 1. Subsequently, on December 4, 2015, the DI mailed the Show Cause Order to Registrant's residence by regular first class mail. GX 6, at 2. The DI averred that the Order was not returned as undeliverable.
In its Request for Final Agency Action, the Government advises that neither Registrant, nor anyone representing him, has requested a hearing or sent any other correspondence to DEA. Request for Final Agency Action, at 6. Accordingly, the Government filed its Request for Final Agency Action seeking the revocation of Registrant's Registration along with the Investigative Record to support is Request.
Based on the Government's submission, I conclude that Registrant has received constitutionally adequate notice of the proceeding.
Registrant is the holder of DEA Certificate of Registration BW6474580, pursuant to which he is authorized to dispense controlled substances in schedules II through V, at the registered address of 30 State Highway 18, Old Bridge, NJ. GX 2. The registration does not expire until May 31, 2017.
Registrant previously held a dental license issued by the New Jersey State Board of Dentistry. GX 5, at 1. Registrant also previously held a New Jersey Controlled Dangerous Substance Registration (CDS). However, on November 13, 2014, Registrant entered into a Consent Order with the Board of Dentistry in which he agreed that his dental license “is hereby permanently retired [and this] is to be deemed a revocation of licensure.” GX 5, at 2. As for his New Jersey CDS Registration, it became inactive on the same date that Registrant entered into the Consent Order with the Board and has since expired. According to the online records of the State of New Jersey, as of the date of this Order, Registrant's New Jersey Dentist license remains revoked.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823, “upon a finding that the Registrant . . . has had his State license . . . suspended [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” Moreover, DEA has repeatedly held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined “the term `practitioner' [to] mean[ ] a . . . physician . . . or other person licensed, registered or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the Act, DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he practices his profession.
Because Registrant no longer holds authority to dispense controlled substances in New Jersey, the State in which he is registered with the Agency, I will order that his registration be revoked and that any pending application to renew or modify his registration be denied.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 21 CFR 0.100(b), I order that DEA Certificate of Registration BW6474580, issued to Avi Weisfogel, D.D.S., be, and it hereby is, revoked. I further order that any pending application of Avi Weisfogel, D.D.S, to renew or modify his
Office of Management and Budget.
Notice of public comment period.
The Office of Management and Budget (OMB) is seeking public comment on a draft memorandum titled, “
The 30-day public comment period on the draft memorandum begins on March 30, 2016.
Interested parties should provide comments at the following link:
Ms. Meredith Romley at
The Office of Management and Budget (OMB) and Office of Federal Procurement Policy are jointly proposing the third IT Category Management policy memorandum. This memo is required under the Federal Information Technology Oversight and Reform Act (FITARA). The memo seeks to improve the acquisition and management of mobile devices and services through consolidation of contracts, mandated use of one or more government-wide best-in-class contract solutions, improved demand management, and increased accountability of agency officials. Authority for this notice is granted under the Clinger-Cohen Act, 40 U.S.C. Subtitle III.
Anne Rung,
National Archives and Records Administration (NARA).
Notice of Advisory Committee Meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. app 2) and implementing regulation 41 CFR 101-6, NARA announces the following committee meeting.
The meeting will be held on April 14, 2016, from 10:00 a.m. to 12:00 p.m. EDT.
National Archives and Records Administration, 700 Pennsylvania Avenue NW., Archivist's Reception Room, Room 105, Washington, DC 20408.
Robert Tringali, Program Analyst, by mail at ISOO, National Archives Building; 700 Pennsylvania Avenue NW., Washington, DC 20408, by telephone number at (202) 357-5335, or by email at
The purpose of this meeting is to discuss National Industrial Security Program policy matters. The meeting will be open to the public. However, due to space limitations and access procedures, you must submit the name and telephone number of individuals planning to attend to the Information Security Oversight Office (ISOO) no later than Monday, April 11, 2016. ISOO will provide additional instructions for accessing the meeting's location.
National Archives and Records Administration (NARA).
Notice of Federal Advisory Committee Meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. App) and the second United States Open Government National Action Plan (NAP) released on December 5, 2013, NARA announces an upcoming Freedom of Information Act (FOIA) Advisory Committee meeting.
The meeting will be on April 19, 2016, from 10:00 a.m. to 1:00 p.m. EDT. You must register for the meeting by 5:00 p.m. EDT on April 18, 2016.
Christa Lemelin, Designated Federal Officer for this committee, by mail at National Archives and Records Administration; Office of Government Information Services; 8601 Adelphi Road—OGIS; College Park, MD 20740-6001, by telephone at 202-741-5773, or by email at
National Credit Union Administration (NCUA).
Notice and request for comment.
NCUA, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a reinstatement of a previously approved collection, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
Written comments should be received on or before May 31, 2016 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Dawn Wolfgang, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428; Fax No. 703-519-8579; or Email at
Requests for additional information should be directed to the address above.
The information collected is used by the NCUA to determine compliance with the appropriate sections of the NCUA Rules and Regulations and Federal Credit Union Act, which governs investment and deposit activities on the basis of safety and soundness concerns. It is used to determine the level of risk that exists within a credit union, the actions taken by the credit union to mitigate such risk, and helps prevent losses to federal credit unions and the National Credit Union Share Insurance Fund (NCUSIF).
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on March 23, 2016.
Nuclear Regulatory Commission.
Preliminary draft action plan; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment its preliminary draft action plan, “Integrated Action Plan to Modernize Digital Instrumentation and Controls Regulatory Infrastructure.” This preliminary draft action plan outlines the strategy and implementation milestones the NRC staff has identified in order to modernize the NRC's digital instrumentation and controls (I&C) regulatory infrastructure.
Submit comments by April 24, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Todd Keene, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1994; email:
Please refer to Docket ID NRC-2016-0068 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC-2016-0068 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is requesting public comments on a preliminary draft action plan in an effort to gain an understanding of stakeholder perspectives of the digital I&C regulatory challenges, priorities and potential solutions. The development of this action plan was directed by the Commission in SRM-15-0106 (February 25, 2016) (ADAMS Accession No. ML16056A614). In order to reach the widest audience, the action plan will be provided via email and posted on the NRC public Web site, as well as published in the
The NRC staff has developed the preliminary draft action plan to provide a strategy to modernize the digital I&C regulatory infrastructure in order to improve the predictability and consistency of the process for licensing and oversight of industry stakeholders. Improvements and modernization of the NRC's digital I&C regulatory processes will improve efficiency of the oversight of licensee implementation of digital I&C equipment.
This preliminary draft action plan has not been subject to all levels of NRC management review. Accordingly, it may be incomplete or in error in one or more respects and may be subject to further revision before the staff presents an action plan regarding an integrated strategy to modernize the NRC's digital instrumentation and controls regulatory infrastructure to the Commission in a SECY paper (currently scheduled to be provided to the Commission in May 2016).
Because of the schedule for development of the plan, the NRC will not issue a comment response document providing formal written responses to comments which are received.
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”).
Notice of application for an order under section 17(d) and section 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by section 17(d) and section 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit a business development company (“BDC”) and a closed-end management investment company to co-invest in portfolio companies with each other and with certain affiliated investment funds.
NexPoint Capital, Inc. (“NexPoint Capital”), NexPoint Credit Strategies Fund (“NHF”) (each of NexPoint Capital and NHF, an “Existing Investment Company” and collectively, the “Existing Investment Companies”), NexPoint Advisors, L.P. (“NexPoint Advisors”), Highland Multi Strategy Credit Fund, L.P. (“HMSCF”) and Highland Capital Healthcare Partners (Master), L.P. (“HCHP” and, collectively with HMSCF, the “Existing Private Funds”), Highland Capital Management, L.P., Highland Capital Healthcare Advisors, L.P. and Acis Capital Management, L.P. (each, a “Current Adviser to Private Funds” and, collectively, the “Current Advisers to Private Funds,” and, the Current Advisers to Private Funds collectively with the Existing Investment Companies, NexPoint Advisors and the Existing Private Funds, the “Applicants”).
The application was filed on March 6, 2015 and amended on August 28, 2015, December 21, 2015, March 11, 2016, and March 18, 2016.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on April 18, 2016, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F St. NE., Washington, DC 20549-1090.
Jill Ehrlich, Senior Counsel, at (202) 551-6819, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. NexPoint Capital, a Delaware corporation, is an externally managed, non-diversified, closed-end management investment company that has elected to be regulated as a BDC under the Act.
2. NHF, a Delaware statutory trust, is an externally managed, non-diversified, closed-end management investment company registered under the Act. NHF's investment objective is to generate current income and capital appreciation primarily through investments in: (i) Secured and unsecured floating and fixed rate loans; (ii) bonds and other debt obligations; (iii) debt obligations of stressed, distressed and bankrupt issuers; (iv) structured products, including but not limited to, mortgage-backed and other asset-backed securities and collateralized debt obligations; and (v) equities. NHF's board of trustees currently consists of six members, five of whom are not “interested persons” of NHF within the meaning of section 2(a)(19) of the Act (the “Independent Trustees”).
3. NexPoint Advisors, a Delaware limited partnership, is registered under the Investment Advisers Act of 1940 (“Advisers Act”) and is the investment adviser of NexPoint Capital and NHF.
4. The Existing Private Funds are entities formed under the laws of Delaware or under the laws of the Cayman Islands. In reliance on the exclusion from the definition of “investment company” provided by section 3(c)(1) or 3(c)(7) of the Act, neither of the Existing Private Funds will be registered under the Act. Highland Capital Management, L.P., registered as an investment adviser under the Advisers Act, serves as the investment adviser to HMSCF, and Acis Capital Management, L.P., registered as an investment adviser under the Advisers Act, serves as the investment sub-adviser to HMSCF. Highland Capital Healthcare Advisors, L.P., registered as an investment adviser under the Advisers Act, serves as the investment adviser to HCHP. NexPoint Advisors expects that certain portfolio companies that are appropriate investments for a Private Fund
5. Applicants seek an order (“Order”)
6. Each of the Investment Companies may, from time to time and as applicable, form a special purpose subsidiary (a “Wholly-Owned Investment Subsidiary”).
7. Applicants represent that the Adviser of another Investment Company or a Private Fund will refer to the Adviser of an Investment Company all Potential Co-Investment Transactions within such Investment Company's Objectives and Strategies
8. Other than pro rata dispositions and follow-on investments
9. With respect to the pro rata dispositions and follow-on investments provided in conditions 7 and 8, the Investment Companies may participate in a pro rata disposition or follow-on investment without obtaining prior approval of the Required Majority if, among other things: (i) The proposed participation of such Investment Company and each other Investment Company or Private Fund in such disposition or follow-on investment is proportionate to its outstanding investments in the issuer immediately preceding the disposition or follow-on investment, as the case may be; and (ii) the board of directors or board of trustees, as applicable, of the Investment Company has approved such Investment Company's participation in pro rata dispositions and follow-on investments as being in the best interests of the Investment Company. If such board does not so approve, any such disposition or follow-on investment will be submitted to the Investment Company's Eligible Directors. The board of directors or board of trustees, as applicable, of an Investment Company may at any time rescind, suspend or qualify its approval of pro rata dispositions and follow-on investments, with the result that all dispositions and/or follow-on investments must be submitted to the Eligible Directors of such Investment Company.
10. No Independent Director or Independent Trustee of an Investment Company will have a financial interest in any Co-Investment Transaction, other than indirectly through share ownership in the Investment Company.
11. Under condition 14, if NexPoint Advisors or its principals, or any person controlling, controlled by, or under common control with NexPoint Advisors or its principals, and the Private Funds (collectively, the “Holders”) own in the aggregate more than 25 percent of the outstanding voting shares of an Investment Company (the “Shares”), then the Holders will vote such Shares as directed by an independent third party when voting on matters specified in the condition. Applicants believe that this condition will ensure that the Independent Directors or Independent Trustees will act independently in evaluating the Co-Investment Program, because the ability of NexPoint Advisors or its principals to influence the Independent Directors or Independent Trustees by a suggestion, explicit or implied, that the Independent Directors or Independent Trustees can be removed will be limited significantly. Applicants represent that the Independent Directors or Independent Trustees shall evaluate and approve any independent third party, taking into account its qualifications, reputation for independence, cost to the shareholders, and other factors that they deem relevant.
1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit affiliated
2. Rule 17d-1, as made applicable to BDCs by section 57(i), prohibits any person who is related to a BDC in a manner described in section 57(b), acting as principal, from participating in, or effecting any transaction in connection with, any joint enterprise or other joint arrangement or profit-sharing plan in which the BDC is a participant, absent an order from the Commission. In passing upon applications under rule 17d-1, the Commission considers whether the company's participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
3. Applicants state that they expect that co-investment in portfolio companies by the Investment Companies and the Private Funds will increase favorable investment opportunities for each participant.
4. Applicants submit that the fact that the Required Majority will approve each Co-Investment Transaction before investment, and other protective conditions set forth in the application, will ensure that each Investment Company will be treated fairly. Applicants state that each Investment Company's participation in the Co-Investment Transactions will be consistent with the provisions, policies, and purposes of the Act and on a basis that is not different from, or less advantageous than, that of the other Investment Companies or the Private Funds.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Each time an Adviser considers a Potential Co-Investment Transaction for a Private Fund or another Investment Company that falls within an Investment Company's then-current Objectives and Strategies, the Investment Company's Adviser will make an independent determination of the appropriateness of such investment for such Investment Company in light of such Investment Company's then-current circumstances.
2. (a) If the applicable Adviser deems an Investment Company's participation in any Potential Co-Investment Transaction to be appropriate for such Investment Company, it will then determine an appropriate level of investment for such Investment Company;
(b) If the aggregate amount recommended by the applicable Adviser to be invested in such Potential Co-Investment Transaction by an Investment Company, together with the amount proposed to be invested by the other participating Investment Companies and Private Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, then the investment opportunity will be allocated among them pro rata based on each participating party's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each party. The applicable Adviser will provide the Eligible Directors of each participating Investment Company with information concerning each participating party's available capital to assist the Eligible Directors with their review of such Investment Company's investments for compliance with these allocation procedures; and
(c) After making the determinations required in conditions 1 and 2(a), the applicable Adviser will distribute written information concerning the Potential Co-Investment Transaction, including the amount proposed to be invested by each Investment Company and each Private Fund, to the Eligible Directors of each participating Investment Company for their consideration. An Investment Company will co-invest with one or more other Investment Companies and/or Private Funds only if, prior to the Investment Company's participation in the Potential Co-Investment Transaction, the Required Majority concludes that:
(i) The terms of the Potential Co-Investment Transaction, including the consideration to be paid, are reasonable and fair to such Investment Company and its stockholders and do not involve overreaching in respect of such Investment Company or its stockholders on the part of any person concerned;
(ii) the Potential Co-Investment Transaction is consistent with:
(A) The interests of the stockholders of such Investment Company; and
(B) such Investment Company's then-current Objectives and Strategies;
(iii) the investment by another Investment Company or any Private Fund would not disadvantage such Investment Company, and participation by such Investment Company would not be on a basis different from, or less advantageous than, that of any other Investment Company or Private Fund; provided, that if any other Investment Company or Private Fund, but not such Investment Company itself, gains the right to nominate a director for election to a portfolio company's board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event will not be interpreted to prohibit the Required Majority from reaching the conclusions required by this condition (2)(c)(iii), if
(A) The Eligible Directors will have the right to ratify the selection of such director or board observer, if any;
(B) the Advisers agree to, and do, provide periodic reports to each Investment Company's board of directors or board of trustees, as applicable, with respect to the actions of such director or the information received by such board observer or obtained through the exercise of any similar right to participate in the governance or management of the portfolio company; and
(C) any fees or other compensation that any other Investment Company, Private Fund or any affiliated person of another Investment Company or Private Fund receives in connection with the right of such other Investment Company or Private Fund to nominate a director or appoint a board observer or otherwise to participate in the governance or management of the portfolio company will be shared proportionately among the participating Private Funds (which each may, in turn, share their portion with their affiliated persons) and the participating Investment Companies in accordance with the amount of each party's investment; and
(iv) the proposed investment by the Investment Company will not benefit the other Investment Companies, the Advisers, the Private Funds or any affiliated person of any of them (other than the parties to the Co-Investment Transaction), except (A) to the extent permitted by condition 13; (B) to the extent permitted by sections 17(e) or 57(k) of the Act, as applicable; (C) indirectly, as a result of an interest in the securities issued by one of the parties to the Co-Investment Transaction; or (D) in the case of fees or other compensation described in condition 2(c)(iii)(C).
3. Each Investment Company has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The applicable Adviser will present to the board of directors or the board of trustees, as applicable, of each Investment Company, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Investment Companies and the Private Funds during the preceding quarter that fell within such Investment Company's then-current Objectives and Strategies that were not made available to such Investment Company and an explanation of why the investment opportunities were not offered to such Investment Company. All information presented to a board pursuant to this condition will be kept for the life of such Investment Company and at least two years thereafter, and will be subject to examination by the Commission and its staff.
5. Except for follow-on investments made in accordance with condition 8,
6. An Investment Company will not participate in any Potential Co-Investment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date and registration rights will be the same for each participating Investment Company and Private Fund. The grant to another participant, but not such Investment Company, of the right to nominate a director for election to a portfolio company's board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this condition 6, if conditions 2(c)(iii)(A), (B) and (C) are met.
7. (a) If any Investment Company or Private Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Investment Company that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii) formulate a recommendation as to participation by such Investment Company in any such disposition.
(b) Each Investment Company will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to any participating Private Funds and other participating Investment Companies.
(c) An Investment Company may participate in such disposition without obtaining prior approval of the Required Majority if: (i) The proposed participation of such Investment Company and of each other participant in such disposition is proportionate to its outstanding investment in the issuer immediately preceding the disposition; (ii) the board of directors or board of trustees, as applicable, of such Investment Company has approved as being in the best interests of such Investment Company the ability to participate in such dispositions on a pro rata basis (as described in greater detail in the application); and (iii) such board is provided on a quarterly basis with a list of all dispositions made in accordance with this condition. In all other cases, the applicable Adviser will provide its written recommendation as to an Investment Company's participation to the Eligible Directors of such Investment Company, and the Investment Company will participate in such disposition solely to the extent that the Required Majority determines that it is in the Investment Company's best interests.
(d) Each Investment Company and each other participant will bear its own expenses in connection with any such disposition.
8. (a) If any Investment Company or Private Fund desires to make a follow-on investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Investment Company that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii) formulate a recommendation as to the proposed participation, including the amount of the proposed follow-on investment, by such Investment Company.
(b) Such Investment Company may participate in such follow-on investment without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Investment Company and each Private Fund in such investment is proportionate to its outstanding investment in the issuer immediately preceding the follow-on investment; (ii) the board of directors or board of trustees, as applicable, of such Investment Company has approved as being in the best interests of such Investment Company the ability to participate in follow-on investments on a pro rata basis (as described in greater detail in the application); and (iii) such board is provided on a quarterly basis with a list of all follow on investments made in accordance with this condition. In all other cases, the applicable Adviser will provide its written recommendation as to such Investment Company's participation to the Eligible Directors, and such Investment Company will participate in such follow-on investment solely to the extent that the Required Majority determines that it is in such Investment Company's best interests.
(c) If with respect to any follow-on investment:
(i) The amount of the opportunity is not based on the Investment Companies' and the Private Funds' outstanding investments immediately preceding the follow-on investment; and
(ii) the aggregate amount recommended by the applicable Adviser to be invested by each Investment Company in the follow-on investment, together with the amount proposed to be invested by the participating Private Funds in the same transaction, exceeds the amount of the opportunity, then the
(d) The acquisition of follow-on investments as permitted by this condition will be considered a Co-Investment Transaction for all purposes and subject to the other conditions set forth in the application.
9. The Independent Directors or Independent Trustees, as applicable, of each Investment Company will be provided quarterly for review all information concerning Potential Co-Investment Transactions and Co-Investment Transactions, including investments made by the other Investment Companies and the Private Funds that the applicable Investment Company considered but declined to participate in, so that the Independent Directors or Independent Trustees, as applicable, may determine whether all investments made during the preceding quarter, including those investments which the applicable Investment Company considered but declined to participate in, comply with the conditions of the Order. In addition, the Independent Directors or Independent Trustees, as applicable, will consider at least annually the continued appropriateness for such Investment Company of participating in new and existing Co-Investment Transactions.
10. The Investment Companies will maintain the records required by section 57(f)(3) of the Act as if each of the Investment Companies were a business development company and as if each of the investments permitted under these conditions were approved by the Required Majority under section 57(f) of the Act.
11. No Independent Directors or Independent Trustees, as applicable, will also be a director, general partner, managing member or principal, or otherwise an “affiliated person” (as defined in the Act) of any Private Fund.
12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the 1933 Act) will, to the extent not payable by the Advisers under their respective advisory agreements with the Investment Companies and the Private Funds, be shared by the participating Investment Companies and the participating Private Funds in proportion to the relative amounts of the securities held or being acquired or disposed of, as the case may be.
13. Any transaction fee
14. If the Holders own in the aggregate more than 25 percent of the Shares of an Investment Company, then the Holders will vote such Shares as directed by an independent third party when voting on (1) the election of directors; (2) the removal of one or more directors; or (3) any other matter under either the Act or applicable state law affecting the Board's composition, size, or manner of election.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 6.2 to create a Reserve Market Maker Options Trading Permit (“Reserve OTP”). The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 6.2 to create a Reserve OTP.
Under the current NYSE Arca Fee Schedule (Fee Schedule),
The Exchange believes that an option should be available to Market Maker firms to address the short-term absence of an employee in a more economical way, which also would assist the Exchange in maintaining fair and orderly markets. Accordingly, the Exchange proposes new paragraph (i) to Rule 6.2 (Admission to and Conduct on the Options Trading Floor) to create a Reserve OTP. A Reserve OTP would permit an OTP Holder or OTP Firm to have a qualified MMAT employee cover for the absent Market Maker under the firm's OTP, effectively empowering the individual acting as a qualified MMAT to act as a Market Maker in lieu of the absent individual until such time as the absent Market Maker returns.
As proposed, when a Market Maker is or will be absent, an OTP Holder or OTP Firm that maintains a Reserve OTP would be required to provide written notice to the Exchange—at least one day in advance—that it will utilize such Reserve OTP (the “Notice”). The Notice would identify both the absent Market Maker (who will not be utilizing the Reserve OTP) and the MMAT who will be acting as the substitute Market Maker. While the Notice is in effect, only the specifically named MMAT acting as a substitute Market Maker will be authorized to utilize the OTP. When the original Market Maker returns, the OTP Holder or OTP Firm would provide written notice to the Exchange—at least one day in advance, and, as of the date specified in the notice, the original Market Maker may resume reliance on the OTP and the MMAT would no longer be able to utilize the OTP. In this manner, an OTP Holder or OTP Firm that has purchased the four OTPs required to quote every issue on the Exchange would have the ability to ensure it has sufficient Market Maker coverage in the event of an absence, without having to incur the full OTP fee, by instead paying a Reserve OTP fee of $175 per month, which would be established by a separate fee filing with the Commission.
Any natural person to whom a Reserve OTP is issued would be required, as of the date of notice, to (a) be fully qualified and approved by the Exchange to be an OTP Holder or OTP Firm authorized as an MMAT; and (b) meet all of the requirements of an OTP Holder or OTP Firm under the Exchange's rules.
The Exchange proposes to announce the implementation of the proposed rule change via Trader Update.
The Exchange believes that the proposed change is consistent with Section 6(b) of the Act,
Specifically, the Exchange believes that the proposed rule change would remove impediments to, and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest because it would provide a more cost-effective method for OTP Holders or OTP Firms to have fully qualified personnel step in to handle other employees' absences. As such, the proposed change would enable OTP Holders and OTP Firms to better utilize their personnel and resources, thereby contributing to fair and orderly markets.
The Exchange notes that the concept of a Reserve OTP is not new or novel and has been in place at other option exchanges for several years. For example, NYSE Amex Options implemented the concept in January 2012.
The Exchange does not believe that this proposed rule change would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change would relieve the burden on OTP Holders or OTP Firms when they have employees absent from the trading floor and would, in turn, improve the competitiveness of Exchange Market Makers and also promote competition for order flow among market participants and the options exchanges.
No written comments were solicited or received with respect to proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Arca Equities Rule 7.31P(h) (Orders and Modifiers) to add a new Discretionary Pegged Order. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend NYSE Arca Equites Rule 7.31P(h) (Orders and Modifiers) (“Rule 7.31P”) to add a new Discretionary Pegged Order. The proposed new order is based on the Discretionary Peg Order as proposed by Investors' Exchange, LLC (“IEX”) in its Form 1 Application seeking registration as a national securities exchange under Section 6 of the Act (“IEX Form 1 Application”).
As proposed, Rule 7.31P(h)(3) would provide that a Discretionary Pegged Order would be a Pegged Order
Proposed Rule 7.31P(h)(3)(A) would provide that Discretionary Pegged Orders would not be displayed, must be designated Day, and would be eligible to be designated for the Core Trading Session only. Accordingly, the proposed rule would provide that Discretionary Pegged Orders that include a designation for the Early Trading Session or Late Trading Session would be rejected. This proposed rule text is based on proposed IEX Rules 11.190(a)(10)(F) (a Discretionary Peg Order is eligible to trade only during IEX's Regular Market Session) and 11.190(a)(10)(H) (a Discretionary Peg Order is not eligible to display). Unlike IEX, the Exchange proposes that a Discretionary Pegged Order be Day time-in-force and not include any other time-in-force instruction. The descriptions set forth in proposed IEX Rule 11.190(a)(10)(A), (C), and (E) are set forth in current Rule 7.31P(h), which defines Pegged Orders as a Limit Order that does not route. Therefore, the Exchange proposes not to specify these requirements separately for the proposed Discretionary Pegged Order. Unlike IEX's proposed Discretionary Peg Order, the Exchange's proposed Discretionary Pegged Order would have to include a limit price.
Proposed Rule 7.31P(h)(3)(B) would provide that when exercising discretion, Discretionary Pegged Orders would maintain their time priority at their working price as Priority 3—Non-Display Orders and would be prioritized behind Priority 3—Non-Display Orders with a working price equal to the discretionary price of a Discretionary Pegged Order at the time of execution. If multiple Discretionary Pegged Orders are exercising price discretion during the same book processing action, they would maintain their relative time priority at the discretionary price. This proposed rule text is based on the last two full sentences of proposed IEX Rule 11.190(a)(10), with non-substantive differences to use Pillar terminology to describe the relative ranking and priority of Discretionary Pegged Orders.
Proposed Rule 7.31P(h)(3)(C) would provide that a Discretionary Pegged Order would be eligible to exercise price discretion to its discretionary price, except during periods of quote instability, as specified in proposed Rule 7.31P(h)(3)(D). Proposed Rule 7.31P(h)(3)(C)(i) would provide that if the Corporation
Proposed Rule 7.31P(h)(3)(D) would set forth how the Exchange would determine quote stability,
The Exchange would determine quote instability or a crumbling quote when the following factors occur:
• The PBB and PBO are the same as the PBB and PBO one (1) millisecond ago (proposed Rule 7.31P(h)(3)(D)(i)(A)); and
• the PBBO spread is less than or equal to the thirty (30) day median PBBO spread during the Core Trading Session (proposed Rule 7.31P(h)(3)(D)(i)(B)); and
• there are more protected quotations on the far side,
• the quote instability factor result from the quote stability calculation is greater than the defined quote instability threshold (proposed Rule 7.31P(h)(3)(D)(i)(D).
The Exchange proposes that the quote stability calculation used to determine the current quote instability factor would be defined by the following formula that utilizes the quote stability coefficients and quote stability variables defined below:
(See proposed Rule 7.31P(h)(3)(D)(i)(D)(1)).
As set forth in proposed Rule 7.31P(h)(3)(D)(i)(D)(1)(a), the Exchange proposes to utilize the values below for the quote stability coeffecients:
As set forth in proposed Rule 7.31P(h)(3)(D)(i)(D)(1)(b), the Exchange proposes to utilize the following quote stability variables to calculate the current quote instability factor: (i) N = the number of protected quotations on the near side of the market,
As set forth in proposed Rule 7.31P(h)(3)(D)(i)(D)(2), the Exchange proposes to utilize a quote instability threshold of 0.32. Finally, as set forth in proposed Rule 7.31P(h)(3)(D)(i)(D)(3), the Exchange reserves the right to modify the quote instability coeffecients or quote instability threshold at any time, subject to a filing of a proposed rule change with the SEC.
Because of the technology changes associated with this proposed rule change, the Exchange will announce by Trader Update the implementation date.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
Specifically, the Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system by promoting transparency in Exchange rules by adopting a new order type that is designed to exercise discretion in order to provide price improvement to contra-side orders. Similar to how MPL Orders operate, the Discretionary Pegged Order is designed to be a non-displayed order that could execute at the midpoint of the PBBO, and thus would enhance order execution opportunities at the Exchange that provide price improvement opportunities over the PBBO. However, unlike an MPL Order, the Exchange would monitor the quality of the PBBO to assess whether a Discretionary Pegged Order would be eligible to exercise its discretion. As proposed, the Exchange would use a mathematical calculation (the “quote instability calculation”) to assess the probability of an imminent change to the current PBB to a lower price or the PBO to a higher price for a particular security (“quote instability factor”). When the quoting activity meets predefined criteria and the quote instability factor calculated is greater than the Exchange's proposed threshold (“quote instability threshold”), the Exchange would treat the quote as not stable (“quote instability” or “crumbling quote”).
The Exchange believes that using the proposed quote instability calculation to determine quote instability would remove impediments to and perfect the mechanism of a free and open market and a national market system because the Exchange would be monitoring the PBBO on behalf of its members in an objective and transparent manner to assess the quality of the PBBO and whether it is appropriate for a Discretionary Pegged Order to exercise its discretion. The Exchange further believes that it would remove impediments to and perfect the mechanism of a free and open market and a national market system for the Exchange to monitor the quote stability because it would assist ETP Holders in obtaining best execution for their
As discussed above, the proposed rule change is based on the proposed rules of IEX, which has not yet been approved as a registered securities exchange. In a letter commenting on IEX's Form 1 Application, the Exchange previously stated that it did not oppose IEX's proposed quote instability feature, but noted that it offers a feature typically performed by broker-dealers.
To this end, the Exchange believes that the proposed rule change would achieve efficiency and cost savings for market participants that rely on the Exchange to manage the price-discovery process on their behalf because it presents an option for ETP Holders to have the Exchange monitor the quality of the PBBO. Specifically, the Discretionary Pegged Order will be an option to assist market participants to achieve best execution on behalf of their customers by reducing the potential to execute at a stale price. The manner by which the Exchange would monitor the quality of the quote would be objective and transparent, as specified in proposed Rule 7.31P(h)(3)(D). Market participants that use the Discretionary Pegged Order would thus be able to serve their customers better, thereby protecting investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed Discretionary Pegged Order and related quote instability would promote competition because it is based on the proposed rules of IEX, which would implement the Discretionary Peg Order and related quote instability if approved as a registered securities exchange under Section 6 of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
81 FR 17225, March 28, 2016.
Wednesday, March 30, 2016 at 10 a.m.
The Open Meeting scheduled for Wednesday, March 30, 2016 at 10 a.m., has been changed to Wednesday, April 13, 2016 at 10 a.m.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
March 25, 2016.
On December 23, 2013, the Securities and Exchange Commission (“Commission”) issued an order pursuant to its authority under Rule 612(c) of Regulation NMS (“Sub-Penny Rule”)
The Exchange now seeks to extend the exemption until August 31, 2016.
The limited and temporary exemption extended by this Order is subject to modification or revocation if at any time the Commission determines that such action is necessary or appropriate in furtherance of the purposes of the Securities Exchange Act of 1934. Responsibility for compliance with any applicable provisions of the Federal securities laws must rest with the persons relying on the exemption that is the subject of this Order.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 3, 2012, the Securities and Exchange Commission (“Commission”) issued an order pursuant to its authority under Rule 612(c) of Regulation NMS (“Sub-Penny Rule”)
The Exchanges now seek to extend the exemptions until August 31, 2016.
The limited and temporary exemptions extended by this Order are subject to modification or revocation if at any time the Commission determines that such action is necessary or appropriate in furtherance of the purposes of the Securities Exchange Act of 1934. Responsibility for compliance with any applicable provisions of the Federal securities laws must rest with the persons relying on the exemptions that are the subject of this Order.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to May 31, 2016.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to U.S. Department of State, PPT Forms Officer, 44132 Mercure Cir., P.O. Box 1227, Sterling, Virginia 20166-1227, who may be reached on 202-485-6538 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to May 31, 2016.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to U.S. Department of State, PPT Forms Officer, 44132 Mercure Cir., P.O. Box 1227, Sterling, Virginia 20166-1227, who may be reached on 202-485-6538 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The information collected on the DS-3053 is used to facilitate the issuance of passports to U.S. citizens and nationals under the age of 16. The primary purpose of soliciting the information is to ensure that both parents and/or all guardians consent to the issuance of a passport to a minor under age 16, except where one parent has sole custody or there are exigent or special family circumstances.
Passport Services collects information from parents or legal guardians of U.S. citizens and non-citizen nationals minors when they complete and submit the Statement of Consent or Special Circumstances: Issuance of a Passport to a Minor under Age 16. Passport applicants can either download the DS-3053 from the internet or obtain one from an Acceptance Facility/Passport Agency. The form must be completed, signed, and submitted along with the applicant's DS-11, Application for a U.S. Passport.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to
You may submit comments by any of the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Taylor Mauck, who may be reached on 202-485-7635 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs (OES), Office of Marine Conservation announces that the Advisory Panel to the U.S. Section of the North Pacific Anadromous Fish Commission will meet on May 9th, 2016.
The meeting will take place via teleconference on May 9th, 2016 from 2 p.m. to 3 p.m. Eastern time.
Elana Katz-Mink, Office of Marine Conservation, OES, Room 2758, U.S. Department of State, 2201 C Street NW., Washington, DC 20520. Telephone (202) 647-1073, fax (202) 736-7350, email address
In accordance with the requirements of the Federal Advisory Committee Act, notice is given that the Advisory Panel to the U.S. Section of the North Pacific Anadromous Fish Commission (NPAFC) will meet on the date and time noted above. The panel consists of members from the states of Alaska and Washington who represent the broad range of fishing and conservation interests in anadromous and ecologically related species in the North Pacific. Certain members also represent
Surface Transportation Board.
Notice of Rail Energy Transportation Advisory Committee meeting.
Notice is hereby given of a meeting of the Rail Energy Transportation Advisory Committee (RETAC), pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 2 10(a)(2).
The meeting will be held on Friday, April 15, 2016, at 9:00 a.m. C.D.T.
The meeting will be held at the BNSF Railway Corporate Headquarters at 2650 Lou Menk Drive, Fort Worth, Texas 76131-2830. Members of the public who wish to attend are encouraged to contact Katherine Bourdon (see contact information below) in advance to avoid delays in security processing on the day of the meeting.
Katherine Bourdon (202) 245-0285;
RETAC was formed in 2007 to provide advice and guidance to the Board, and to serve as a forum for discussion of emerging issues related to the transportation of energy resources by rail, including coal, ethanol, and other biofuels,
The meeting, which is open to the public, will be conducted in accordance with the Federal Advisory Committee Act, 5 U.S.C. app. 2; Federal Advisory Committee Management regulations, 41 CFR pt. 102-3; RETAC's charter; and Board procedures. Further communications about this meeting may be announced through the Board's Web site at
Written Comments: Members of the public may submit written comments to RETAC at any time. Comments should be addressed to RETAC, c/o Katherine Bourdon, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001 or
49 U.S.C. 1321, 49 U.S.C. 11101; 49 U.S.C. 11121.
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice of final policy.
This final policy establishes the procedures and processes to petition the Secretary under the Airport and Airway Improvement Act 49 U.S.C. 47106(c)(1)(A)(ii). The Federal Aviation Administration (FAA) issued guidance on the procedures and process to petition the Secretary under 49 U.S.C. 47106(c)(1)(A)(ii) in the
By
In 1982, Congress enacted the Airport and Airway Improvement Act (AAIA) (Pub. L. 97-248). Relevant portions of the AAIA are codified in 49 U.S.C. Chapter 471, Subchapter I, Airport Improvement. The AAIA, among other items, established the current-day Airport Improvement Program (AIP) that is administered by the FAA's Office of Airports. Through the AIP, the FAA provides grants to public agencies—and, in limited cases, to private airport owners and operators—for the planning and development of public-use airports that are included in the National Plan of Integrated Airport Systems (NPIAS). The current AIP program built on earlier grant programs that are funded through a variety of user fees and fuel taxes. For more information on the history of the AIP and predecessor grant programs, see
The AAIA also provides certain prerequisites and conditions that an airport sponsor must meet in order to be eligible for consideration of AIP funding. In 1992, Congress amended various provisions of the AAIA with the Airport and Airway Safety, Capacity, Noise Improvement, and Intermodal Transportation Act, Public Law 102-581. Section 113(b), Public Access and Participation with Respect to Airport
(ii) the sponsor of the project certifies to the Secretary that the airport management board either has voting representation from the communities where the project is located or has advised the communities that they have the right to petition the Secretary concerning a proposed project.
The Secretary of the U.S. Department of Transportation has delegated the responsibility to respond to a petition under Section 47106 to the Administrator of the FAA, 49 CFR 1.83(a)(9). The Administrator has further delegated the authority to administer this provision to the Associate Administrator for the Office of Airports (ARP-1). Order 1100.154A.
After receiving a small number of submissions under this provision, the Associate Administrator for the Office of Airports has determined it would be helpful and appropriate to provide the public with more guidance on the procedures and processes associated with this provision:
The Secretary may approve an application under this subchapter for an airport development project involving the location of an airport or runway or a major runway extension only if the sponsor certifies to the Secretary that the airport management board has voting representation from the communities in which the project is located or has advised the communities that they have the right to petition the Secretary about a proposed project[.]
The Secretary of the U.S. Department of Transportation has delegated the responsibility to respond to a petition under Section 47106 to the Administrator of the FAA. Accordingly, any petition under this statutory provision should be addressed to the Associate Administrator for the Office of Airports, 800 Independence Avenue SW., Washington, DC 20591.
The statute does not prescribe any specific format for the submission of a petition. The petition should be a concise statement describing the project to which the petitioner objects, and clearly indicating the petitioner's specific objection to the project. The petition must also include a description of the result the petitioner is seeking. The petition should normally not exceed ten (10) pages. Upon application from the petitioner, the Secretary will consider extending the length of a petition for a large, complex project. Petitions must be legible and must be signed by the petitioner(s), who must be a duly authorized representative(s) of the community (see Section III.D.4 of this
A petition filed under section 47106(c)(1)(A)(ii) should be filed only after the Airport Sponsor notifies a community of its right to file a petition.
Petitions to the Secretary pursuant to Section 47106(c)(1)(A)(ii) must be submitted within thirty (30) days after the FAA gives notice that the sponsor has presented evidence that the requirements of Section 47106(c)(1)(A)(ii) have been fulfilled. Although the environmental analysis and the grant decisions are separate processes and decisions, grant-related findings that are preconditions of issuing a grant are often made in the environmental Record of Decision (ROD). Typically, the FAA demonstrates that the sponsor has satisfied the requirements of Section 47106(c)(1)(A)(ii) in its Final Environmental Impact Statement (FEIS). Generally, the FEIS will contain a certification from the Airport Sponsor either that each community in which the project is located has a voting member on its airport management board, or that each community in which the project is located has been advised of its right to petition the Secretary. Normally the Airport Sponsor will have notified each of the communities prior to the publication of an FEIS, allowing communities at least 30 days to prepare and file a petition.
For purposes of Section 47106(c)(1)(A)(ii), location of an airport means approval of an airport at a location where no airport exists. This definition is consistent with the definition of the term airport location approval found in FAA Order 5050.4B, National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions (April 2006). Order 5050.4B defines airport location approval as approval of a new public use airport at a location where no airport exists. (Order 5050.4B, ¶¶ 9.p and 203). In interpreting Section 47106(c)(1)(A)(ii), it is appropriate to be consistent with other FAA interpretations of similar terms. Defining the term location of an airport consistently with the definition in the most current version of Order 5050.4B avoids confusion that could be caused by applying different definitions depending on the circumstances of the inquiry.
While other FAA documents have referred to the location of a runway, none have defined the term. Because the term is similar to the term “location of an airport,” it is appropriate to define the terms in a similar manner. For purposes of Section 47106(c)(1)(A)(ii), location of a runway refers to decisions approving the site of a new or relocated runway where a runway does not currently exist.
Order 5050.4B defines a major runway extension as one that creates a significant impact to an affected environmental resource (including noise), or one that permanently removes
The term community is not defined in the statute. In the enabling legislation, this provision was entitled “Public Participation With Respect to Airport Projects.” The term “community” will be defined as a jurisdictional authority, that is, a political subdivision of a state, such as a town, township, city, or county. Defining community as a jurisdictional authority is consistent with the context of Section 47106(c). For example, in subsection (A)(i) the statute speaks of “objectives of any planning that the community has carried out.” Typically, only political subdivisions of a state, such as those described above, would have planning authority. Similarly, in the FAA's experience, only a jurisdictional authority or political subdivision would be considered for voting representation on the airport's governing authority. It is only in the absence of such voting representation of a jurisdictional authority or political subdivision that the statute provides the opportunity to petition the Secretary.
Defining community as a jurisdictional authority or political subdivision is also consistent with the definition of community in Order 5050.4B, ¶1203(b)(1).
Accordingly, only a political subdivision of a state that enjoys general jurisdiction, or a Tribal government meets the definition of community in this context. Political subdivisions of a state that have a specific, substantive authority, such as water districts or school districts, do not adequately represent the interests of the community at large. They are not required to balance the interests of the whole community on a wide range of issues. Rather, they seek to promote their specific substantive interest. Additionally, water districts or school districts would not normally be invited to sit on an airport management board. Thus, only a political subdivision of a state which enjoys general jurisdiction is a community entitled to file a petition under Section 47106(c)(1)(A)(ii).
Finally, under the statute, a community is only eligible to petition under Section 47106(c)(1)(A)(ii) if the project is located in the community. If land is disturbed in the community, then the project is considered to be located in that community. The courts have also provided instruction on when a project is located in a community. In
There are currently ten states that participate in the FAA's State Block Grant Program (SBGP). Under the program, the State agency (usually the aviation division of the state Department of Transportation) assumes responsibility for administering AIP grants for non-primary airports (including several categories of AIP funds). See 49 U.S.C. Section 47128. As part of the responsibility, the state assumes various responsibilities for the FAA including reviewing and approving proposed changes to the Airport Layout Plan (ALP) and compliance with the National Environmental Policy Act (NEPA).
The FAA interprets 49 U.S.C. Section 47106(c)(1)(A)(ii) as not being generally applicable to a project approved and administered as part of a state block grant. The plain language of this statutory provision states that this Section is triggered when a proponent submits a project grant application to the FAA. In the case of the SBGP, no such request is made because most of the funds are given to the states as a block (except for AIP Discretionary funds), and the state assumes responsibility for administering those funds. Participants in the SBGP are required to engage communities according to FAA guidance and to circulate the draft EA if warranted. However, in cases where the project may involve a request for AIP Discretionary funding, or other extraordinary circumstances, the FAA may determine that a community meeting the requirements set forth herein may have the right to petition the Secretary in connection with an AIP grant. Petitions involving a SBGP project must include facts describing the extraordinary circumstances that they believe justify the Secretary entertaining the petition.
The FAA will provide a written response to a petition to the Secretary. The FAA may respond by outlining the issues raised in the petition and providing its responses either within the environmental ROD, or it may elect to respond in a separate document.
49 U.S.C. 47106(c)(1)(A)(ii), 14 CFR part 1.
Federal Highway Administration (FHWA), DOT.
Notice of request for approval of a new information collection.
The FHWA has forwarded the information collection request described in this notice to the Office of Management and Budget (OMB) for approval of a new information collection. We published a
Please submit comments by April 29, 2016.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and
Michael Nesbitt (
Under the “National Transportation Performance Management (TPM) Implementation Review Survey, TPM State-of-Practice Questionnaires, and TPM Toolbox” information collection request (ICR), the FHWA will collect information on the current state of the practice, data, methods, and systems used by State, metropolitan, regional, local, and/or tribal transportation entities to support their TPM processes in accordance with 23 U.S.C. 119, 134-135, and 148-150, as amended by MAP-21 and the FAST Act. This information will also be used to develop and deliver existing and future Federal Highway Programs through successful partnerships, value-added stewardship, and risk-based oversight. Underpinning this effort will be a robust focus on improving FHWA and its partners' capacity to implement performance provisions. The information collected from these activities will translate into having a better skilled workforce, effective supporting systems, and clearly articulated programs that are optimally positioned and equipped to deliver the FHWA's mission. In general, the components of the “National TPM Implementation Review Survey, TPM State-of-Practice Questionnaires, and TPM Toolbox” will involve questions related to:
1. TPM related implementation efforts, programs, and activities,
2. Needs for TPM guidance and policy concerning MAP-21 and FAST provisions;
3. TPM capacity building needs;
4. Effectiveness implementing performance based planning and programming and TPM processes.
The most consequential activity covered by this ICR is the “National TPM Implementation Review Survey,” which is scheduled to be administered in 2016 and again several years later.
In the summer of 2015, the Federal Highway Administration (FHWA) published the National TPM Implementation Review Survey and Information Collection Request, Docket FHWA-2015-0013. In that 60-day
1. FHWA and its partners' progress implementing MAP-21 performance provisions and related TPM best practices; and
2. The effectiveness of performance-based planning and programming processes and transportation performance management.
In that FRN, FHWA also stated that a second National TPM Implementation Review Survey will be conducted several years after the first to assess FHWA and its partners' progress in addressing any gaps or issues identified during the first survey. The findings from the first review survey will be used in a pair of statutory reports to Congress due in 2017 on the effectiveness of performance-based planning, programming processes, and transportation performance management (23 U.S.C. 119, 134(l)(2), and 135(h)(2)). The findings from the second survey will be used in a subsequent follow-up report. It is important to note that this is not a compliance review. The overall focus of the National TPM Implementation Review Survey is on the TPM and performance-based planning processes and practices used by STAs and MPOs, not the performance outcomes of those processes.
FHWA received 20 comment letters and over 24 unique comments. While a number of concerns were expressed by the commenters, they generally supported the information collection request outlined in the FRN. Regarding the National TPM Implementation Review Survey, stakeholders were most concerned about the estimated burden of effort and time for administration of the survey. Based on those specific comments to the docket, it became clear that a majority of responding States, MPOs, and their respective associations want FHWA to: (1) “coordinate with stakeholders when developing” the design of any TPM surveys, questionnaires, or related instruments; (2) Provide more information on the type of questions to be asked as part of the National TPM Implementation Review Survey and any State-of-Practice Questionnaires; (3) Minimize the burden of effort to the greatest extent practicable; (4) Delay administration of National TPM Implementation Review Survey until after the final rulemakings; and (5) Share data from the National TPM Implementation Review Survey with States, MPOs, and their respective associations to support the development of federally and state funded TPM capacity building efforts.
To address the first three concerns listed in the preceding paragraph, stakeholders can provide input on the design of National TPM Implementation Review Survey by:
1. Submitting comments on the draft survey questions and survey design report to the docket.
2. Participating in one of two webinar listening sessions on the design of the National TPM Implementation Review Survey. The date and time of these webinars will be advertised at
To address the concern on the timing of the National TPM Implementation Review Survey, FHWA decided to delay administering the review until after publication of the
In addition to the more formal National TPM Implementation Review Survey, FHWA will conduct informal voluntary TPM State-of-Practice Questionnaires related to ongoing TPM policy and guidance, technical assistance, and capacity needs. To address concerns expressed by stakeholders regarding the burden of effort and administration of these additional questionnaires, FHWA is proposing to sequence the National TPM Implementation Review Survey and other State-of-the-Practice Questionnaires on a biennial cycle. Under this biennial cycle, the first National TPM Implementation Review Survey would be administered in 2016 and the follow-up in 2020. The smaller, less formal State-of-the-Practice Questionnaires would be administered in 2018 and 2022. The State-of-the-Practice Questionnaires are essential to helping FHWA coordinate with its many stakeholders to reduce duplicative survey efforts as the industry works to implement and understand the TPM practices.
Under this sequencing, the National TPM Implementation Review Survey will continue to serve the original purpose of allowing FHWA to evaluate the effectiveness of efforts to implement TPM and PBPP. The State-of-the-Practice Questionnaires will enable FHWA and its stakeholders to coordinate the collection of information necessary to advance the state-of-the-practice and further TPM capacity building efforts. This approach limits the number of TPM related surveys to 4 over a number of years:
• National TPM Implementation Review Survey (
• State-of-the-Practice Questionnaires: 2018.
• National TPM Implementation Review Survey (
• State-of-the-Practice Questionnaires: 2022.
After each survey or questionnaire, FHWA and its stakeholders will explore how to better align the information collection requests with yet-to-be determined performance management reporting processes. The information will be collected from State, metropolitan, regional, local, and/or tribal transportation agencies via internet-based questionnaires or web applications and will be used to help FHWA and its partner organizations do the following:
• Strategically plan to meet ever growing demand for TPM technical assistance needs;
• Develop and refine TPM policy and guidance based on stakeholder feedback;
• Channel resources to meet capacity development and training needs; and
• Identify and prioritize TPM research needs.
Lastly, as part of FHWA's ongoing technical assistance efforts, a TPM Toolbox is being created to help FHWA's partners self-assess and benchmark their TPM implementation progress, capabilities, and gaps. The TPM Toolbox will also help FHWA streamline the integration and administration of all the efforts described above. To maximize the effectiveness and efficiency of the TPM Toolbox, FHWA will collect business contact and organizational demographic (size of organization, location, etc.) information along with the responses submitted as part of the TPM Toolbox's self-assessment applications.
The aggregated associated salary cost to all respondents (975) during a survey year is estimated to be $1,032,213 based on an average salary of $38 per hour (approximately $79,000 per year) for professional staff and $18 per hour (approximately $37,000 per year) for clerical staff. Disaggregated, the total average annual cost per respondent during a survey year is estimated to be $1,058.68. The burden hours and costs are illustrated below.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
This document announces a decision by the National Highway Traffic Safety Administration that certain model year (MY) 2014 Mercedes-Benz SLK Class passenger cars (PCs) that were not originally manufactured to comply with all applicable Federal Motor Vehicle Safety Standards (FMVSS) are eligible for importation into the United States because they are substantially similar to vehicles originally manufactured for sale in the United States and certified by their manufacturer as complying with the safety standards (the U.S. certified version of the MY 2014 Mercedes-Benz SLK Class PC), and they are capable of being readily altered to conform to the standards.
This decision became effective on March 25, 2016.
For further information contact George Stevens, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified as required under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
J.K. Technologies, LLC, of Baltimore, Maryland (JK) (Registered Importer# RI-90-006), petitioned NHTSA to decide whether MY 2014 Mercedes-Benz SLK Class PCs are eligible for importation into the United States. NHTSA published a notice of the petition on February 16, 2016 (81 FR 7889) to afford an opportunity for public comment. No comments were received in response to this petition. The reader is referred to the receipt notice for a thorough description of the petition.
NHTSA has reviewed the petition and has concluded that the vehicles covered by the petition are substantially similar to MY 2014 Mercedes-Benz SLK Class PC's and are capable of being readily altered to comply with all applicable FMVSS.
NHTSA has also determined that any RI who imports or modifies one of these vehicles must include in the statement of conformity and associated documents (referred to as a “conformity package”) it submits to NHTSA under 49 CFR 592.6(d) additional specific proof to confirm that the vehicle was manufactured to conform to, or was successfully altered to conform to, FMVSS No. 101,
In addition to the information specified above, each conformity package must also include evidence showing how the RI verified that the changes it made in loading or reprograming vehicle software to achieve conformity with each separate FMVSS, did not also cause the vehicle to fall out of compliance with any other applicable FMVSS.
Accordingly, on the basis of the foregoing, NHTSA hereby decides that MY 2014 Mercedes-Benz SLK Class passenger cars that were not originally manufactured to comply with all applicable FMVSS, are substantially similar to MY 2014 Mercedes-Benz SLK Class passenger cars manufactured for importation into and/or sale in the United States, and certified under 49 U.S.C. 30115, and are capable of being readily altered to conform to all applicable Federal Motor Vehicle Safety Standards.
The importer of a vehicle admissible under any final decision must indicate on the form HS-7 accompanying entry the appropriate vehicle eligibility number indicating that the vehicle is eligible for entry. VSP-581 is the vehicle eligibility number assigned to vehicles admissible under this notice of final decision.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
General Motors, LLC, (GM) has determined that certain model year (MY) 2014 GMC Sierra Denali vehicles do not fully comply with paragraph S3.1.4 of Federal Motor Vehicle Safety Standard (FMVSS) No. 102,
For further information on this decision contact John Finneran, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration (NHTSA), telephone
I.
Notice of receipt of GM's petition was published, with a 30-Day public comment period, on May 22, 2014 in the
II.
III.
IV.
S3.1.4 Identification of shift positions and of shift position sequence . . .
S3.1.4.1 Expect as specified in S3.1.4.3, if the transmission shift position sequence includes a park position, identification of shift positions, including the positions in relation to each other and the position selected, shall be displayed in view of the driver whenever any of the following conditions exist:
(a) The ignition is in a position where the transmission can be shifted; or
(b) The transmission is not in park . . .
S3.1.4.3 Such information need not be displayed when the ignition is in a position that is used only to start the vehicle . . .
V.
1. GM believes that the condition is extremely unlikely to occur. For the condition to occur, the instrument cluster design input rate must be exceeded. This can only happen under extreme load conditions. For example, GM was able to create the condition in the laboratory by simultaneously inputting a series of warnings into the cluster during an active search of a media device connected to the vehicle while a Bluetooth® connected phone call is received by the vehicle.
2. GM states that any disruption of the PRNDM display as a result of this condition is very brief. In the unlikely event the condition were to occur and the instrument cluster resets, the PRNDM display would be restored within 1.3 seconds. This momentary reset would be a clear indication to the driver that service may be required.
3. GM also believes that the condition has little effect on the normal operation of the vehicle. While the operation of the instrument panel is briefly affected by the underlying condition, none of the other vehicle operations are affected.
4. GM states that the condition is extremely remote and not likely to occur during shifting. Considering the unusual combination of pre-conditions for the condition to occur, it is very unlikely the brief disruption of the PRNDM display would occur when it is needed,
5. GM is not aware of any reported instrument cluster resets as a result of the subject noncompliance.
6. GM also expressed its belief that for previous noncompliances that GM believes were similar, NHTSA granted petitions for inconsequential noncompliance.
GM has additionally informed NHTSA that it has corrected the noncompliance so that all future production vehicles will comply with FMVSS No. 102.
In summation, GM believes that the described noncompliance of the subject vehicles is inconsequential to motor vehicle safety, and that its petition, to exempt GM from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
GM states that the disruption of the PRNDM as a result of this condition is very brief and in the unlikely event the condition where to occur and the instrument cluster resets, the PRNDM display would be restored within 1.3 seconds. GM also noted that while the operation of the instrument panel would be briefly affected by the underlying condition, no other vehicle operations are affected.
After receipt of GM's petition, NHTSA requested more information regarding the subject noncompliance. GM submitted videos showing that when the condition occurs any existing warning lights extinguish, the indicators (gauges) drop to zero, and operation of the entire instrument panel is interrupted. Specifically, any illuminated telltales extinguish for approximately 1.3 seconds before a bulb check that lasts approximately five seconds is initiated. At the conclusion of the bulb check any previously illuminated telltales will illuminate and remain illuminated.
NHTSA agrees with GM that if the instrument panel reset were to happen it would only be a momentary condition, the instrument panel telltales and indicators would extinguish and return to normal very quickly, with little, if any, impact to the driver.
GM mentioned two previous petitions that the agency granted due to the loss or failure of telltale indications. In the first petition,
In the second petition, submitted by Nissan,
Advocates for Highway and Auto Safety (Advocates), provided comments about GM's petition in response to the petition receipt notice published in the
Finally, GM states that they are not aware of any reported instrument cluster resets as a result of the subject condition.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject noncompliant vehicles that GM no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after GM notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: Delegations of authoriy at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Chrysler Group LLC (Chrysler)
For further information on this decision contact John Finneran, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5289, facsimile (202) 366-5930.
Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule implementing those provisions at 49 CFR part 556), Chrysler has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
Notice of receipt of Chrysler's petition was published, with a 30-Day public comment period, on June 19, 2014 in the
Affected are approximately 3,447 MY 2013 and 2014 Fiat brand, 500e model, passenger cars manufactured between March 21, 2013 and February 11, 2014 at Chrysler's Toluca Assembly Plant.
Chrysler explains that the noncompliance is that the low tire pressure indicator telltale installed on the subject vehicles is orange in color rather than yellow as required by paragraph S5.4.1 of FMVSS No. 101.
Paragraph S5.4 of FMVSS No. 101 requires in pertinent part:
Chrysler stated that in the FMVSS No. 138 Final Rule (
Chrysler's reasoning in support of the position is as follows:
• For the subject vehicles, if the TPMS telltale is illuminated and the operator does not understand its meaning, the TPMS telltale graphic is shown and described in the
• In the event there is significant under-inflation of tires, the TPMS telltale is illuminated and the instrument cluster Electronic Vehicle Information Center (EVIC) will display a highlighted graphic of the locations including the pressure values of the affected tires.
• In the event there is a TPMS fault, the telltale will flash on and off for 75 seconds and then maintain a continuous illumination. The system fault will sound a chime and also display a “Service TPM System” message in the EVIC for approximately 3 seconds. This message contains the same symbol as the telltale. If the ignition switch is cycled, this sequence will repeat, providing the system fault still exists. If the system fault no longer exists, the TPMS telltale will no longer flash, and the “Service TPM System” message will no longer display.
In addition to the TPMS telltale alerting the operator of a significant loss of tire pressure, or a TPMS malfunction as required, the EVIC messages and owner's manual provide more than the minimum level of information required aiding the operator's association of the illuminated telltale with an appropriate response.
Chrysler also made reference to a previous petition for inconsequential noncompliance that addressed labeling issues that NHTSA granted.
Chrysler has additionally informed NHTSA that it has corrected the noncompliance so that all future production vehicles will comply with FMVSS No. 101.
In summation, Chrysler believes that the described noncompliance of the subject vehicles is inconsequential to motor vehicle safety, and that its petition, to exempt Chrysler from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
NHTSA understands that many vehicle operators are not familiar with the standard TPMS telltale used in vehicles today. The agency anticipates that regardless of TPMS telltale color, yellow or orange, vehicle operators familiar with the telltale symbol will not be confused by the telltale color, and those not familiar with the telltale symbol will still have to reference the owner's manual to determine the meaning when illumination occurs.
Chrysler explained that in the event there is a significant low inflation pressure condition, the TPMS telltale will illuminate as required, and the instrument cluster Electronic Vehicle Information Center (EVIC) will display a highlighted graphic depicting locations and pressure values of affected tires.
The agency is in agreement with Chrysler that the information provided by the EVIC is in addition to the telltale required by the TPMS safety standard (FMVSS No. 138). The EVIC information and warnings will aid the vehicle operator in the recognition of low tire inflation pressure and TPMS system malfunctions.
For the reasons stated above, the agency concludes that in the case of the subject vehicles, the low tire pressure indicator telltales installed on the subject vehicles being orange in color rather than yellow poses little if any risk to motor vehicle safety.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that Chrysler no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve Chrysler distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Chrysler notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Nitto Tire U.S.A., Inc. (Nitto), has determined that certain Nitto NT05 passenger car tires manufactured between December 14, 2014 and August 1, 2015, do not fully comply with paragraph S5.5(e) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
For further information on this decision contact Abraham Diaz, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5310, facsimile (202) 366-5930.
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Nitto submitted a petition for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
Notice of receipt of the petition was published, with a 30-day public comment period, on December 14, 2015 in the
Affected are approximately 1,059 Nitto NT05 size 295/35ZR18 99W passenger car tires manufactured between December 14, 2014 and August 1, 2015.
Nitto explains that the noncompliance is that the sidewall markings on the subject tires do not include the correct generic name for the plies in the tread and sidewall area of the tires as required by paragraph S5.5(e) of FMVSS No. 139. Specifically, the subject tires are marked with “Tread 2 Steel 2 Rayon 1 Nylon; Sidewall 3 Rayon.” The correct marking should be “Tread 2 Steel 2 Polyester 1 Nylon; Sidewall 3 Polyester.”
Paragraph S5.5(e) of FMVSS No. 139 requires in pertinent part:
S5.5
(e) The generic name of each cord material used in the plies (both sidewall and tread area) of the tire; . . .
Nitto stated its belief that the subject noncompliance is inconsequential to motor vehicle safety for the following reasons:
(1) Nitto believes that in the Safety Act Congress acknowledged that there are cases where a vehicle or equipment may fail to comply with a safety standard, but that the impact on motor vehicle safety is so slight that an exemption from the notice and remedy requirements of the Safety Act is justified.
(2) Nitto states that the subject tires meet all other performance and regulatory requirements of FMVSS No. 139.
(3) Nitto has not received any complaints, claims, or warranty adjustments related to this noncompliance.
(4) Nitto believes that NHTSA has previously granted inconsequential noncompliance petitions for noncompliances that it believes are similar to the subject noncompliance.
Nitto has additionally informed NHTSA that it has corrected the noncompliance so that future production of the subject tires will comply with all applicable labeling requirements of FMVSS No. 139.
In summation, Nitto believes that the described noncompliance of the subject tires is inconsequential to motor vehicle safety, and that its petition, to exempt Nitto from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
Although tire construction affects the strength and durability, neither the agency nor the tire industry provides information relating tire strength and durability to the ply cord material in the tread and sidewall. Therefore, tire dealers and customers should consider the tire construction information along with other information such as load capacity, maximum inflation pressure, and tread wear, temperature, and traction ratings, to assess performance capabilities of various tires.
In the agency's judgement, the incorrect labeling of the tire construction information will have an inconsequential effect on motor vehicle safety because most consumers do not base tire purchases or vehicle operation parameters on the ply material in a tire.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject tires that Nitto no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after Nitto notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
Pipeline and Hazardous Materials Safety Administration, DOT.
Notice of public workshop.
This notice is to announce a public workshop to discuss Oil Spill Response Plans covered by PHMSA's Part 130 and Part 194 regulations. The purpose of the workshop is to bring federal regulators, interested members of the public, industry, and other stakeholders together to share knowledge and experiences with oil spill response planning and preparedness, gather ideas for harmonizing PHMSA's regulations with other agencies, and discuss practical ways regulated entities can better plan and prepare for an oil spill.
The public workshop will held on Tuesday, April 12, 2016, from 9:00 a.m. to 4:30 p.m. EST. Changes to start and finish times will be updated on the PHMSA meeting Web site (
The workshop will be held at the National Transportation Safety Board, 490 L'Enfant Plaza East, Southwest, Washington, DC.
The workshop agenda and any additional information will be published on the PHMSA home page Web site at (
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Comments will be posted without changes or edits to
Anyone may search the electronic form of all comments received for any of our dockets. You may review DOT's complete Privacy Act Statement in the
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, please contact Kristen Beer, Office of Pipeline Safety, at 202-366-8405 or by email at
David Lehman, Director, Emergency Support and Security Division, at 202-366-4439 or
The federal pipeline oil spill response plan regulations (49 CFR 194) require operators to prepare and submit a response plan in order to minimize the harm caused to the environment due to the discharge of oil into or on any inland navigable waters of the United States or adjoining shorelines. This workshop will focus on multi-agency alignment, operator compliance, and participation in required drills and exercises. Additionally, attendees and commenters will be given the opportunity to provide suggestions and recommendations for possible changes to the oil spill response regulations.
PHMSA wishes to gather information about the efficacy of the oil spill response plan regulations. PHMSA is aware that regulated entities and members of the public have requested greater direction and regulatory interpretation. PHMSA is also aware that its oil spill response plan regulations do not fully align with the regulations of other federal agencies that have been delegated jurisdiction under 42 U.S.C. 1321(j)(5). PHMSA is exploring ways to reduce redundancy, clarify language and improve efficacy of its oil spill response plan regulations.
PHMSA believes improving the response plan preparation and submission process is important for improving response actions, ensuring response capabilities, and minimizing harm to the environment. In particular, PHMSA is interested in collaboration with other jurisdictional federal agencies, operators, and oil spill response organizations.
Office of the Assistant Secretary for Research and Technology (OST-R), Department of Transportation (DOT).
Request for Information (RFI).
Section 6019 of the Fixing America's Surface Transportation Act (FAST Act; Pub. L. 114-94; December 4, 2015; codified at 49 U.S.C. 6503) requires that the Secretary develop a 5-year transportation research and development strategic plan to guide future Federal transportation research and development activities. The FAST Act states that the strategic plan shall “describe how the plan furthers the primary purpose of the transportation research and development program.
Comments must be received by April 29, 2016.
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
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All comments must include the docket number DOT-OST-2016-0044 at the beginning of the submission. All comments received will be posted without change to
Aaron Jette, Community Planner, U.S. DOT Volpe Center, Attn: Aaron Jette; Office 460; 55 Broadway, Cambridge, MA 02142. Telephone (617) 494-2335 or Email
The FAST Act states that the strategic plan shall “describe how the plan furthers the primary purpose of the transportation research and development program, which shall include—
(A) Improving mobility of people and goods;
(B) Reducing congestion;
(C) Promoting safety;
(D) Improving the durability and extending the life of transportation infrastructure;
(E) Preserving the environment;
(F) Preserving the existing transportation system.”
The FAST Act also requires that the strategic plan take into account research and development by other Federal, State, local, private sector and non-profit institutions.
The Office of the Assistant Secretary for Research and Technology invites the public to provide comments to inform the development of the 5-year strategic plan for transportation Research, Development and Technology (RD&T). Comments should regard appropriate RD&T activities to meet the purposes and considerations listed in the FAST Act and/or emerging RD&T challenges, opportunities, and priorities that U.S. DOT RD&T should address over the next five years. In particular, comments may respond to any or all of the following questions:
1. What research strategies and priorities should the U.S. DOT adopt to achieve the primary purposes cited in the FAST Act?
2. How can the issues raised in the U.S. DOT document “
3. What emerging challenges or opportunities in transportation warrant additional Federal RD&T activities or investments?
4. What current and planned RD&T activities sponsored by the federal government should be continued or revised in the future?
5. What strategies could improve the cost-effectiveness of U.S. DOT research investments?
6. How can U.S. DOT best coordinate its RD&T activities with Federal, State, local, private sector, non-profit institutions, and international partners?
7. What knowledge gaps merit additional exploration by the USDOT?
For information about current U.S. DOT RD&T activities please visit the Department's Web site at:
The U.S. DOT RD&T Strategic Plan will present the Department's strategy for responding to the trends and opportunities identified in
Department of Transportation, Office of the Secretary.
Notice of order soliciting community proposals (Order 2016-3-32).
The Department of Transportation is soliciting proposals from communities or consortia of communities interested in receiving grants under the Small Community Air Service Development Program. The full text of the Department's order, including Appendices, is included in this Notice. As noted in the order, an application for a grant under this program must include a Grant Proposal of no more than 20 pages (one-sided only), a completed Application for Federal Domestic Assistance (SF424), a Summary Information Schedule, and any letters from the applicant community showing support.
Applications must be submitted no later than May 2, 2016.
Communities must submit applications electronically through
Brooke Chapman, Associate Director, Small Community Air Service Development Program, Office of Aviation Analysis, 1200 New Jersey Avenue SE., W86-307, Washington, DC 20590, (202) 366 0577.
By this order, the U.S. Department of Transportation (the Department or DOT) invites proposals from communities and/or consortia of communities interested in obtaining a federal grant under the Small Community Air Service Development Program (“Small Community Program” or “SCASDP”) to address air service and airfare issues in their communities. Subject to the availability of funding, the Department has up to $5 million available for FY 2016 grant awards to carry out this program. There is no other limitation on the amount of individual awards, and the amounts awarded will vary depending upon the features and merits of the selected proposals. In past years, the Department's individual grant sizes have ranged from $20,000 to nearly $1.6 million. Funding amounts made available for reimbursement may be impacted by future limitations placed on the spending authority and appropriations enacted for the Department.
This order is organized into the following sections:
The Small Community Program was established by the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (Pub. L. 106-181), reauthorized by the Vision 100-Century of Aviation Reauthorization Act (Pub. L. 108-176), and subsequently reauthorized by the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) (FAA 2012), as amended. The program is designed to provide financial assistance to small communities in order to help them enhance their air service. The Department provides this assistance in the form of monetary grants that are disbursed on a reimbursable basis. Authorization for this program is codified at 49 U.S.C. 41743.
The Small Community Program is authorized to receive appropriations under 49 U.S.C. 41743(e)(2), as amended. Appropriations are provided for this program for award selection in FY 2016 pursuant to FAA 2012 and the Consolidated Appropriations Act, 2016 (Pub. L. 114-113). The Airport and Airway Extension Act of 2015 provides contract authority until March 31, 2016, for the Airport Improvement Program, which funds SCASDP. Therefore, subject to the availability of funding, the Department has up to $5 million available for FY 2016 grant awards to carry out this program. There is no other limitation on the amount of individual awards, and the amounts awarded will vary depending upon the features and merits of the selected proposals. In past years, the Department's individual grant sizes have ranged from $20,000 to nearly $1.6 million. Funding amounts made available for reimbursement may be impacted by future limitations placed on the spending authority and appropriations enacted for the Department.
Eligible applicants are small communities that meet the following statutory criteria under 49 U.S.C. 41743, as amended by Public Law 114-113:
1. (a) The airport serving the community or consortium is not larger than a small hub airport, according to FAA hub classifications effective on the date of service of this Order,
(b) As of calendar year 1997, the airport serving the community or consortium was not larger than a small hub airport,
2. It has insufficient air carrier service or unreasonably high air fares; and
3. The airport serving the community presents characteristics, such as geographic diversity or unique circumstances that demonstrate the need for, and feasibility of, grant assistance from the Small Community Program.
No more than four communities or consortia of communities, or a combination thereof, from the same State may be selected to participate in the program in any fiscal year. No more than 40 communities or consortia of communities, or a combination thereof, may be selected to participate in the program in each year for which the funds are appropriated.
The Department is authorized to award grants under 49 U.S.C. 41743 to communities that seek to provide assistance to:
• A U.S. air carrier
• An underserved airport to obtain service to and from the underserved airport; and/or
• An underserved airport to implement such other measures as the Secretary, in consultation with such airport, considers appropriate to improve air service both in terms of the
Applicants should also keep in mind the following statutory restrictions on eligible projects:
• An applicant may not receive an additional grant to support the same project from a previous grant (see Same Project Limitation below); and
• An applicant may not receive an additional grant, prior to the completion of its previous grant (see Concurrent Grant Limitation below).
SCASDP grants will be awarded based on the selection criteria as outlined below. There are two categories of selection criteria: Priority Selection Criteria and Secondary Selection Criteria. Applications that meet one or more of the Priority Selection Criteria will be viewed more favorably than those that do not meet any Priority Selection Criteria.
The statute directs the Department to give priority consideration to those communities or consortia where the following criteria are met:
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• The extent to which the applicant's proposed solution(s) to solving the problem(s) is new or innovative, including whether the proposed project utilizes or encourages intermodal or regional solutions to connect passengers to the community's air service (or, if the community cannot implement or sustain its own air services, to connect to a neighboring community's air service)
• whether the proposed project, if successfully implemented, could serve as a working model for other communities.
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• Whether the proposed project has broad community support; and
• the community's demonstrated commitment to and participation in the proposed project.
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• The geographic location of each applicant, including the community's proximity to larger centers of air service and low-fare service alternatives;
• The population and business activity, as well as the relative size of each community; and
• Whether the community's proximity to an existing or prior grant recipient could adversely affect either its proposal or the project undertaken by the other recipient.
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• Whether the proposed project clearly addresses the applicant's stated problems;
• The community's existing level of air service and whether that service has been increasing or decreasing;
• Whether the applicant has a plan to provide any necessary continued financial support for the proposed project after the requested grant award expires;
• The grant amount requested compared with the total funds available for all communities;
• The proposed federal grant amount requested compared with the local share offered;
• any letters of intent from airline planning departments or intermodal surface transportation providers on behalf of applications that specifically indicate intent to enlist new or expanded air service or surface transportation service in support of the air service in the community;
• whether the applicant has plans to continue with the proposed project if it is not self-sustaining after the grant award expires; and
• equitable and geographic distribution of available funds.
The Department will first review each application to determine whether it has satisfied the following eligibility requirements:
1. The applicant is an eligible applicant;
2. The application is for an eligible project (including compliance with the Same Project Limitation); and
3. The application is complete (including submission of a completed SF424 and all of the information listed in Contents of Application, in Section IV below).
To the extent that the Department determines that an application does not satisfy these eligibility requirements, the Department will deem that application ineligible and not consider it further.
The Department will then review all eligible applications based on the selection criteria outlined above in Section II. The Department will not assign specific numerical scores to projects based on the selection criteria. Rather, ratings of “highly recommended,” “recommended,” “acceptable,” or “not recommended” will be assigned to applications. Applications that align well with one or more of the Priority Selection Criteria will be viewed more favorably than those that do not align with any Priority Selection Criteria. The Department will consider the Secondary Selection Criteria when comparing and selecting among similarly-rated projects.
The Department reserves the right to award funds for a part of the project included in an application, if a part of the project is eligible and aligns well with the selection criteria specified in this Order. In addition, as part of its review of the Secondary Selection Criterion “Other Factors,” the Department will consider the geographical distribution of the applications to ensure consistency with the statutory requirement limiting awards to no more than four communities or consortia of communities, or a combination thereof, from the same state. The final selections will be limited to no more than 40 communities or consortia of communities, or a combination thereof.
Grant awards will be made as promptly as possible so that selected communities can complete the grant agreement process and implement their plans. Given the competitive nature of the grant process, the Department will not meet with applicants regarding their applications. All non-confidential portions of each application, all correspondence and ex-parte communications, and all orders will be posted in the above-captioned docket on
The Department will announce its grant selections in a Selection Order that will be posted in the above-captioned docket, served on all applicants and all parties served with this Solicitation Order, and posted on the Department's SCASDP Web site
Required Steps:
• Determine eligibility;
• Register with
• Submit an Application for Federal Domestic Assistance (SF424);
• Submit a completed “Summary Information” schedule. This is your application cover sheet (
• Submit a detailed application of
• Attach any letters from the community or an air carrier showing support for the application to the proposal, which should be addressed to: Brooke Chapman, Associate Director, Small Community Air Service Development Program; and
• Provide separate submission of confidential material, if requested. (
An application will not be complete and will be deemed ineligible for a grant award until and unless all required materials, including SF424, have been submitted through
An application consisting of more than 20 pages will be accepted by the Department, but the content in the additional pages past page 20 will not be evaluated or considered by the Department. The Department would prefer that applicants use one-inch margins and a font size not less than 12 point type.
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○ For applications involving new or improved service, explain how the service will become self-sufficient;
○ fully and clearly outline the goals and objectives of the project; and
○ fully and clearly summarize the actual, specific steps (in bullet form, with a proposed timeline) that the community intends to take to bring about these goals and objectives.
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As part of the Small Community Program, the Department may also designate one grant recipient as an “Air Service Development Zone” (ASDZ).
Grant applicants interested in selection for the Air Service Development Zone designation must include in their applications a separate section, titled,
For further information concerning the technical requirements set out in this Order, please contact Brooke Chapman at
This Order is issued under authority delegated in 49 CFR 1.25a(b).
Accordingly,
1. Applications for funding under the Small Community Air Service Development Program should be submitted via
2. This Order will be published in the
By:
An electronic version of this document is available online at
Applications must be submitted electronically through
Registering with www.grants.gov is a one-time process; however, processing delays may occur and it can take up to several weeks for first-time registrants to receive confirmation and a user password. It is highly recommended that applicants start the registration process as early as possible to prevent delays that may preclude submitting an application by the deadlines specified. Applications must be submitted and time-stamped not later than 5:00 p.m. EDT on May 2, 2016 (the Application Deadline), and, as set forth below, failure to complete the registration process before the Application Deadline is not a valid reason to permit late submissions.
In order to apply for SCASDP funding through
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4. After creating a profile on Grants.gov, the E-Biz Point of Contact (E-Biz POC)—a representative from your organization who is the contact listed
Applicants are, therefore, encouraged to register early. The registration process can take up to four weeks to be completed. Thus, registration should be done in sufficient time to ensure it does not impact your ability to meet required submission deadlines. You will be able to submit your application online any time after you have approved as an AOR.
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6. Search for the Funding Opportunity on
7. Submit an application addressing all of the requirements outlined in this funding availability announcement. Within 24-48 hours after submitting your electronic application, you should receive an email validation message from
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9. Grants.gov allows applicants to download the application package, instructions and forms that are incorporated in the instructions, and work offline. In addition to forms that are part of the application instructions, there will be a series of electronic forms that are provided utilizing Adobe Reader.
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When uploading attachments please use generally accepted formats such as .pdf, .doc, and .xls. While you may imbed picture files such as .jpg, .gif, .bmp, in your files, please do not save and submit the attachment in these formats. Additionally, the following formats will not be accepted: .com, .bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora, .sys, and .zip.
Applicants who are unable to successfully submit their application package through grants.gov prior to the Application Deadline due to technical difficulties outside their control must submit an email to
• The nature of the technical difficulties experienced in attempting to submit an application;
• A screenshot of the error;
• The Legal Sponsor's name; and
• The Grants.Gov tracking number (
DOT will consider late applications on a case-by-case basis and reserves the right to reject late applications that do not meet the conditions outlined in the Order Soliciting Small Community Grant Proposals. Late applications from applicants that do not provide DOT an email with the items specified above will not be considered.
If you experience unforeseen
To ensure a fair competition for limited discretionary funds, the following conditions are not valid reasons to permit late submissions: (1) Failure to complete the registration process before the deadline date; (2) failure to follow
Applicants will be able to provide certain confidential business information relevant to their proposals on a confidential basis. Under the Department's Freedom of Information Act regulations (49 CFR 7.17), such information is limited to commercial or financial information that, if disclosed, would either likely cause substantial harm to the competitive position of a business or enterprise or make it more difficult for the Federal Government to obtain similar information in the future.
Applicants seeking confidential treatment of a portion of their applications must segregate the confidential material in a sealed envelope marked “Confidential Submission of X (the applicant) in Docket DOT-OST-2016-0037” and include with that material a request in the form of a motion seeking confidential treatment of the material under 14 CFR 302.12 (“Rule 12”) of the Department's regulations. The applicant should submit an original and two copies of its motion and an original and two copies of the confidential material in the sealed envelope.
The confidential material should
Office of the Secretary, U.S. Department of Transportation.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments on this notice must be received by April 29, 2016.
Interested persons are invited to submit comments regarding this proposal to the DOT/OST Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503, or by email to
Sam Brooks, Equal Opportunity Specialist (S-33), Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, 202-366-7145.
The single comment that was received by DOT during the 60-day comment period was provided by a trade association and had four components. The association (1) asked DOT to use the data collection measure to address the issue of out-of-date DBE directories; (2) observed that prime contractors need better information on the types of construction work DBEs are able to perform; (3) requested that the questionnaire “query DBE firms on the issue of training;” and (4) asked DOT to evaluate the responses regarding perceived barriers or challenges from the perspective of all parties. After careful consideration, DOT makes due note of all four components. Only items (1) and (3) appear to request changes to proposed questions. However, as these items are not strictly germane to the stated purpose (measuring the objective of creating a level playing field) of the questionnaire, the Department respectfully declines to alter the content of the questions.
The questionnaire will be for the use of ACDBE and DBE certified firms, so that they can provide information regarding the nature of their business and bidding history, and perceived barriers/challenges that may have prevented them from receiving a contract or successfully competing in DOT's ACDBE/DBE program. A link to the questionnaire will be made available by DOT's Departmental Office of Civil Rights for use by the Department's state and local recipients, which can in turn post this link on their own Web sites.
(a) whether the proposed collection of information is necessary for the proper performance of DOT's ACDBE/DBE program; (b) the accuracy of the estimated burden; (c) ways for the Department to enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information. Comments should be sent to the address in the preamble. All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will also become a matter of public record.
Office of the Comptroller of the Currency, Treasury (OCC).
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a revision to this information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is also giving notice that it has sent the collection to OMB for review.
The OCC is finalizing revisions to the collection titled “Annual Company-Run Stress Test Reporting Template and Documentation for Covered Institutions with Total Consolidated Assets of $10 Billion to $50 Billion under the Dodd-Frank Wall Street Reform and Consumer Protection Act.” The OCC also is giving notice that it has sent the collection to OMB for review.
Comments must be received by April 29, 2016.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0311, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Additionally, please send a copy of your comments by mail to: OCC Desk
You can request additional information from or a copy of the collection from Shaquita Merritt or Mary H. Gottlieb, Clearance Officers, (202) 649-5490, or for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, copies of the templates referenced in this notice can be found on the OCC's Web site under Tools and Forms (
The OCC is requesting comment on a revision to the following information collection:
The OCC is finalizing the following revisions and clarifications for the OCC DFAST 10-50 report, effective for the 2016 stress test cycle: Changing the dates on the reporting templates to match the revised “as of” date from September 30 to December 31, changing the reporting submission due date from March to July, and modifying the reporting instructions to clarify a number of items. Additionally, the line item “Qualifying subordinated debt and redeemable preferred stock” will be eliminated in the capital section of the balance sheet, and the report form will include updated references to specific reporting items on the Reports of Condition and Income (Call Report).
The OCC received one comment letter. The comment letter requested updates to several Call Report references in the reporting templates and clarification to the balance sheet capital section of the instructions. In response to this comment, the templates and instructions have been updated with revised references that the OCC believes will provide additional clarity.
The OCC has worked closely with the Board and the Federal Deposit Insurance Corporation to make the agencies' respective rules implementing the annual stress testing requirements under the Dodd-Frank Act consistent and comparable by requiring similar standards for scope of application, scenarios, data collection and reporting forms. The OCC also has worked to minimize any potential duplication of effort related to the annual stress test requirements.
The burden for each $10 to $50 billion covered institution that completes the revised results template is estimated to be 445 hours for a total of 14,685 hours. This burden includes 20 hours to input this data and 425 hours for work related to modeling efforts. The estimated revised burden for each $10 to $50 billion covered institution that completes the annual DFAST Scenarios Variables Template is estimated to be 24 hours for a total of 792 hours.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and,
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service, designate or revise critical habitat for 125 listed species on the islands of Maui, Molokai, and Kahoolawe in the State of Hawaii. We are designating critical habitat for 50 plant and animal species, and revising critical habitat for 85 plant species. In total, approximately 157,002 acres (ac) (63,537 hectares (ha)) on the islands of Molokai, Maui, and Kahoolawe fall within the boundaries of the critical habitat designation. Although we proposed critical habitat on 25,413 ac (10,284 ha) on the island of Lanai, this area is excluded from final designation under section 4(b)(2) of the Endangered Species Act. In addition, under section 4(b)(2), approximately 59,479 ac (24,070 ha) on the islands of Maui and Molokai are excluded from critical habitat designation. These exclusions mean that we are not designating critical habitat for 10 of the species included in our proposed rule. We also removed 29,170 ac (11,805 ha) of areas we determined do not meet the definition of critical habitat. In this final rule, we accept name changes or corrections for 10 endangered plants and 2 endangered birds. The effect of this rule is to conserve these 125 species and their habitats under the Endangered Species Act.
This rule is effective on April 29, 2016.
This final rule, final economic analysis, and the document “Supplementary Information for the Designation and Nondesignation of Critical Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 Species” are available on the Internet at
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Mary Abrams, Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
This final rule describes the final critical habitat designation for 135 Maui Nui species under the Endangered Species Act of 1973, as amended (Act or ESA) (16 U.S.C. 1531
We, the U.S. Fish and Wildlife Service (Service), listed 96 of the 135 species as endangered or threatened species at various times (see 77 FR 34464; June 11, 2012). On June 11, 2012, we published in the
The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for
In this final rule, 29,170 ac (11,805 ha) have been removed from the area originally proposed as a result of refinement in unit areas made in response to public comments and additional field visits. We removed these areas based on our determination that they do not meet the definition of critical habitat. In addition, 84,891 ac (34,354 ha) of non-Federal lands on Maui, Molokai, and Lanai have been excluded from final designation under section 4(b)(2) of the Act. For these lands, the Secretary has determined that the benefits of exclusion outweigh the benefits of critical habitat designation and that these exclusions will not result in the extinction of the species.
In this final rule, we also recognize taxonomic changes and spelling corrections of the scientific names for 10 plant species and 2 bird species, and revise the List of Endangered and Threatened Plants and the List of Endangered and Threatened Wildlife accordingly.
Federal actions for these species are outlined in our May 28, 2013 (78 FR 32014), final rule to list 38 Maui Nui species and reaffirm the listing of 2 endangered plants and in our June 11, 2012 (77 FR 34464), proposed rule to list 38 species as endangered and designate critical habitat for 135 Maui Nui species. (Please note that because the proposed rule to designate critical habitat was originally published in conjunction with the proposed listing rule, which has already been finalized, the proposed rule critical habitat rule and associated documents, such as the draft economic analysis, are posted at
The table below (Table 1) provides the common name, scientific name, and listing status for the species that are the subject of this final rule.
As described in detail in our proposed rule (June 11, 2012; 77 FR 34464), in this final rule we are accepting name or spelling changes for 2 bird species and 10 plant species. In brief, we accept the recently adopted Hawaiian common name, kiwikiu, for the Maui parrotbill (
All of the aforementioned taxonomic changes and spelling corrections are currently accepted by the scientific community; detailed background information on each of the changes is provided in our supporting document “Supplementary Information for the Designation and Nondesignation of Critical Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 Species,” available at
In order to avoid confusion regarding the number of locations of each species, we use the word “occurrence” instead of “population.” It is important to note that a “location” or “occurrence” as used here is not the same as a “population,” as in many cases a location or occurrence may represent only one or very few representative individuals of the species present. A population, on the other hand, represents a group of interbreeding organisms sufficiently represented in numbers of individuals, age class, and genetic diversity to remain viable over the long term in the face of demographic, environmental, and genetic stochasticity, and natural catastrophes. This distinction is particularly important in evaluating the current status of each species relative to the determination of what is essential for the conservation of the species, as guided, for example, by the recovery plan for the plant or animal species, if available (
The Maui parrotbill, or kiwikiu (
The crested honeycreeper, or akohekohe (
Newcomb's tree snail (
Under section 4(a)(3)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
In this final rule, we are designating critical habitat for 125 species in 165 unique critical habitat units. Although critical habitat is identified for each species individually, we have found that the conservation of each depends, at least in part, on the successful functioning of the physical or biological features of their commonly shared ecosystem. Each critical habitat unit identified in this final rule contains the physical or biological features essential to the conservation of those individual species that occupy that particular unit, or areas essential for the conservation of those species identified that do not presently occupy that particular unit. Where the unit is not occupied by a particular species, we conclude it is still essential for the conservation of that species because the designation allows for the expansion of its range and reintroduction of individuals into areas where it occurred historically, and provides area for recovery in the case of stochastic events that otherwise hold the potential to eliminate the species from the one or more locations where it may presently be found. Under current conditions, many of these species are so rare in the wild that they are at high risk of extirpation or even extinction from various stochastic events, such as
Each of the areas designated represents critical habitat for multiple species, based upon their shared habitat requirements (
In the interest of reducing the length of this document, we have provided detailed background information regarding the islands of Maui Nui, as well as descriptions of the relevant Maui Nui ecosystems that provide habitat for these species, in our supporting document “Supplemental Information for the Designation and Nondesignation of Critical Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 Species,” available at
On June 11, 2012, we published a proposed rule to list 38 Maui Nui species (35 plants and 3 tree snails) as endangered and reevaluate the listing of 2 Maui Nui plant species as endangered throughout their ranges, and to designate critical habitat for 135 species (77 FR 34464). The proposed rule opened a 60-day comment period. On August 9, 2012 (77 FR 47587), we extended the comment period for the proposed rule for an additional 30 days, ending on September 10, 2012. We requested that all interested parties submit comments or information concerning the proposed listing and designation of critical habitat for 135 species. We contacted all appropriate State and Federal agencies, county governments, elected officials, scientific organizations, and other interested parties and invited them to comment. In addition, we published a public notice of the proposed rule on June 20, 2012, in the local Honolulu Star Advertiser, Maui Times, and Molokai Dispatch newspapers, at the beginning of the comment period. We received three requests for public hearings. On January 31, 2013, we published a document (78 FR 6785) reopening the comment period on the June 11, 2012, proposed rule (77 FR 34464), announcing the availability of our draft economic analysis (DEA) on the proposed critical habitat, and requesting comments on both the proposed rule and the DEA. This comment period closed on March 4, 2013. In addition, in that same document (January 31, 2013; 78 FR 6785) we announced a public information meeting and hearing, which we held in Kihei, Maui, on February 21, 2013. On June 10, 2015, we again reopened the comment period on the proposed critical habitat for an additional 15 days (80 FR 32922); this comment period closed on June 25, 2015.
In addition, on February 25, 2013, during a meeting of the Maui County Council's Policy and Intergovernmental Affairs (PIA) Committee in Wailuku, Maui, the council received public testimony on the Service's June 11, 2012 (77 FR 34464), proposed rule. Fourteen individuals present at the meeting provided oral testimony, and 4 individuals provided only written testimony, on the proposed designation of critical habitat for 135 species.
During the comment periods, we received a total of 150 unique comment letters on the proposed listing of 38 species, reevaluation of listing for 2 species, and proposed designation of critical habitat. In addition, we received 5,107 copies of an electronic form letter in support of critical habitat designation from a Web site available to a worldwide audience. No additional scientific information was provided in these form letters. We also received a petition entitled “Maui Hunters Oppose Maui Nui Critical Habitat Designation,” signed by 93 individuals. Of the 150 commenters, 11 were State of Hawaii or Maui County elected officials, three were Federal agencies (Pacific West Region of the National Park Service, Haleakala National Park, and Kalaupapa National Historical Park), four were State of Hawaii agencies (Hawaii Department of Health (although they did not provide any comments specific to critical habitat), Hawaii Department of Agriculture, Hawaii Division of Forestry and Wildlife, Hawaii Department of Hawaiian Homelands), three were affiliated with Maui County (Maui County Police Department, Maui County Planning Department, and Maui County Council Committee on Policy and Intergovernmental Affairs), and 129 were nongovernmental organizations or individuals; and, counted separately, the 5,107 electronic form letters (as described above). During the February 21, 2013, public hearing, 25 individuals or organizations made comments on the proposed designation of critical habitat for 135 species and the DEA. Due to the nature of the proposed rule, we received combined comments from the public and peer reviewers on both the listing action and the critical habitat designation. Comments relevant to the proposed listing of the 38 species and reevaluation of 2 species were addressed in the final listing rule published May 28, 2013 (78 FR 32014). In this final rule, we address only those comments relevant to the designation of critical habitat.
All substantive information provided during the comment periods related to the critical habitat designation has either been incorporated directly into this final rule as appropriate or is addressed below. Comments we received are grouped into comments specifically relating to the proposed critical habitat designation, the Lanai Memorandum of Understanding (MOU), or the DEA. For readers' convenience, we have combined similar comments into single comments and responses.
In accordance with our peer review policy published in the
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We support and value the conservation efforts by the State and recognize the necessity of actions taken on State lands for conservation of species and their habitats. We also agree that, if fenced, and maintained as ungulate-free, these areas on State lands would provide benefits to the species and their habitats. However, we note that the West Maui NAR-Kahakuloa section is within a public hunting area (pigs, goats, and birds) with daily bag limits, Hanawi NAR is within a public hunting area (goats and pigs) with daily bag limits, and Puu Alii NAR and Olokui NAR on Molokai are also within public hunting areas (goats and pigs) with daily bag limits, implying these areas are not yet entirely ungulate-free. Therefore, any beneficial management actions to address the threats from nonnative species in the NARs (
(5)
In this final rule we have also outlined the recovery criteria, as identified in the Recovery Plan, to ensure the conservation of the akohekohe and kiwikiu within their existing occupied habitat and those unoccupied habitats identified as essential for their conservation (see “Recovery Strategy for Two Forest Birds,” below).
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Game mammal hunting is a recreational and cultural activity in Hawaii that is regulated by the HDLNR on State and private lands (HDLNR 2002, entire). Critical habitat does not give the Federal government authority to control or otherwise manage feral animals on non-Federal land. These land management options continue to be landowner decisions and, absent Federal involvement, are not affected by the designation of critical habitat. It is well-known that game mammals affect listed plant and animal species in Hawaii. We believe it is important to develop and implement management programs that provide for the recovery of listed species, but also acknowledge the importance of continued ungulate hunting in game management areas. We welcome opportunities to work closely with the State and other partners to ensure that game management programs are implemented in a manner consistent with both of these needs.
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We received comments from the National Park Service (Pacific West Region), Haleakala National Park (on Maui), and Kalaupapa National Historical Park (on Molokai). Haleakala National Park provided information on one or more of the plant and forest bird species addressed in this final rule that occur in the Park, and this information was incorporated, as appropriate, into the final rule listing 38 species on Molokai, Lanai, and Maui as endangered, which published on May 28, 2013 (78 FR 32014), or into this final rule and its supporting documentation.
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The Revised Recovery Plan for Hawaiian Forest Birds recognizes that the long-term recovery strategy for the akohekohe and kiwikiu are similar because they inhabit similar geographic areas and face similar threats (Service 2006, p. 2-141). Historically, kiwikiu favored koa forests for foraging, but such forests have been largely lost to past logging and ranching, such that kiwikiu are now restricted to wet montane forests with low numbers of koa that are likely marginal habitat for the species
Areas currently unoccupied by the two bird species are essential to their conservation for multiple reasons. Primary amongst these is the high risk of extinction faced by any species that occurs in only a single population; this risk may be from a predictable threat such as disease, or a stochastic threat, such as a hurricane. For both the akohekohe and kiwikiu, the reestablishment of additional populations is needed to reduce this elevated risk of extinction (Service 2006, pp. 2-83, 2-143); this risk could be reduced from the establishment of additional populations on Maui, and possibly by reestablishing the species on Molokai as well. The risk of extinction for these species is such that one of the recovery criteria for listed Hawaiian forest birds is the requirement that the species occurs in two or more viable populations or a viable metapopulation (Service 2006, pp. 2-83—2-84, 2-143, 3-5—3-6). The establishment of additional populations in currently unoccupied areas reduces the likelihood of significant impacts to the species as a whole from risks associated with disease, as well as catastrophes such as hurricanes and fires, and increases the ecological breadth of the species to help buffer against climatic fluctuations. Additional or larger populations will additionally promote natural demographic and evolutionary processes to increase the long-term viability of the species. Unoccupied areas can help facilitate the dispersal of birds, including seasonal movements, which can increase gene flow between isolated populations and increase the viability of established and newer populations. For all of these reasons, we have concluded that a critical habitat designation limited to the areas presently occupied by the akohekohe and kiwikiu is inadequate to ensure the conservation of the species, and we have therefore designated as critical habitat certain areas outside of the present range of the akohekohe and kiwikiu that we have determined are essential to the conservation of these species.
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The Hawaii DLNR's Division of Forestry and Wildlife (DOFAW) provided extensive comments on the proposed rule. Those comments are organized by island and by region, and we address them accordingly, below.
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Portions of three proposed critical habitat units (plant critical habitat units Maui—Montane Mesic—Unit 1 (1,777 ac, 719 ha), Maui—Subalpine—Unit 1 (3,060 ac, 1,238 ha), and Maui—Alpine—Unit 1 (13 ac, 5 ha); and the corresponding forest bird critical habitat units Unit 18—Montane Mesic and Unit 24—Subalpine) overlapped a total of 4,899 ac (1,984 ha) in Kula FR. In this final rule, we are designating the same areas within Kula FR as critical habitat for 29 species (27 plants and 2 forest birds) in these units. Each of these five critical habitat units provides the physical or biological features essential to the conservation of the species and requires special management considerations or protections (
In Makawao FR, portions of three proposed critical habitat units (plant critical habitat units Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, and Maui—Montane Mesic—Unit 1; and the corresponding forest bird critical habitat Unit 2—Lowland Wet, Unit 10—Montane Wet, and Unit 18—Montane Mesic) overlapped a total of 1,912 ac (774 ha) in Makawao FR. These units are critical habitat for 45 species (43 plants and 2 forest birds). Each of these six critical habitat units provides the physical or biological features essential to the conservation of the 45 species, is within the historical range of these plant and bird species, and requires special management (occupied habitat) or these units provide the primary constituent elements (PCEs) necessary for the reestablishment of wild populations within their historical range and are essential to the conservation of the species (unoccupied habitat). Due to their small numbers of individuals or low population sizes, suitable habitat and space for expansion or reintroduction are essential to achieving population levels necessary for the recovery of the 45 plant and bird species. We revised the unit boundaries for Maui—Lowland Wet—Unit 1 and Maui—Montane Mesic—Unit 1 that overlapped with Makawao FR, which resulted in acreage reductions in these units as follows: Maui—Lowland Wet—Unit 1: reduced by 138 ac (56 ha) and Maui—Montane Mesic—Unit 1: reduced by 470 ac (191 ha), with 282 ac (114 ha) redefined as part of Maui—Montane
Although DOFAW requested that we remove all portions of Kula FR and Makawao FR from critical habitat, we did not entirely remove these forest reserves from critical habitat designation in this final rule. The portions of the five plant critical habitat units (Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Mesic—Unit 1, Maui—Subalpine—Unit 1, and Maui—Alpine—Unit 1) and the corresponding forest bird critical habitat units (Unit 2—Lowland Wet, Unit 10—Montane Wet, Unit 18—Montane Mesic, and Unit 24—Subalpine) that overlap with the Kula and Makawao FRs are located on the west side of Haleakala, and none of this area is within the State's Priority I watershed protection area (RFF). Therefore, beneficial management actions to address the threats from nonnative species to these ecosystems may not be undertaken for decades, and perhaps not at all. As described above, in response to information received from DOFAW and other parties, we removed an area of approximately 608 ac (247 ha) that overlapped with the Makawao FR upon a determination that this area does not meet the definition of critical habitat. All remaining areas, however, do meet the definition of critical habitat for the reasons described in detail above. DOFAW has proposed some management actions in these areas, but it is unclear whether these actions will be implemented, and in any case, the actions proposed are not likely to make a meaningful contribution to the conservation of the species (
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In addition, we revised the unit boundary we proposed for Maui—Lowland Dry—Unit 1, and this revision resulted in a reduction in Maui—Lowland Dry—Unit 1 by 1,607 ac (650 ha). This revision was based on comments from DOFAW, as well as other interested parties and recent site visits indicating that: (1) Changes in land use had occurred within the proposed critical habitat unit that would preclude certain areas from supporting the physical and biological features; or (2) the area in question was not essential to the conservation of the species. Based upon this information we concluded that the areas in question do not meet the definition of critical habitat, therefore they were removed from the final designation.
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In addition, although DOFAW suggests that these species can be recovered in nearby protected areas such as Kanaio NAR and private lands, the southern portion of the NAR and private lands are not yet protected from feral ungulates, a major threat to listed species in this area. Kanaio NAR extends from 1,000 to 3,000 ft (305 to 900 m) elevation, an area that is not suitable for recovery of coastal or lowland dry species, or species that occur at higher elevations. Conservation management actions such as ungulate eradication from these areas have not yet been funded or implemented. Based on our consideration of all of these factors, we could not conclude that the benefits of excluding this area outweigh the benefits of including it in the final designation of critical habitat.
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Prior to publishing our proposed rule (77 FR 34464; June 11, 2012), we met with representatives of the DHHL on July 22, 2011, and August 30, 2011. At those meetings we provided information regarding our compilation of available information on species and habitat areas on Maui, and requested updated information from the DHHL. The DHHL provided information on its currently developed lands and their lands slated for future homesteads and other development. The DHHL did not express concern regarding critical habitat on lands on which they are conducting conservation actions, such as at Puu o Kali, on Maui. At the time we published our proposed rule (77 FR 34464; June 11, 2012), we notified elected officials, the Maui County Planning Department, and several Hawaiian organizations including Kamehameha Schools, the Office of Hawaiian Affairs (offices for Honolulu, Maui, Molokai, and Lanai), the DHHL, the State Historic Preservation Division, the Kahoolawe Island Reserve Commission, and Kahea-The Hawaiian-Environmental Alliance. Following publication of our proposed rule, we again met with DHHL representatives (October 11, 2012). At that meeting, DHHL staff stated that they need to be able to use their lands to “their fullest ability” and that they may develop wind and geothermal energy projects on the islands of Maui and Molokai in the future. The DHHL provided information on future development and current grazing leases on its lands in proposed critical habitat. In addition, the DHHL expressed interest in developing conservation partnership projects with the Service in the future.
Based on information provided by the DHHL in its March 1, 2013, and June 23, 2015, letters, and at the October 11, 2012, meeting, we reviewed and incorporated new information, and made changes to 4 of the 9 critical habitat units on Maui and all 4 critical habitat units on Molokai that overlapped DHHL's lands. These revisions were based on comments indicating that: (a) Changes in land use had occurred within the proposed critical habitat units that would preclude certain unoccupied areas from supporting the primary constituent elements; and (b) the areas in question were not essential to the conservation of the species. Following our review of the information provided, we removed those unoccupied areas that we determined did not meet the definition of critical habitat. For the remaining areas, while we appreciate any management efforts implemented by DHHL, the fact that management is already taking place does not mean that the area in question does not meet the definition of critical habitat. The Courts have been clear that the statutory standard does not specify that “additional” special management considerations or protections may be required, and the very fact that areas are being actively managed or protected serves as evidence that special management considerations or protections may be required, in accordance with the statutory definition of critical habitat.
Although the DHHL stated that section 7 consultation (due to a nexus created by Federal funding provided to the DHHL) on designated critical habitat on its lands could lead to direct negative economic impacts, they did not indicate how, specifically, they foresee a consultation resulting in such impacts. Our FEA specifically considered the potential effects of critical habitat designation on DHHL lands (IEC 2015, p. 3-6). In communications with DHHL, it was established that most lands proposed as critical habitat are within DHHL's own conservation land use district, so existing management is consistent with the needs of critical habitat. For the proposed critical habitat that overlaps with DHHL's special use district, which may potentially be subject to future energy development, there were no specific plans for any projects, and DHHL stated that they are trying to avoid any development in critical habitat (IEC 2015, p. 3-6). We therefore do not have information to suggest any likely direct negative economic impacts of the designation on DHHL.
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We must base our consideration of potential exclusions on the evidence available to us at the time of rulemaking; there is no mechanism for forecasting exclusions into the future based on conservation plans that have yet to be developed. However, after going through a new rulemaking process, we can revise a critical habitat designation in the future if appropriate.
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As stated in the proposed rule, the supporting documentation we used in developing the proposed critical habitat was available to the public through a combination of online access through
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As described in section 3.1 of the FEA, the analysis integrates the best available information regarding the potential effects of critical habitat on State and county land management based on interviews with staff from the Department of Land and Natural Resources (DLNR)'s Office of Conservation and Coastal Lands (OCCL) and the State Office of Planning, as well as the County of Maui's Department of Planning. According to the State Office of Planning, critical habitat is taken into consideration during the redistricting process, but does not itself generate a redistricting of lands to the Conservation District. According to the County Department of Planning, the presence of critical habitat is one of many factors under consideration during the rezoning process. Representatives from OCCL, the State, and the county were unable to identify an instance in which the presence of critical habitat specifically drove decisions related to redistricting or rezoning. As such, it has not been the State's practice thus far to redistrict critical habitat areas as conservation district lands. The FEA does, however, describe uncertainty with regard to future State and county management of these lands in section 3.4. In addition, section 5.3.2 of the FEA describes the potential indirect effects of critical habitat designation, including concern that the designation may result in costly lawsuits. Uncertainty exists regarding the potential for, as well as the number, timing, and outcome of, such lawsuits, thus associated impacts are not monetized in the economic analysis.
HRS 343 provides a comprehensive review of the environmental impact statement (EIS) process, and describes the applicability and requirements for environmental assessments (EA), regardless of the underlying land classification. It states that an environmental impact statement is required for any proposed land reclassifications under 343-5(2) and 343-5(7) and “any use within any land classified as a conservation district by the State land use commission under Chapter 205.” HRS 343, therefore, provides guidelines for the EIS process and EA process regarding: (a) Land reclassification, and (b) proposed actions or proposed land use changes on lands that are classified as conservation. HRS 343 does not trigger land reclassification as a result of critical habitat designation nor does it prohibit any actions or proposed land use changes in areas designated as critical habitat, whether or not these areas are in the conservation district.
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In this final rule, the critical habitat designation is a combination of areas occupied by the species, as well as areas that are unoccupied (see below, “Recovery Strategy for Hawaiian Plants,” “Recovery Strategy for Two Forest Birds,” and “Recovery Strategy for Three Tree Snails”). For areas considered occupied, the best available scientific information suggests that these species occupied these areas at the time of listing. However, due to the small population sizes, few numbers of individuals, and reduced geographic range of each of the 125 species for which we are designating critical habitat in this rule, we have determined that a designation limited to the known present range of each species would be inadequate to achieve the conservation of those species. The areas that may have been unoccupied at the time of listing have been determined to be essential for the conservation and recovery of the species because they provide the physical or biological features necessary for the expansion of existing wild populations and reestablishment of wild populations within the historical range of the species.
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We made every attempt to avoid including irrigation systems and their related developed structures to support irrigation within the critical habitat areas, as these systems and structures normally do not contain, and are not likely to develop, primary constituent elements and are not otherwise essential to the conservation of these species. Even if we have not been able to exclude every such development from these mapped units, they are not included in critical habitat pursuant to the text of this final rule because they are manmade features. Thus, unless the operation and maintenance of irrigation systems and related developed structures would indirectly affect critical habitat, these systems and structures should not be affected by section 7 of the Act. As for the areas surrounding these structures, in the absence of a Federal nexus (as described above; see response to
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Our FEA considers the direct impacts of critical habitat designation to stem from the consideration of the potential for destruction or adverse modification of critical habitat during section 7 consultations. The administrative costs of conducting section 7 consultation is a direct impact of a designation, as is the implementation of any conservation efforts that might be taken by the action agency in conjunction with section 7 consultation to avoid potential destruction or adverse modification of critical habitat. The total quantified incremental impacts of the critical habitat designation are estimated to be approximately $20,000 on an annualized basis over 10 years (IEc 2015, p. ES-7). The potential for time delays that may be associated with the need to reinitiate section 7 consultation or compliance with other laws triggered by the designation are considered indirect impacts of the designation. Although the FEA highlights which projects or activities may be affected by critical habitat designation, significant uncertainty and data limitations largely preclude the quantification of indirect impacts (IEc 2015, p. ES-7).
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Both before and following publication of our June 11, 2012, proposed rule (77 FR 34464), the Service contacted many landowners. Some allowed site visits, and some did not reply to our requests, or did not state that they desired a site visit by Service biologists. Much of our identification of the physical or biological features can be achieved using remote sensing data; in no case did Service staff enter private lands without the express permission of the landowner. Based on comments and information provided during the public comment periods indicating that information in our proposed rule was in error, or there had been changes in land use that would preclude certain areas from supporting the primary constituent elements (occupied areas), or the areas in question were not essential to the conservation of the species (unoccupied areas), we have removed such areas from the final designation because they do not meet the definition of critical habitat. In addition, some areas were excluded from critical habitat under section 4(b)(2) of the Act. All of these changes to areas proposed as critical habitat are described in the Summary of Changes from Proposed Rule, below.
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We agree that more could be done to help ameliorate the threats to these 125 species and their habitats. Conservation efforts are challenged by the number of threats, the extent of these threats across the landscape, and the lack of sufficient resources (
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In response to the second concern, the designation of critical habitat on private lands would only affect current or ongoing land management practices when there is a Federal nexus. In our June 11, 2012, proposed rule (77 FR 34464) and in this final rule (see
(1) Federal actions that would appreciably degrade or destroy the physical or biological features for the species including, but not limited to, the following: Overgrazing; maintaining or increasing feral ungulate levels; clearing or cutting native live trees and shrubs (
(2) Federal actions that would alter watershed characteristics in ways that would appreciably reduce groundwater recharge or alter natural, wetland, aquatic, or vegetative communities. Such actions include new water diversion or impoundment, excess groundwater pumping, and manipulation of vegetation through activities such as the ones mentioned in (1), above.
(3) Recreational activities that may appreciably degrade vegetation.
(4) Mining sand or other minerals.
(5) Introducing or encouraging the spread of nonnative plant species.
(6) Importing nonnative species for research, agriculture, and aquaculture, and releasing biological control agents.
Our FEA acknowledges the potential for critical habitat designation to increase the vulnerability of private landowners to legal challenges regarding their operations (IEc 2015, pp. 5-20). Due to significant uncertainties regarding the extent to which the designation will increase the probability of legal challenges (over and above the
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Critical habitat does not give the Federal Government authority to control or otherwise manage gathering of plants on non-Federal land or in the absence of some other Federal action. However, the State of Hawaii regulates the gathering of plants that are State listed as endangered or threatened on both private and State lands (HRS (section195D-4(e), 4(f), and 4(g)). Gathering of native plants that are not State listed on private lands is not regulated by the State of Hawaii. Gathering of native plants that are not State listed on State lands is regulated by the State (Hawaii Administrative Rules—Title 13).
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Several commenters submitted comments regarding the designation of critical habitat in proposed Maui—Lowland Dry—Unit 3, and we grouped similar comments together relating specifically to this unit below.
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Once known from the islands of Kauai, Oahu, Molokai, Lanai, Maui, Hawaii, and possibly Kahoolawe,
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We believe the commenter's second point regarding the endemism of
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(a) The Nature Conservancy's Ecoregional Assessment of the Hawaiian High Islands (2006) and ecosystem maps (2007);
(b) Natural Resources Conservation Service's soil type analysis data layer for GIS mapping;
(c) Ecosystem community analyses by Gagne and Cuddihy (1999, pp. 45-114);
(d) Geographic information system maps of habitat essential to the recovery of Hawaiian plants (Hawaii and Pacific Plant Recovery Coordinating Committee 1998);
(e) GAP (geographic analysis program) vegetation data (GAP 2005);
(f) Projections of geographic ranges of plant species in the Hawaiian Islands, including climate data, substrate data, topography, soils, and disturbance, Price
(g) Final critical habitat designations for the island of Lanai (68 FR 1220; January 9, 2003); and
(h) Recent biological surveys, site visits, and scientific reports regarding species and their habitats.
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For each tree snail,
(123) According to one commenter, the proposed rule violates the Act, Administrative Procedure Act (APA; 5 U.S.C. Subchapter II), various Executive Orders, and the 2002 memorandum of agreement between the Service and Castle and Cooke Resorts.
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• Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
• Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
• Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
• Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.
Like the proposed rule, this final rule does not meet any of these criteria, and OIRA does not consider it to be a significant regulatory action.
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We do not need to submit a summary of the potential effects of this designation on the supply, distribution, or use of energy (Energy Supply, Distribution, or Use—Executive Order 13211), because our regulatory action would not result in a “significant adverse effect” as defined by Office of Management and Budget (OMB) Memoranda 01-27 (Guidance for Implementing E.O. 13211) (July 13, 2001).
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Comments From the State of Hawaii Agencies on the DEA
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In the case of Oahu, the commenter has overstated the range of potential impacts to land values estimated in the DEA (IEc 2013). Potential effects to land values were forecast only in the context of one particular critical habitat unit that was slated for development, Lowland Dry 8. In that case, we stated “The Service believes that a realistic lower-bound estimate of the potential economic impacts to the landowners in Lowland Dry 8 is no impact at all. The Service cannot identify any realistic Federal nexus on the types of future uses identified. Critical habitat designations have no effect on private actions on private property absent a Federal nexus that would allow the Service to consult on the activity with its Federal partner.” The possible decrease in land value cited by the commenter refers to the “worst case scenario” contemplated in the DEA that no future development would proceed on the property at all; this scenario was included to be conservative, but is described as “extremely unlikely to occur” (IEc 2013, p. 74). The designation of critical habitat does not prevent development from occurring; it requires Federal agencies to avoid destruction or adverse modification of critical habitat. Even if such a finding is made, we will attempt to recommend reasonable and prudent alternatives. Therefore, we have no basis to assume that development would be prohibited.
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In contrast to section 9, which sets forth protections that apply to individuals of the listed species, critical habitat receives protection under section 7 of the Act. The requirements of section 7 apply to Federal agencies and requires that these agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Section 7 requirements do not apply to non-Federal landowners absent a Federal nexus. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. The designation does not allow the government or public to access private lands, and does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
We do acknowledge that in some highly unusual cases, wherein a landowner undertakes an action with a Federal nexus, and that action is so significant to the critical habitat as a whole as to be considered potential adverse modification, some reasonable and prudent alternatives may result in significant costs. We recognize this possibility in our FEA, which underscores that such a situation may have a potentially major effect on the economic impacts as estimated in our analysis. Specifically, the FEA clarifies that while we anticipate that the most likely change in conservation recommendations, if any, would be the additional specification that habitat offsets occur within the affected critical habitat unit, or within critical habitat of the same type (based on our past experience with consultation), nonetheless “final recommendations to avoid adverse effects on critical habitat will depend upon the specific nature of the proposed project and will be made as part of future consultation on the project” (IEc 2015, p. 3-21). Because of the significant uncertainties surrounding the probability of such a situation arising, and the entirely speculative nature of what reasonable and prudent alternatives might be called for in such a hypothetical, it is not possible to quantify such potential impacts. We therefore acknowledge in our FEA that our assumptions regarding the effect of critical habitat designation on potential conservation recommendations may result in an underestimate of costs (IEc 2015, p. 3-21).
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Second, the purpose of the DEA is not to “support the designation,” but to inform the Secretary for the purpose of considering the potential economic impacts of the designation, as required by section 4(b)(2) of the Act. Specifically, the information contained in the DEA is intended to assist the Secretary in determining whether the benefits of excluding particular areas from the designation outweigh the benefits of including those areas in the designation. Our DEA, and subsequent FEA, analyzed the potential for both direct and indirect incremental impacts of the critical habitat designation; this analysis is thoroughly detailed and documented, and clearly identifies the source of all relevant facts and figures utilized (IEc 2015, entire). The FEA incorporates consideration of all reasonably foreseeable potential economic impacts, including some that were not initially recognized but that were identified during the public comment periods; this includes consideration of the potential impacts of the designation on ongoing or proposed development projects, energy projects,
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The “ecosystem approach” used in this rule is not unprecedented, but has been used in similar rulemakings for species in the Hawaiian islands as an organizational tool due to many of the characteristics shared by the listed species (for example, 48 Species on Kauai; 75 FR 18959, April 13, 2010). These characteristics include common threats to the essential physical or biological features (
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In preparing this final rule, we reviewed and fully considered comments from the public on the proposed critical habitat designation for 135 Maui Nui species. This final rule incorporates the following substantive changes to our proposed designation, based on the comments we received:
(1) In the Methods section of our June 11, 2012 proposed rule (77 FR 34464), we explained that we used the recovery areas delineated in the Service's 2006 Revised Recovery Plan for Hawaiian Forest Birds to assist us in our identification of proposed critical habitat. In response to public comments, in this final rule we have expanded our discussion of how we used the information in that plan, which we consider to be the best scientific data available, to explain the need to designate critical habitat in unoccupied areas for the akohekohe and kiwikiu. In addition, we have outlined the goals and necessary management actions to ensure the conservation of these two endangered forest birds within their existing occupied habitat and those unoccupied habitats identified as necessary for their conservation (see
(2) We have included additional information on disease and disease vectors in our discussion of Hawaiian forest birds (see “Disease and Disease Vectors” in
(3) In response to public comments, we have included additional information from the Service's recovery plans for one or more of the Maui Nui plants to further clarify why it is essential to the conservation of each species to designate critical habitat in unoccupied areas and to include area for the expansion or augmentation of existing populations. In addition, although we had explained in our proposed rule (June 11, 2012; 77 FR 34464) that we had relied, in part, on maps of habitat essential to the recovery of Hawaiian plants, as determined by the HPPRCC (1998, 32 pp. + appendices), in response to public comments received, in this final rule we have provided further clarifying information on the overall recovery goals and objectives for Hawaiian plants (see “Recovery Strategy for Hawaiian
(4) We have included additional information on current recovery delisting objectives for the three tree snails included in this final rule (see “Recovery Strategy for Three Tree Snails,” below), to further clarify the habitat needs of these species in response to public comments.
(5) We have included additional information on the threat posed by the predatory rosy wolf snail (
(6) We made revisions to the primary constituent elements (PCEs) for eight plants, based on comments we received. Because of these PCE revisions, we removed
(7) We had specifically described in the text of the proposed rule (June 11, 2012; 77 FR 34464) that space within the appropriate habitats for population growth and expansion, as well as to maintain the historical geographical and ecological distribution of each species, is an essential physical or biological feature for each of the Maui Nui species. In this final rule, in response to public comment, we have expanded that discussion to further clarify why additional suitable habitat in areas that are currently unoccupied, or that may have been unoccupied at the time of listing, is essential for the conservation of each of the Maui Nui species.
(8) We have modified Table 5, Physical or Biological Features in Each Ecosystem, so that the heading for canopy, subcanopy, and understory plants reads “Supporting one or more of these associated native plant genera” instead of “Capable of supporting one or more of these associated native plant genera,” to make it clear that the presence of one or more of the associated native plant genera identified is a physical or biological feature for the listed species in each ecosystem.
(9) We are removing the entry for “Family Rhamnaceae:
(10) We revised the unit boundaries proposed for Molokai, Maui, and Kahoolawe, based on comments indicating that changes in land use had occurred within the proposed critical habitat units that would preclude certain occupied areas from supporting the primary constituent elements, or that the unoccupied areas in question were not essential to the conservation of the species. Such areas do not meet the statutory definition of critical habitat, therefore we removed them from the final designation. In addition, portions of some units were excluded from critical habitat under section 4(b)(2) of the Act (as described in the section
Table 3. Summary of Changes From Proposed Rule—Critical Habitat Units With Changes to Area (Note: Units that are unchanged are not shown in this table, hence final acreages do not sum up to equal the total final critical habitat). All changes are reductions unless otherwise noted; values denoted with a plus sign (+) are additions to units. In many cases, additions reflect acres that were initially misclassified into a different ecosystem unit and were simply moved from one unit to another (thus those acres are reflected as a reduction in a different unit under the Boundary Adjustment column).
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot otherwise be relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public access to private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the Federal action agency's and the applicant's obligation is not to restore or recover the species, but to
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) essential to the conservation of the species and (2) that may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; or other unpublished materials and expert opinion or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine to be necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time a species is determined to be endangered or threatened. Our regulations at 50 CFR 424.12(a)(1) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) such designation of critical habitat would not be beneficial to the species.
On May 28, 2013, we published the final rule to list as endangered 38 Maui Nui species (35 plants and 3 tree snails) and reaffirm the listing as endangered of two endemic Hawaii plants (78 FR 32014). These 40 species include 3 tree snails and 37 plants, as follows: Newcomb's tree snail (
We listed the akohekohe or crested honeycreeper and the kiwikiu or Maui parrotbill as endangered species in 1967 (32 FR 4001; March 11, 1967), under the Endangered Species Preservation Act of 1966 (precursor to the Endangered Species Act of 1973). Critical habitat was not determined at that time because it was not required under the Act until 1978. Neither the akohekohe nor the kiwikiu is threatened by taking or other human activity (32 FR 4001, March 11, 1967; USFWS 2006, pp. 2-81 to 2-82, 2-142).
At the time we listed the plant
We listed the plant
We reviewed the information available for the 39 endangered plants, 3 tree snails, and the 2 endangered birds (akohekohe and kiwikiu) pertaining to the biological needs of these 44 species and characteristics of their last known habitats. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits to the 39 endangered plants, the 3 tree snails, and the 2 endangered birds (akohekohe and kiwikiu) include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species.
There are two plant species,
The primary regulatory effect of critical habitat is the section 7(a)(2) requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. We find that the designation of critical habitat for each of the 44 endangered species identified above will benefit it by serving to focus conservation efforts on the restoration and maintenance of ecosystem functions that are essential for attaining its recovery and long-term viability. In addition, the designation of critical habitat serves to inform management and conservation decisions by identifying any additional physical or biological features of the ecosystem that
(1) Plants—
(2) Animals—birds: akohekohe and kiwikiu; snails:
As stated above, section 4(a)(3) of the Act requires the designation of critical habitat concurrently with the species' listing “to the maximum extent prudent and determinable.” Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act provides for an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas occupied by the species at the time of listing to designate as critical habitat, we consider those physical and biological features essential to the conservation of the species that may require special management considerations or protection. The primary constituent elements of critical habitat include, but are not limited to:
(1) Space for individual and population growth, and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of a species.
We are currently unable to identify the physical and biological features that are considered essential to the conservation of the plant
Although we have determined that the designation of critical habitat is prudent for the plant
We listed the plant
In this section, we discuss the designation of critical habitat for 50 listed plants and animals on the islands of Maui Nui (39 of the 40 species discussed above in our listing proposal and reevaluation, for which we concluded that critical habitat was both prudent and determinable; 2 listed bird species (akohekohe or crested honeycreeper and kiwikiu or Maui parrotbill); and 9 listed plants
The lack of detailed scientific data on the life history of the 130 plant species in this final rule makes it impossible for us to develop a robust quantitative model (
For 95 of these plant species, the overall recovery strategy, outlined in the approved recovery plans, includes: (1) Stabilization of existing wild populations; (2) protection and management of habitat; (3) enhancement of existing small populations and reestablishment of new populations within historical range; and (4) research on species biology and ecology (Service Recovery Plan for
The overall recovery goal stated in the recovery plans for each of 95 plant species with approved recovery plans and which we have applied to the 35 plant species without recovery plans, includes the establishment of 8 to 10 populations with a minimum of 100 mature, reproducing individuals per population for long-lived perennials; 300 mature, reproducing individuals per population for short-lived perennials; and 500 mature, reproducing individuals per population for annuals. These are the minimum population targets set for considering delisting of the species, which we consider the equivalent of achieving the conservation of the species as defined in section 3 of the Act (hereafter we refer to these delisting objectives as defined in recovery plans or by the HPPRCC (1998) as simply “recovery objectives”). (There is only one exception to the criteria above, and that is
By adopting the specific recovery objectives enumerated above, the adverse effects of genetic inbreeding and random environmental events and catastrophes, such as landslides, floods, and hurricanes, which could destroy a large percentage of a species at any one time, may be reduced (Kramer
In conclusion, for the 130 plant species addressed in this final rule, their conservation is dependent upon the protection of habitat for existing population sites, including room for population growth and expansion, and suitable unoccupied habitat within their historical range to provide for the requisite resiliency, redundancy, and representation of populations through restoration and reintroductions (see Unoccupied Areas, below).
The recovery strategies for the akohekohe and kiwikiu are generally similar because these two birds inhabit similar geographic areas and face common threats (Service 2006, pp. 2-83, 2-143). These recovery strategies, enumerated in the Service's 2006 Revised Recovery Plan for Hawaiian Forest Birds (pp. 2-83, 2-143), include the protection, restoration, and management of native high-elevation habitat on east Maui; research to understand the threats from disease and predation; and reestablishment (through captive propagation (both akohekohe and kiwikiu) or translocation of wild-caught adult birds (kiwikiu)) of a second population of both species in historical habitat on west Maui or east Molokai to reduce the risk of extinction due to catastrophic events, such as hurricanes and disease outbreaks (Service 2006, pp. 2-83, 2-143). Currently, there is only one population each of the akohekohe and kiwikiu, both on the windward side of Haleakala, east Maui. Suitable habitat is needed in other areas to achieve at least two populations or a metapopulation of each species on the islands of Maui Nui. The akohekohe and kiwikiu are known to have occurred on Molokai. West Maui and Molokai contain intact native forest suitable for both species, except for the presence of mosquitoes and avian diseases. Haleakala supports a population of approximately 3,800 akohekohe that occupy 22 sq mi (58 sq km), and a population of approximately 500 kiwikiu that occupy about 19 sq mi (59 sq km). For each species these areas represent less than 5 percent of the estimated historical ranges on Maui. Both species appear to occupy almost all habitat that is currently suitable, because of disease constraints at lower elevations. To ensure the potential for population increase, additional habitat must be restored from 4,000 to 7,000 ft (1,200 to 2,000 m) on the leeward slopes and from 5,000 to 7,000 ft (1,500 to 2,000 m) on the western slopes, including a lower elevational limit of 2,500 ft (750 m) on windward Haleakala to encompass nonbreeding habitat for some birds following seasonal flowering downslope. A recovery area on west Maui, from 2,500 ft (750 m) to the summit (5,800 ft (1,800 m) that encompasses suitable forest habitat, most of which is already managed for conservation, with large areas of native forest, would provide a second geographically disjunct population for each of these species. A recovery area on Molokai, from 2,500 ft (750 m) to the summit, would encompass forest habitat suitable for the two forest birds, and currently, upper elevations are managed for conservation, with management still required for control and prevention of avian disease. This would provide for population increases and populations disjunct from the island of Maui, in case of catastrophic events. The establishment of these additional populations in unoccupied but suitable habitat is essential to the conservation of these two bird species, as each remains highly vulnerable to extinction through either a single catastrophic event or a disease epizootic, since each species has been reduced to only a single population.
The recovery plan also provides the recovery criteria for delisting the akohekohe and kiwikiu (
In conclusion, for both of these birds, their conservation is dependent upon the protection of existing population sites and suitable unoccupied habitat within their historical range. Unoccupied but suitable habitat, as described in the Revised Forest Birds Recovery Plan, is essential for the conservation of both bird species to provide for the expansion of extant populations, as well as sites for translocation or reintroduction to establish additional populations essential to the conservation of the species. Areas both on east and west Maui, and on Molokai, are designated as critical habitat because these areas are necessary to promote natural demographic and evolutionary processes, and to allow the species to expand into potential habitat in a “ring” of suitable forest at upper elevations where mosquitoes (that spread disease) are rare. Reestablishment of these forest birds on west Maui or Molokai is necessary; however, it is uncertain in exactly which area (east or west Maui, or Molokai) a new population of birds might have the most success in reestablishing. Relatively large areas of suitable unoccupied habitat are needed to support the additional populations that are essential to the conservation of each species, based on the large home ranges of the birds, their territorial behavior, and the requisite availability of food sources that are ephemeral on the landscape and therefore shift in geographic location over time (
Only one recovery plan is available for listed Hawaiian tree snails, and it is for 41 species on Oahu previously listed as endangered (Service Recovery Plan for Oahu Tree Snails of the Genus
In summary, the overall recovery of these 135 Hawaiian species (130 plants, 2 forest birds, and 3 tree snails) in this final rule includes protection of existing populations and their habitat, augmentation of existing populations and reestablishment of new populations within their historical range, control of threats, research on species' biology and ecology, and research on abatement and control of threats that are currently not addressed. Relevant to this designation of critical habitat, the recovery of these 135 Hawaiian species therefore requires a combination of both presently occupied habitat (to protect existing populations) and unoccupied habitat (for expansion or augmentation of existing populations and reestablishment of new populations within their historical range) (see Occupied Areas and Unoccupied Areas, below).
Under section 4(a)(3)(A)(ii) of the Act we may, as appropriate, revise a critical habitat designation. In 1984, we designated critical habitat for a single species of plant,
Approximately 64 percent of the area we are designating as critical habitat in this rule overlaps with the areas already designated in the 1984 and 2003 final critical habitat rules. In some areas, the footprint of the revision is larger than the 1984 and 2003 designations, to accommodate the expansion of species' ranges within the particular ecosystem in which they occur (
Here we have reevaluated the physical or biological features for each of the 85 plant species for which we are revising critical habitat, based on habitat type using species information from the 1984 and 2003 critical habitat designations, and new scientific information that has become available since that time. As noted above, in 1984 and 2003, the physical or biological features for each plant species were defined on the basis of the habitat features of the areas actually occupied by the plants, which included plant community, associated native plant species, locale information (
As required by section 4(b) of the Act, we used the best scientific data available in determining those areas occupied at the time of listing and that contain the physical or biological features essential to the conservation of the 135 species, and those areas that may be unoccupied but are essential to the conservation of the species, by identifying the occurrence data for each species and determining the ecosystems upon which they depend. This information was developed by using:
• The known locations of the 135 species, including site-specific species information from the Hawaii Biodiversity and Mapping Program (HBMP) database (HBMP 2010), the TNC database (TNC 2007), and our own rare plant database;
• Species information from the plant database housed at the National Tropical Botanical Garden (NTBG);
• Maps of habitat essential to the recovery of Hawaiian plants, as determined by the Hawaii and Pacific Plant Recovery Coordinating Committee (HPPRCC 1998, 32 pp. + appendices);
• Recovery area as determined in the revised Recovery Plan for Hawaiian Forest Birds (USFWS 2006);
• Maps of important habitat for the recovery of plants protected under the Act (USFWS 1999, pp. F8-F11);
• Projections of geographic ranges of plant species in the Hawaiian Islands, including climate data, substrate data, topography, soils, and disturbance, Price
• Recovery plans that are available for 95 of the plant species (Recovery Plan for
• Recovery plan for Oahu tree snails (Recovery Plan for Oahu Tree Snails of the Genus
• The Nature Conservancy's Ecoregional Assessment of the Hawaiian High Islands (2006) and ecosystem maps (TNC 2007);
• Color mosaic 1:19,000 scale digital aerial photographs for the Hawaiian Islands (April to May 2005);
• Island-wide Geographic Information System (GIS) coverage (
• 1:24,000 scale digital raster graphics of U.S. Geological Survey (USGS) topographic quadrangles;
• Geospatial data sets associated with parcel data from Maui County (includes Molokai, Lanai, Maui, and Kahoolawe) (2010);
• Final critical habitat designations for
• Recent biological surveys and reports; and
• Discussions with qualified individuals familiar with these species and ecosystems.
Based upon all of this data, we determined that one or more of the 11 habitat types described in this rule are currently occupied or were occupied at the time of listing by one or more of the 135 species addressed in this rule and contain the physical or biological features essential to the conservation of the species, or are currently not occupied by one or more of the 135 species but are areas essential for the conservation of the species (coastal (TNC 2006a), lowland dry (TNC 2006b), lowland mesic (TNC 2006c), lowland wet (TNC 2006d), montane wet (TNC 2006e), montane mesic (TNC 2006f), montane dry (TNC 2006g), subalpine (TNC 2006h), alpine (TNC 2006i), dry cliff (TNC 2006j), and wet cliff (TNC 2006k)).
In accordance with section 3(5)(A)(i) of the Act, we determine which areas within the geographical area occupied at the time of listing contain the physical and biological features essential to the conservation of the species, and which may require special management considerations or protection. These physical or biological features provide the essential life-history requirements of the species, and include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing (or development) of offspring, germination, or seed dispersal; and
(5) Habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of a species.
For plant species, ecosystems that provide appropriate seasonal wetland and dry land habitats, host species, pollinators, soil types, and associated plant communities are taken into consideration when determining the physical or biological features essential for a species. For the two forest bird species, ecosystems that provide appropriate forest habitat for shelter, breeding, reproduction, rearing (or development) of offspring and nutritional requirements are taken into consideration when determining the physical or biological features essential for both species. For tree snail species, ecosystems that provide appropriate host plant species for shelter, reproduction, and nutritional
Under section 4(a)(3)(A)(ii) of the Act we may, as appropriate, revise a critical habitat designation. For the reasons described above, we are revising critical habitat for 85 plants from Molokai, Lanai, Maui, and Kahoolawe, based on new information received since the original designations and the need to designate unoccupied habitat to conserve the species. In addition, the recovery plans for 95 of the plant species (see list, above) identify several actions needed to recover these species (see above, “Recovery Strategy for Hawaiian Plants,” “Recovery Strategy for Two Forest Birds,” and “Recovery Strategy for Three Tree Snails”), including: (1) Protecting habitat and controlling threats; (2) expanding existing wild populations; (3) conducting essential research; (4) developing and maintaining monitoring plans; (5) reestablishing wild populations within the historical range; and (6) validating and revising recovery criteria. Of these actions essential for the conservation and recovery of these species, of primary relevance to this designation of critical habitat for the Maui Nui species is the objective of providing for expansion or augmentation of existing wild populations (relevant to consideration of occupied critical habitat) and the need for reintroduction and reestablishment of populations within the historical range (relevant to the consideration of unoccupied critical habitat). For species with recovery plans, recovery criteria have been established, and generally include specific objectives in terms of numbers of populations and individuals that are needed to achieve the conservation of the species. Where such objectives exist, we considered them in our identification of critical habitat (
We derive the specific physical and biological features required for each of the plant and animal species from studies of the species' habitat, ecology, and life history as described in the Critical Habitat section of the June 11, 2012 (77 FR 34464), proposed rule, and in the information presented below. The consideration of whether space for the expansion or augmentation of current occurrences or populations is needed, in light of the recovery objectives for each species and its current status, was also taken into account in our derivation of the physical or biological features essential to the conservation of the species.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the 135 species in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
The primary constituent elements identified in this final rule take into consideration the habitat types in which each species occurs and reflect a distribution that we believe is essential to achieving the species' recovery needs within those ecosystems. As described above, we considered the current population status of each species, to the extent it is known, and assessed its status relative to the recovery objectives for that species, in terms of population goals (numbers of populations and individuals in each population, which contributes to population resiliency) and distribution (whether the species occurs in habitats representative of its historic geographical and ecological distribution, and are sufficiently redundant to withstand the loss of some populations over time). This assessment informed us as to whether the species requires space for population growth and expansion in areas occupied at the time of listing, or whether additional areas unoccupied at the time of listing may be required for the reestablishment of populations to achieve conservation.
In this final rule, primary constituent elements for each of the 135 species are defined based on those physical or biological features essential to support the successful functioning of the habitat type upon which each species depends, and which may require special management considerations or protection. As the conservation of each species is dependent upon functioning habitat to provide its fundamental life requirements, such as a certain soil type, minimum level of rainfall, or suitable native host plant, we consider the physical or biological features present in the ecosystems described in this rule to provide the necessary PCEs for each species. These features collectively provide the suite of environmental conditions within each ecosystem essential to meeting the requirements of each species, including space for individual and population growth, and for normal behavior, the appropriate microclimatic conditions for germination and growth of the plants (
Table 5 identifies the physical or biological features of a functioning ecosystem for each of the habitat types identified in this final rule, and each species identified in this rule requires the physical or biological features for each ecosystem in which that species occurs. These physical or biological features provide the PCEs for the individual species in each ecosystem or habitat type. The physical or biological features are defined here by elevation, annual levels of precipitation, substrate type and slope, and the characteristic native plant genera that are found in the canopy, subcanopy, and understory levels of the vegetative community where applicable. If further information is available indicating additional, specific life-history requirements for some species, PCEs relating to these requirements are described separately and are termed “species-specific PCEs,” which are identified in Table 6. The PCEs for each species are therefore composed of the physical or biological features found in its functioning ecosystem(s) (Table 5), in combination with additional requirements specific to that species, if any (Table 6). Note that the PCEs identified in Table 6 for each species are directly related to the physical or biological features presented in detail in Table 5; thus, both Tables 5 and 6 must be read together to fully describe all of the PCEs for each species.
Some of the species addressed in this final rule occur in more than one ecosystem. The PCEs for these species are described separately for each ecosystem in which they occur. The reasoning behind this approach is that each species requires a different suite of environmental conditions depending upon the ecosystem in which it occurs. For example,
Some examples may help to clarify our approach to describing the PCEs for each individual species. If we want to determine the PCEs for the plant
As another example, Table 6 indicates the physical or biological features for the plant
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection.
In identifying critical habitat in occupied areas, we determine whether those areas that contain the features essential to the conservation of the species require any special management actions. Although the determination that special management may be required is not a prerequisite to designating critical habitat in unoccupied areas, special management is needed throughout all of the critical habitat units in this final rule. The following discussion of special management needs is therefore applicable to each of the Maui Nui species for which we are designating critical habitat in this rule.
In this final rule, we are designating critical habitat for 125 of the 135 species for which we proposed critical habitat. For the reasons described below (see
All designated critical habitat requires active management to address the ongoing degradation and loss of native habitat caused by nonnative ungulates (pigs, goats, mouflon sheep, axis deer, and cattle). Nonnative ungulates also impact the habitat through predation and trampling. Without this special management, habitat containing the features that are essential for the
All designated critical habitat requires active management to address the ongoing degradation and loss of native habitat caused by nonnative plants. Special management is also required to prevent the introduction of new nonnative plant species into native habitats. Particular attention is required in nonnative plant control efforts to avoid creating additional disturbances that may facilitate the further introduction and establishment of invasive plant seeds. Precautions are also required to avoid the inadvertent trampling of listed plant species in the course of management activities.
The active control of nonnative plant species would help to address the threat posed by fire to 31 of the designated ecosystem critical habitat units in particular: Maui-Coastal—Units 4 through 7; Maui-Lowland Dry—Units 1 through 6; Maui-Lowland Mesic—Units 1 and 2; Maui-Montane Mesic—Units 1, 2, and 5; Maui-Dry Cliff—Units 1, 5, and 7; Kahoolawe-Coastal—Units 1 through 3; Kahoolawe-Lowland Dry—Units 1 and 2; Molokai-Coastal—Units 1, 2, 3, 6, and 7; Molokai-Lowland Dry—Units 1 and 2; and Molokai-Lowland Mesic—Unit 1. This threat is largely a result of the presence of nonnative plant species such as the grasses
Nine of the ecosystem critical habitat units (Maui-Lowland Wet—Units 1 and 4; Maui-Montane Wet—Units 1 through 3; Maui-Montane Mesic—Unit 2; Maui-Wet Cliff—Units 6 and 7; and Molokai-Montane Wet—Unit 1) may require special management to reduce the threat of landslides, rockfalls, and flooding. These threaten to further degrade habitat conditions in these units and have the potential to eliminate some occurrences of 50 plant species (
All of the forest bird critical habitat units may require special management to reduce the threat of mosquitoes. Mosquito-borne disease (
The only critical habitat unit for the Newcomb's tree snail (
In summary, we find that each of the areas we are designating as critical habitat that were occupied at the time of listing contains features essential for the conservation of the species that may require special management considerations or protection to ensure the conservation of 125 Maui Nui species. These special management considerations and protections may be required to preserve and maintain the essential features provided to these species by the ecosystems upon which they depend.
Under section 3(5)(A)(ii) of the Act, we may designate as critical habitat specific areas outside the geographical area occupied by the species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Here we have designated critical habitat for 17 plant species that historically occurred on the islands of Maui Nui but are no longer found on these islands. Ten of these plants were historically found on one or more of these islands, but are currently found only on other Hawaiian Islands (
One of the primary reasons for listing of these 125 species is that their numbers have been so greatly reduced in terms of numbers of individuals, populations, and distribution as to render these species vulnerable to extinction. Based on the current status of each species (see Current Status of 135 Listed Maui Nui Species, above), we have determined that each requires suitable habitat and space for the expansion of existing populations to achieve a level that could approach recovery; in all cases, this requires areas of suitable habitat that are not currently occupied by the species. Most of these species have been reduced to only a few known occurrences with numbers so low that not even a single existing viable population is known; in such cases, suitable but unoccupied habitat is essential for the conservation of the species to both expand and reestablish populations and maintain its historical geographical and ecological distribution. In addition, for plant species in particular, the reintroduction of imperiled species is a relatively new and inexact science (see,
We have taken all of these factors into account in our designation of unoccupied habitat for the Maui Nui species, and have concluded that more potentially suitable habitat than what would appear to be the minimum required to achieve conservation goals is essential, space is needed between populations, and a stochastic event may negatively impact one or more populations. Given the need for this redundancy in unoccupied habitat suitable for future reintroductions, because populations must be widely distributed across the range of the species to protect each against extirpation from stochastic events, and because room is needed for expansion of known occurrences, we conclude that all of the unoccupied areas designated here as critical habitat are essential to the conservation of the species, in order to achieve the requisite abundance and distribution of stable, secure, and self-sustaining populations to consider the species recovered. As described above, for similar reasons we have designated unoccupied habitat for the akohekohe and kiwikiu based on the recovery areas identified in the Revised Recovery Plan for Hawaiian Forest Birds (Service 2006), and for future reintroduction sites for the three tree snails based on the interim recovery objectives as identified in the Recovery Plan for Oahu Tree Snails of the Genus
As required by section 4(b)(1)(A) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of the species. In accordance with the Act and our implementing regulations at 50 CFR 424.12(e), we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If after identifying currently occupied areas, a determination is made that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations at 50 CFR 424.12(e), we then consider whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. We are designating critical habitat in areas outside the geographical area occupied by the species at the time of listing because we have determined that such areas are essential for the conservation of the species.
We considered several factors in the selection of specific boundaries for critical habitat for the Maui Nui species. We determined critical habitat unit boundaries taking into consideration the known past and present locations of the species, areas determined to be essential to Hawaiian plants (HPPRCC 1998, entire), the recovery areas as determined by species' Recovery Plans (for plants, birds, and tree snails), any previously designated critical habitat for the species, projections of geographic ranges of Hawaiian plant species (Price
The critical habitat is a combination of areas currently occupied by the species in that ecosystem, as well as areas that may be currently unoccupied. Due to the extremely remote and inaccessible nature of the area, surveys are relatively infrequent and may be limited in scope; therefore, it is difficult to say with certainty whether individual representatives of a rare species may or may not be present. A properly functioning ecosystem provides the life-
In some cases, we have identified areas of critical habitat for species in multiple ecosystem areas. With the exception of
On Maui, there are two distinct geographic areas separated by an isthmus (east and west Maui mountains) with geological and evolutionary age differences. Sixty-three of the plant species and the tree snail
The critical habitat areas described below constitute our best assessment of the physical or biological features essential for the recovery and conservation of 125 Maui Nui species, and the unoccupied areas needed for the expansion or augmentation of reduced populations or reestablishment of populations. The approximate size of each of the 82 plant critical habitat units, the 82 forest bird critical habitat units (41 units for each bird), and the tree snail critical habitat unit, and the status of their land ownership, are identified in Tables 7A through 7F. The ecosystems in which critical habitat for each of the plant, forest bird, and tree snail species is designated are identified in Tables 8A through 8C, along with areas excluded from critical habitat designation under section 4(b)(2) of the Act (see Exclusions, below). All forest bird and tree snail critical habitat units overlap areas designated as plant critical habitat.
When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack the physical or biological features essential for the conservation of the 125 Maui Nui species. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the regulatory portion of this final rule. The coordinates or plot points or both on which each map is based are available to the public on
Units are designated based on sufficient elements of physical or biological features being present to support the species' life processes. Some units contain all of the identified elements of physical or biological features and supported multiple life processes. Some units contain only some elements of the physical or biological features necessary to support the species' particular use of that habitat.
We are designating 157,002 ac (63,537 ha) as critical habitat in 11 ecosystem types for 125 species. The critical habitat is composed of 82 critical habitat units for the plant species, 41 critical habitat units for each of the 2 forest birds (82 total), and one critical habitat unit for the Newcomb's tree snail (see Tables 7A-7F, above, for details). The critical habitat includes land under State, County of Maui, Federal (Haleakala National Park; Kalaupapa National Historical Park (NHP), Department of Homeland Security—Coast Guard), and private ownership. The critical habitat units we describe below constitute our current best assessment of those areas that meet the definition of critical habitat for 125 of the 135 Maui Nui species of plants and animals. Critical habitat was proposed but is not designated for 10 species that occur on Lanai (the plants
Critical habitat for the 125 plant species, the 2 forest birds, and the Newcomb's tree snail
Maui—UCoastal—Unit 1 consists of 2 ac (1 ha) on Keopuka Rock on the northern coast of east Maui. This unit is State-owned, and is classified as a State Seabird Sanctuary. It is occupied by the plant
Maui—Coastal—Unit 2 consists of 16 ac (6 ha) of State land, and 9 ac (4 ha) of privately owned land, from Wahinepee Stream to Moiki Point on the northern coast of east Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the coastal ecosystem (see Table 5). Although Maui—Coastal—Unit 2 is not currently occupied by
Maui—Coastal—Unit 3 consists of 10 ac (4 ha) of privately owned land at Pauwalu Point on the northern coast of east Maui. This unit is occupied by the plant
Maui—Coastal—Unit 4 consists of 40 ac (16 ha) of State land, and 35 ac (14 ha) of privately owned land, from Papiha Point to Honolulu Nui Bay on the northeastern coast of east Maui. This unit is occupied by the plant
Maui—Coastal—Unit 5 consists of 26 ac (11 ha) of State land from Keakulikuli Point to Pailoa Bay on the northeastern coast of east Maui. This unit is occupied by the plant
Maui—Coastal—Unit 6 consists of 356 ac (144 ha) of State land at Kamanamana on the southern coast of East Maui. This unit is occupied by the plant
Maui—Coastal—Unit 7 consists of 30 ac (12 ha) of State land, and 15 ac (6 ha) of privately owned land, from Kailio Point to Waiuha Bay, on the southern coast of east Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the coastal ecosystem (see Table 5). Although Maui—Coastal—Unit 7 is not currently occupied by
Maui—Coastal—Unit 8 consists of 493 ac (199 ha) of State land from Kiakeana Point to Manawainui on the southern coast of east Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the coastal ecosystem (see Table 5). Although Maui—Coastal—Unit 8 is not currently occupied by
Maui—Coastal—Unit 9 consists of 170 ac (69 ha) of State land and 0.3 ac (0.1 ha) of privately owned land, from Poelua Bay to Mokolea Point on the northwestern coast of west Maui. This unit is occupied by the plants
Maui—Coastal—Unit 10 consists of 147 ac (60 ha) of State land and 26 ac (10 ha) of privately owned land, from Kahakuloa Head to Waihee Point on the northeastern coast of west Maui. This unit is occupied by the plant
Maui—Coastal—Unit 11 consists of 6 ac (3 ha) of State land on Mokeehia Island on the northeastern coast of west Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the coastal ecosystem (see Table 5). Although Maui—Coastal—Unit 11 is not currently occupied by
Maui—Lowland Dry—Unit 1 consists of 11,465 ac (4,640 ha) of State land, 2,069 ac (837 ha) of federally owned land, and 3 ac (1 ha) of privately owned land, from Kanaio to Kahualau Gulch on the southern slopes of east Maui. This unit is occupied by the plants
Maui—Lowland Dry—Unit 2 consists of 1,851 ac (749 ha) of State land at Keokea on the southern slopes of east Maui. This unit is occupied by the plants
Maui—Lowland Dry—Unit 3 consists of 188 ac (76 ha) of privately owned land, at Keauhou on the southern slopes of east Maui. This unit is occupied by the plant
Maui—Lowland Dry—Unit 4 consists of 1,266 ac (512 ha) of State land (including the Department of Land and Natural Resources) at Ahihi-Kinau Natural Area Reserve on the southern slopes of east Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 5). Although Maui—Lowland Dry—Unit 4 is not currently occupied by
Maui—Lowland Dry—Unit 5 consists of 3,615 ac (1,463 ha) of State land, and 43 ac (17 ha) of privately owned land, from Panaewa to Manawainui on the western and southern slopes of west Maui. This unit is occupied by the plants
Maui—Lowland Dry—Unit 6 consists of 3 ac (1 ha) of State land, and 237 ac (96 ha) of privately owned land, from Paleaahu Gulch to Puu Hona on the southern slopes of west Maui. This unit is occupied by the plants
Maui—Lowland Mesic—Unit 1 consists of 1,147 ac (464 ha) of State land, 241 ac (97 ha) of privately owned land, and 494 ac (200 ha) of federally owned land (Haleakala National Park), from Manawainui Valley to Kukuiula on the eastern slopes of east Maui. This unit is occupied by the plants
Maui—Lowland Mesic—Unit 2 consists of 1,034 ac (419 ha) of State land, and 113 ac (46 ha) of privately owned land, from Honokohau to Launiupoko on the western slopes of west Maui. This unit is occupied by the plants
This area consists of 477 ac (193 ha) of State land at Ukumehame on the southern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland mesic ecosystem (see Table 5). Although Maui—Lowland Mesic—Unit 3 is not currently occupied by the plants
This area consists of 6,616 ac (2,677 ha) of State land, 7,425 ac (3,005 ha) of privately owned land, and 2,038 ac (825 ha) of federally owned land (Haleakala National Park), from Haiku Uka to Kipahulu Valley on the northern and eastern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). These units are occupied by the plants
This area consists of 65 ac (26 ha) of State land at Moomoku, on the northwestern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). These units are occupied by the plant
This area consists of 1,247 ac (505 ha) of State land at Honanana Gulch on the northeastern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). They are occupied by the plants
This area consists of 864 ac (350 ha) of State land at Kahakuloa Valley on the northeastern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). They are occupied by the plants
This area consists of 30 ac (12 ha) of State land at Iao Valley on the eastern side of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). Although Maui—Lowland Wet—Unit 5 is not known to be occupied by the plants
This area consists of 136 ac (55 ha) of State land at Honokowai and Wahikuli valleys on the western slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). These units are occupied by the plant
This area consists of 898 ac (364 ha) of State land at Olowalu Valley, on the southern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). These units are occupied by the plant
This area consists of 230 ac (93 ha) of State land at upper Ukumehame Gulch, on the southern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). Although Maui—Lowland Wet—Unit 8 is not currently occupied by the plants
This area consists of 1,313 ac (531 ha) of State land and 798 ac (323 ha) of privately owned land, at Haiku Uka on the northern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). These units are occupied by the plants
This area consists of 4,075 ac (1,649 ha) of State land, 9,633 ac (3,898 ha) of privately owned land, and 875 ac (354 ha) of federally owned land (Haleakala National Park), from Haiku Uka to Puukaukanu and upper Waihoi Valley, on the northern and northeastern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). These units are occupied by the plants
This area consists of 2,228 ac (902 ha) of federally owned land (Haleakala National Park) in Kipahulu Valley, on the northeastern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). These units are occupied by the plants
This area consists of 180 ac (73 ha) of State land and 1,653 ac (669 ha) of federally owned land (Haleakala National Park), in Kaapahu Valley on the northeastern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). These units are occupied by the plants
This area consists of 222 ac (90 ha) of State land, and 165 ac (67 ha) of federally owned land (Haleakala National Park), near Kaumakani on the eastern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). These units area occupied by the plant
This area consists of 1,113 ac (451 ha) of State land, and 286 ac (116 ha) of privately owned land, at the summit and surrounding areas on west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). They are occupied by the plants
This area consists of 80 ac (32 ha) of State land near Hanaula and Pohakea Gulch on the southeastern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). They are occupied by the plants
This area consists of 6,593 ac (2,668 ha) of State land, 707 ac (286 ha) of privately owned land, and 3,672 ac (1,486 ha) of federally owned land (Haleakala National Park), from Kealahou to Puualae, nearly circumscribing the summit of Haleakala on east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane mesic ecosystem (see Table 5). They are occupied by the plants
This area consists of 124 ac (50 ha) of State land at Helu and the upper reaches of Puehuehunui on the southern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane mesic ecosystem (see Table 5). They are occupied by the plants
This area consists of 174 ac (70 ha) of State land at Lihau on the southwestern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane mesic ecosystem (see Table 5). They are occupied by the plant
This area consists of 72 ac (29 ha) of State land at Halepohaku on the southern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane mesic ecosystem (see Table 5). Although Maui—Montane Mesic—Unit 4 is not known to be occupied by the plants
This area consists of 170 ac (69 ha) of State land at the upper reaches of Manawainui Gulch on the southeastern slopes of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane mesic ecosystem (see Table 5). They are occupied by the plants
Maui—Montane Dry—Unit 1 consists of 2,962 ac (1,199 ha) of State land, and 563 ac (228 ha) of federally owned land (Haleakala National Park), from Kanaio to Naholoku and Kaupo Gap along the southern slopes of east Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane dry ecosystem (see Table 5). Although Maui—Montane Dry—Unit 1 is not known to be occupied by the plants
This area consists of 10,785 ac (4,365 ha) of State land, 1,622 ac (656 ha) of privately owned land, and 3,568 ac (1,444 ha) of federally owned land (Haleakala National Park), from Kanaio north to Puu Nianiau on east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as
This area consists of 50 ac (20 ha) of privately owned land, and 9,836 ac (3,981 ha) of federally owned land (Haleakala National Park), from the summit north to Koolau Gap and east to Kalapawili Ridge on east Maui. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the subalpine ecosystem (see Table 5). They are occupied by the plants
Maui—Alpine—Unit 1 consists of 475 ac (192 ha) of State land, 411 ac (166 ha) of privately owned land, and 911 ac (369 ha) of federally owned land (Haleakala National Park), at the summit of Haleakala on east Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and the subcanopy native plant species identified as physical or biological features in the alpine ecosystem (see Table 5). This unit is occupied by the plant
This area consists of 755 ac (305 ha) of federally owned land (Haleakala National Park), from Pakaoao to Koolau Gap on east Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the dry cliff ecosystem (see Table 5). Although Maui—Dry Cliff—Unit 1 is not known to be occupied by the plants
Maui—Dry Cliff—Unit 2 consists of 688 ac (279 ha) of federally owned land (Haleakala National Park) from Haupaakea Peak to Kaupo Gap on east Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the dry cliff ecosystem (see Table 5). It is occupied by the plants
This area consists of 200 ac (81 ha) of federally owned land (Haleakala National Park) near Papaanui on east Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the dry cliff ecosystem (see Table 5). It is occupied by the plant
This area consists of 315 ac (127 ha) federally owned land (Haleakala National Park), along Kalapawili Ridge on east Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the dry cliff ecosystem (see Table 5). Although Maui—Dry Cliff—Unit 4 is not currently occupied by the plants
This area consists of 1,298 ac (525 ha) of State land, from Helu and across Olowalu to Ukumehame Gulch, on west Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the dry cliff ecosystem (see Table 5). They are occupied by the plant
Maui—Dry Cliff—Unit 6 consists of 279 ac (113 ha) of State land along the east wall of Ukumehame Gulch on west Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the dry cliff ecosystem (see Table 5). Although Maui—Dry Cliff—Unit 6 is not currently occupied by the plants
This area consists of 290 ac (117 ha) of privately owned land along the wall of Keanae Valley on the northern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). Although Maui—Wet Cliff—Unit 1 is not currently occupied by the plants
This area consists of 475 ac (192 ha) of State land, 20 ac (8 ha) of privately owned land, and 912 ac (369 ha) of federally owned land (Haleakala National Park), from Kalapawili Ridge along Kipahulu Valley and north to Puuhoolio, on the northeastern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). They are occupied by the plants
This area consists of 5 ac (2 ha) of State land and 433 ac (175 ha) federally owned land (Haleakala National Park) along the south rim of Kipahulu Valley on east Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). Although Maui—Wet Cliff—Unit 3 is not currently occupied by the plants
This area consists of 184 ac (75 ha) of State land along the north wall of Waihoi Valley, on the northeastern slopes of east Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). They are occupied by the plant
This area consists of 1,858 ac (752 ha) of State land, and 253 ac (102 ha) of privately owned land, at the summit ridges of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). They are occupied by the plants
This area consists of 556 ac (225 ha) of State land along Honokowai ridge on the northwestern side of west Maui. These units include the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). These units are occupied by the plants
Maui—Wet Cliff—Unit 8 consists of 337 ac (137 ha) of State land along Kahakuloa ridge on the north side of west Maui. This unit includes the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). Although Maui—Wet Cliff—Unit 8 is not known to be occupied by the plants
Kahoolawe—Coastal—Unit 1 consists of 1,516 ac (613 ha) of State land from Kaneloa to Lae o Kaule, including Aleale, along the southern and eastern coast of Kahoolawe. It is occupied by the plant
Kahoolawe—Coastal—Unit 2 consists of 12 ac (5 ha) of State land on Puukoae, an islet off the southern coast of Kahoolawe. It is occupied by the plant
Kahoolawe—Coastal—Unit 3 consists of 189 ac (76 ha) of State land from Laepaki to Honokanaia along the western coast of Kahoolawe. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the coastal ecosystem (see Table 5). Although Kahoolawe—Coastal—Unit 3 is not known to be occupied by
Kahoolawe—Lowland Dry—Unit 1 consists of 1,220 ac (494 ha) of State land, north of Waihonu Gulch on west Kahoolawe. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 5). Although Kahoolawe—Lowland Dry—Unit 1 is not known to be occupied by
Kahoolawe—Lowland Dry—Unit 2 consists of 3,205 ac (1,297 ha) of State land from Lua o Kealialuna to Puu o Moaulaiki and Luamakika on the eastern side of Kahoolawe. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 5). Although Kahoolawe—Lowland Dry—Unit 2 is not known to be occupied by
Molokai—Coastal—Unit 1 consists of 70 ac (28 ha) of privately owned land, and 54 ac (22 ha) of federally owned land (U.S. Coast Guard) at Laau Point, from Kahaiawa to Keawakalani, along the western coast of Molokai. This unit is occupied by the plant
Molokai—Coastal—Unit 2 consists of 263 ac (106 ha) of State land, and 710 ac (287 ha) of privately owned land, from Ilio Point to Kaa Gulch, along the northwestern coast of Molokai. This
Molokai—Coastal—Unit 3 consists of 794 ac (321 ha) of State land, and 3 ac (1 ha) of federally owned land (Kalaupapa National Historical Park), from Kahiu Point to Wainene, along the north-central coast of Molokai. This unit is occupied by the plants
Molokai—Coastal—Unit 4 consists of 10 ac (4 ha) on Mokapu Island on the northern coast of Molokai. This area is State-owned, and is classified as a State Seabird Sanctuary. This unit is occupied by the plants
Molokai—Coastal—Unit 5 consists of 1 ac (0.5 ha) on Huelo islet on the northern coast of Molokai. This area is State-owned, and is classified as a State Seabird Sanctuary. This unit is occupied by the plants
Molokai—Coastal—Unit 6 consists of 190 ac (77 ha) of State land, and 1,685 ac (682 ha) of privately owned land, from Kaholaiki Bay to Halawa Bay, on the northeastern coast of Molokai. This unit is occupied by the plants
Molokai—Coastal—Unit 7 consists of 49 ac (20 ha) of privately owned land from Alanuipuhipaka Ridge to Kalanikaula, on the northeastern coast of Molokai. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the coastal ecosystem (see Table 5). Although Molokai—Coastal—Unit 7 is not known to be occupied by
Molokai—Lowland Dry—Unit 1 consists of 24 ac (10 ha) of privately owned land, in a small gulch northwest of Mahana, in west-central Molokai. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 5). Although Molokai—Lowland Dry—Unit 1 is not known to be occupied by
Molokai—Lowland Dry—Unit 2 consists of 589 ac (238 ha) of State land at Kamiloloa on the southern slopes of Molokai. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland dry ecosystem (see Table 5). Although Molokai—Lowland Dry—Unit 2 is not known to be occupied by
This area consists of 3,489 ac (1,412 ha) of State land, and 5,281 ac (2,137 ha) of privately owned land, from Waianui Gulch to Mapulehu, in central Molokai. These units are occupied by the plants
This area consists of 2,195 ac (888 ha) of State land, and 754 ac (305 ha) of privately owned land (partly within The Nature Conservancy's Pelekunu Preserve), from Pelekunu Valley to Wailau Valley, in north-central Molokai. These units are occupied by the plant
This area consists of 1,356 ac (549 ha) of State land and 594 ac (241 ha) of privately owned land, from Kahanui to Pelekunu Valley, in north-central Molokai. These units are occupied by the plant
Molokai—Lowland Wet—Unit 3 consists of 94 ac (38 ha) of State land, and 3,125 ac (1,265 ha) of privately owned land, from Waiahookalo gulch to Moaula stream and Puniuohua, on eastern Molokai. This unit includes the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the lowland wet ecosystem (see Table 5). Although Molokai—Lowland Wet—Unit 3 is not known to be occupied by
This area consists of 1,545 ac (625 ha) of State land, and 1,851 ac (749 ha) of privately owned land, from the headwaters of Waialelia Stream and above Pelekunu Valley, eastward along the summit area to Mapulehu, in north-central Molokai. These units are occupied by the plants
This area consists of 871 ac (353 ha) of State land, and 39 ac (16 ha) of privately owned land, from Honukaupu to Olokui (between Pelekunu and Wailau valleys), in north-central Molokai. These units include the mixed herbland and shrubland, the moisture regime, and canopy, subcanopy, and understory native plant species identified as physical or biological features in the montane wet ecosystem (see Table 5). Although Molokai—Montane Wet—Unit 2 is not known to be occupied by
Molokai—Montane Wet—Unit 3 consists of 77 ac (31 ha) of State land, and 726 ac (294 ha) of privately owned land, above the east rim of Wailau Valley on eastern Molokai. This unit is occupied by the plant
This area consists of 257 ac (104 ha) of State land, and 559 ac (226 ha) of privately owned land from Kamiloloa to Makolelau in central Molokai. These
This area consists of 1,395 ac (565 ha) of State land, and 212 ac (86 ha) of privately owned land, and encircles the plateau between Pelekunu and Wailau valleys, in north-central Molokai. These units are occupied by the plants
This area consists of 462 ac (187 ha) of State land, and 806 ac (326 ha) of privately owned land (partly within The Nature Conservancy's Pelekunu Preserve), along the rim of Pelekunu Valley from Kipapa Ridge to Mapulehu, in central Molokai. These units are occupied by the plants
Molokai—Wet Cliff—Unit 3 consists of 1,137 ac (460 ha) of State land, and 225 ac (91 ha) of privately owned land, along the rim of Wailau Valley from Mapulehu to Kahiwa Gulch, in eastern Molokai. This unit includes the mixed herbland and shrubland, the moisture regime, and the subcanopy and understory native plant species identified as physical or biological features in the wet cliff ecosystem (see Table 5). Although Molokai—Wet Cliff—Unit 3 is not known to be occupied by
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we may issue:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate formal consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or retain those physical or biological features that relate to the ability of the area to periodically support the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of the critical habitat network for the 135 species identified in this final rule. As discussed above, the role of critical habitat is to support the life history needs of the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the 125 species. These activities include, but are not limited to:
(1) Federal actions that would appreciably degrade or destroy the physical or biological features for the species including, but not limited to, the following: Overgrazing; maintaining or increasing feral ungulate levels; clearing or cutting native live trees and shrubs (
(2) Federal actions that would alter watershed characteristics in ways that would appreciably reduce groundwater recharge or alter natural, wetland, aquatic, or vegetative communities. Such actions include new water diversion or impoundment, excess groundwater pumping, and manipulation of vegetation through activities such as the ones mentioned in (1), above.
(3) Recreational activities that may appreciably degrade vegetation.
(4) Mining sand or other minerals.
(5) Introducing or encouraging the spread of nonnative plant species.
(6) Importing nonnative species for research, agriculture, and aquaculture, and releasing biological control agents.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense (DOD) lands with a completed INRMP within the critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate or make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.
In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the
When identifying the benefits of inclusion for an area, we consider factors such as the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in the continuation, strengthening, or encouragement of partnerships that will result in future conservation. The Secretary places great weight on demonstrated partnerships, as in many cases they can lead to the implementation of conservation actions that provide benefits to the species and their habitat beyond those that are achievable through the designation of critical habitat and section 7 consultations, particularly on private lands. As most endangered or threatened species in Hawaii occur on private and other non-Federal lands, such conservation partnerships are of heightened importance on the islands of Hawaii.
In the case of the 125 Maui Nui species, the benefits of designating critical habitat include educational benefits resulting from identification of the features essential to the conservation these species and the delineation of areas important for their recovery. Further, there may be additional benefits realized by providing landowners, stakeholders, and project proponents greater certainty about which specific areas are important for the Maui Nui species. Thus, critical habitat designation increases public awareness of the presence the Maui Nui species and the importance of habitat protection and, in cases where a Federal nexus exists, increases habitat protection for these species due to the protection from adverse modification or destruction of critical habitat.
When we evaluate whether to include or exclude lands from critical habitat where there is a voluntary conservation partnership, we evaluate the evidence of a cooperative relationship, the likelihood that it will result in meaningful conservation for the species at issue, and the possibility it will encourage others to enter into similar partnerships. Other factors we may consider include, but are not limited to, whether any management plan that may be under consideration is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information. Management plans or agreements, which may maintain the level of protection for the species or provide greater conservation benefits than would be realized due solely to the regulatory effect of critical habitat, may serve to reduce or eliminate the benefits of designating an area as critical habitat.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion of the particular area would result in the extinction of the species. If exclusion of an area from critical habitat will result in extinction, it will not be excluded from the designation.
Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. We are excluding a total of 84,891 ac (34,355 ha) of lands on Maui, Molokai, and Lanai that meet the definition of critical habitat from the final critical habitat rule under section 4(b)(2) of the Act, based on conservation partnerships, land and resource management plans, or “other relevant factors.” On the islands of Maui and Molokai, approximately 59,478 ac (24,070 ha) are excluded under section 4(b)(2) of the Act. All lands within proposed critical habitat on Lanai (14 proposed plant units and 10 proposed tree snail units; 25,413 ac (10,284 ha)) are excluded from final designation pursuant to section 4(b)(2) of the Act for the reasons described below. No lands on Kahoolawe are excluded from the final critical habitat designation. The Secretary has excluded lands under section 4(b)(2) of the Act upon a determination that the benefits of excluding such areas outweigh the benefits of including them in critical habitat, and that the exclusion will not result in the extinction of the species.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis of the proposed critical habitat designation and related factors (IEc 2013). The draft analysis, dated January 14, 2013, was made available for public review from January 31, 2013, through March 4, 2013 (78 FR 6785; January 31, 2013), and was also available during the final comment period, which ran from June 10, 2015, through June 25, 2015 (80 FR 32922). Following the close of the comment period, a final analysis of the potential economic effects of the designation was developed taking into consideration the public comments and any new information received (Final Economic Analysis (FEA) 2015).
The intent of the FEA is to quantify the economic impacts of all potential conservation efforts for the Maui Nui species; some of these costs will likely be incurred regardless of whether we designate critical habitat (such costs are considered “baseline” costs). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (
The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development projects and activities, such as economic impacts on small entities and the energy industry. Decision-makers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector.
The primary purpose of the economic analysis is to estimate the potential incremental economic impacts associated with the designation of critical habitat for the Maui Nui species. This information is intended to assist the Service in considering whether to exclude any particular areas from critical habitat designation under section 4(b)(2) of the Act. The FEA analyzes economic impacts of the conservation efforts for the Maui Nui species associated with the following categories of activity: Residential and commercial development projects, energy projects, and grazing and farming activities. The FEA estimates approximately $100,000 in present value incremental impacts over a period of 10 years associated with development and energy projects, or roughly $20,000 in annualized impacts. A further $5,000 in total potential impacts were estimated for energy projects in areas considered for exclusion, or roughly $600 in annualized impacts (IEc 2015, p. ES-7). However, the FEA concluded that the direct effect of designation of critical habitat on any of these activities (
The FEA additionally considered the potential indirect effects of the designation, including, for example, perceptional effects on land values, or the potential for third-party lawsuits. Given the uncertainties surrounding the probability of any such effects occurring, and if so, the magnitude of any such effects, quantification of the potential indirect effects of the designation was not possible. The FEA acknowledges, however, that these uncertainties result in an underestimate of the quantified impacts of the designation (IEc 2015, p. 5-23).
After reviewing the economic analysis the Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for the Maui Nui species based on economic impacts.
A copy of the FEA with supporting documents may be obtained by contacting the Pacific Islands Fish and Wildlife Office (see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the DOD where a national security impact might exist. In preparing this final rule, we have determined that the lands within the designation of critical habitat for the Maui Nui species are not owned or managed by the DOD, therefore we anticipate no impact on national security. Consequently, the Secretary is not exercising her discretion to exclude any areas from this final designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts to national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat.
The establishment and encouragement of strong conservation partnerships with non-Federal landowners is especially important in the State of Hawaii, where there are relatively few lands under Federal ownership; we cannot achieve the conservation and recovery of listed species in Hawaii without the help and cooperation of non-Federal landowners. In some cases we are excluding areas where landowners are already actively participating in the restoration or management of habitats essential to listed species, or taking steps to protect and increase numbers of individuals or populations of listed species that occur on their properties. In other cases, we are excluding areas to support existing partnerships and encourage new ones that will provide important conservation benefits to the Maui Nui species.
More than 60 percent of the United States is privately owned (Lubowski
Many non-Federal landowners derive satisfaction from contributing to endangered species recovery. Conservation agreements with non-Federal landowners, safe harbor agreements, other conservation agreements, easements, and State and local regulations enhance species conservation by extending species protections beyond those available through section 7 consultations. We encourage non-Federal landowners to enter into conservation agreements based on a view that we can achieve greater species conservation on non-Federal lands through such partnerships than we can through regulatory methods alone (USFWS and NOAA 1996c (61 FR 63854, December 2, 1996)).
Many private landowners, however, are wary of the possible consequences of attracting endangered species to their property. Mounting evidence suggests that some regulatory actions by the government, while well intentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on private lands (Wilcove
Because so many important conservation areas for the Maui Nui species occur on lands managed by non-Federal entities, collaborative relationships are essential for their recovery. The Maui Nui species and their habitat are expected to benefit substantially from voluntary land management actions that implement appropriate and effective conservation strategies, or that add to our bank of knowledge about the species and their ecological needs. The conservation benefits of critical habitat, on the other hand, are primarily regulatory or prohibitive in nature. Where consistent with the discretion provided by the Act, the Service believes it is both desirable and necessary to implement policies that provide positive incentives to non-Federal landowners and land managers to voluntarily conserve natural resources and to remove or reduce disincentives to conservation (Wilcove
We are excluding a total of approximately 84,891 ac (34,355 ha) of lands on Maui, Molokai, and Lanai that meet the definition of critical habitat from the final critical habitat rule under section 4(b)(2) of the Act. We are excluding these non-Federal lands because the development and implementation of management plans, and ability to access private lands necessary for surveys or monitoring designed to promote the conservation of these federally listed plant species and their habitat, as well as provide for other native species of concern, are important outcomes of these conservation partnerships which reduce the benefits of overlying a designation of critical habitat. Importantly, such exclusions also are likely to result in the continuation, strengthening, or encouragement of important conservation partnerships that will contribute to the long-term conservation of the Maui Nui species. The Secretary has determined that the benefits of excluding these areas outweigh the benefits of including them in critical habitat, and that such exclusion will not result in the extinction of the species. The specific areas excluded are detailed in Table 8. As a result of our evaluation of whether the benefits of exclusion outweigh those of inclusion in critical habitat, as detailed below, we have excluded approximately 59,479 ac (24,070 ha) on the islands of Maui and Molokai, and 25,413 ac (10,284 ha) on the island of Lanai (resulting in the exclusion of all lands proposed as critical habitat on Lanai). No lands on Kahoolawe were excluded.
Here we present an overview of each of the areas considered for exclusion, followed by a summary of our analysis of the benefits of inclusion versus exclusion in each case. Maps of each area excluded are provided in our
In this final designation, the Secretary has exercised her authority to exclude from critical habitat lands owned or managed by The Nature Conservancy, totaling 10,056 ac (4,062 ha) on the islands of Maui and Molokai. The Nature Conservancy (TNC) is a proven conservation partner, as demonstrated, in part, by their ongoing management programs, documented in long-range management plans and yearly operational plans for TNC's Kapunakea Preserve on west Maui and Waikamoi Preserve on east Maui, and Kamakou Preserve and Moomomi Preserve on Molokai. These preserves were established by grants of perpetual conservation easements from the private landowners to TNC, or are owned by TNC, and are permanently dedicated to conservation. The Nature Conservancy's management and protection of these areas currently provide significant conservation benefits to 36 plant and 2 forest bird species that are reported from one or more of the preserves and their habitat. These areas also provide for the conservation and recovery of 69 other plant species. For the reasons described below, we have determined that the benefits of excluding these lands owned or managed by The Nature Conservancy outweigh the benefits of including them in critical habitat. The land is distributed among several critical habitat units, as discussed below.
Kapunakea Preserve encompasses 1,340 ac (542 ha) on west Maui. This preserve was established through a perpetual conservation easement with Pioneer Mill Company, Ltd. (succeeded by Kaanapali Land Management Corp.), in 1992, to protect the natural, ecological, and wildlife features of one of the highest quality native areas on west Maui (TNCH 2008, p. 5). Eleven plant species included in this rule (
Waikamoi Preserve encompasses 5,141 ac (2,080 ha) along the northern boundary of Haleakala National Park on east Maui. The preserve was established in 1983, through a perpetual conservation easement with Haleakala Ranch Company, to protect one of the largest intact native rain forests in Hawaii (TNCH 2006a, p. 3). Eight plant species included in this rule (
Kamakou Preserve is located in the east Molokai mountains and encompasses 2,633 ac (1,066 ha). This preserve was established in 1982, through a perpetual conservation easement with Molokai Ranch, to protect endemic forest bird habitat and is the primary source area for ground and surface water on the island (TNCH 2006b, p. 2). Nineteen plant species
Moomomi Preserve encompasses 924 ac (374 ha) along the northwest shore of Molokai that are owned by TNC. This preserve was established in 1988, to protect the most intact coastal ecosystem in Hawaii, with nesting seabirds, nesting green sea turtles, and a variety of native coastal plants (TNCH 2005, pp. 2-3). One plant species included in this rule,
All four preserves were established by grants of perpetual conservation easements from the private landowners to TNC, or are owned by TNC, and are included in the State's Natural Area Partnership (NAP) programs, which provide matching funds for the management of private lands dedicated to conservation (TNCH 2005, pp. 2-3; TNCH 2006a, p. 3; TNCH 2006b, p. 2; TNCH 2008, p. 50). These partnerships with the State began in 1983 (with Haleakala Ranch) for Waikamoi, and were followed in 1992 (with Kaanapali Land Management Corporation) for Kapunakea, in 1995 (with Molokai Ranch) for Kamakou, and in 1995 for Moomomi (TNC-owned). Under the NAP program, the State of Hawaii provides matching funds on a two-for-one basis for management of private lands dedicated to conservation. In order to qualify for this program, the land must be dedicated in perpetuity through transfer of fee title or a conservation easement to the State or a cooperating entity. The land must be managed by the cooperating entity or a qualified landowner according to a detailed management plan approved by the Board of Land and Natural Resources. Once approved, the 6-year partnership agreement between the State and the managing entity is automatically renewed each year so that there are always 6 years remaining in the term, although the management plan is updated and funding amounts are reauthorized by the board at least every 6 years. By April 1 of any year, the managing partner may notify the State that it does not intend to renew the agreement; however, in such case, the partnership agreement remains in effect for the balance of the existing 6-year term, and the conservation easement remains in full effect in perpetuity. The conservation easement may be revoked by the landowner only if State funding is terminated without the concurrence of the landowner and cooperating entity. Prior to terminating funding, the State must conduct one or more public hearings. The NAP program is funded through real estate conveyance taxes placed in a Natural Area Reserve Fund. Participants in the NAP program must provide annual reports to the DLNR, and the DLNR makes annual inspections of the work in the reserve areas (see State of Hawaii 1999, H.R.S. 195-D; State of Hawaii 1996, H.A.R. 13-210).
Management programs within the preserves are documented in long-range management plans and yearly operational plans. These plans detail management measures that protect, restore, and enhance rare plants and animals and their habitats within the preserves and in adjacent areas. These management measures address factors that pose threats to the Maui Nui species in this final rule, including control of nonnative species of ungulates, rodents, and weeds. In addition, habitat restoration and monitoring are also included in these plans.
The primary management goals for each of the four TNC preserves are to: (1) Prevent degradation of native forest and shrubland by reducing feral ungulate damage; (2) improve or maintain the integrity of native ecosystems in selected areas of the preserve by reducing the effects of nonnative plants; (3) conduct small mammal control and reduce their negative impacts where possible; (4) monitor and track the biological and physical resources in the preserve and evaluate changes in these resources over time, and encourage biological and environmental research; (5) prevent extinction of rare species in the preserve; (6) build public understanding and support for the preservation of natural areas, and enlist volunteer assistance for preserve management; and (7) protect the resources from fires in and around the preserve (applicable to preserves in high fire-risk areas) (TNCH 2005, 148 pp. + appendices; TNCH 2006a, 23 pp. + appendices; TNCH 2006b, 21 pp. + appendices; TNCH 2008, 30 pp.).
The goal of TNC's ungulate program (see (1), above) is to bring feral ungulate populations to zero within the preserves as rapidly as possible, and to prevent domestic livestock from entering a preserve. Specific management actions to address feral ungulate impacts include the construction of fences, including strategic fences (fences placed in proximity to natural barriers such as cliffs); annual monitoring of ungulate
The nonnative plant control program (see (2), above) for each of the four TNC preserves focuses on controlling habitat-modifying nonnative plants (weeds) in intact native communities and preventing the introduction of additional nonnative plants. Based on the degree of threat to native ecosystems, weed priority lists have been compiled for each of the preserves, and control and monitoring of the highest priority species are ongoing. Weeds are controlled manually, chemically, or through a combination of both. Preventive measures (prevention protocol) are required by all who enter each of the preserves. This protocol includes such things as brushing footgear before entering the preserve to remove seeds of nonnative plants. Weeds are monitored along transects annually. Weed priority maps are maintained semi-annually. Staff participate as members of the Melastome Action Committee and the Maui and Molokai Invasive Species committees (MISC and MoMISC), and cooperate with the State Division of Conservation and Resources Enforcement (DOCARE) in marijuana control, as needed (TNCH 2005, pp. 8-9; TNCH 2006a, pp. 11-13; TNCH 2006b, pp. 10-12; TNCH 2008, pp. 11-13).
The Nature Conservancy controls or prevents entry of nonnative mammals such as rats (
Natural resource monitoring and research address the need to track the biological and physical resources of the preserves and evaluate changes in these resources to guide management programs, and contribute to prevention of extinction of rare species (see (4) and (5), above). Vegetation is monitored throughout each preserve to document long-term ecological changes, and rare plant species are monitored to assess population status. The Nature Conservancy provides logistical and other support to PEPP, including implementing threat abatement measures on their preserves (TNCH 2010a, p. 13). Bird surveys are conducted every 5 years to document the relative abundance of all bird species in the preserves (TNCH 2010b, p. 16). Portions of the four preserves are adjacent to other areas managed to protect natural resources. Agreements with those land managers are used to coordinate management efforts, and to share staff, equipment, and expertise to maximize management efficiency. The Nature Conservancy takes an active part in planning and coordinating conservation actions with, and is a member of, the East Maui Watershed Partnership (EMWP), the West Maui Mountains Watershed Partnership (WMMWP), and the East Molokai Watershed Partnership (EMOWP) (TNCH 2006a, p. 3; TNCH 2008, p. 21; TNCH 2010a, p. 2).
The Nature Conservancy's goal to increase conservation and advocacy for native ecosystems in Hawaii is also implemented through their public outreach program (see (6), above). The Nature Conservancy provides sites and volunteer work for youth groups such as Ho'ikaika and AmeriCorps, and summer internships for youth and young adults (Alu Like, State Summer Youth Employment Program, Molokai Environmental Preservation Organization, and the Natural Resources Academy), providing students with hands-on experience in natural resource conservation. Other community groups, such as the Molokai Advisory Council, Molokai Hunting Working Group, and Kamalo Conservation Advisors, are encouraged to participate in the decision-making process for TNC's natural resources programs. The Nature Conservancy staff present slide shows and talks as requested by community and school groups, and lead guided hikes in their preserves for public schools and targeted community members. The Nature Conservancy produces a quarterly newsletter distributed on Molokai to inform the local community regarding conservation activities and opportunities (TNCH 2006b, pp. 18-19; TNCH 2008, p. 20).
Fire management is an important goal for two Molokai preserves: Kamakou Preserve on Molokai and Kapunakea Preserve on west Maui (TNCH 2006b, p. 15; TNCH 2008, p. 22) (see (7), above). Wildfire management plans are updated annually. Staff is provided with fire suppression training, roads are maintained for access and as fire breaks, and equipment is supplied as needed to allow immediate response to fire threats (TNCH 2005, p. 13).
Our records indicate that between 2010 until 2015 there were no consultations conducted regarding projects receiving Federal funding on these TNC preserves. We believe that there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. In addition, all of the management actions detailed above will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 105 plant and 2 forest bird species and their habitat.
In this final designation, the Secretary has exercised her authority to exclude 8,931 ac (3,614 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned and managed by Maui Land and Pineapple Company (ML & P). Maui Land and Pineapple Company is a proven conservation partner with an established track record of voluntary protection and management of listed species as demonstrated, in part, by their ongoing management program for the Puu Kukui Watershed Preserve (Puu Kukui WP), their participation in the WMMWP, and the tree snail habitat protection agreement for ML & P's Puu
Puu Kukui WP is the largest privately owned watershed preserve in the State, and encompasses over 8,600 ac (3,480 ha) of ML & P's lands on west Maui. The forest, shrubland, and bogs within the preserve serve as a significant water source for west Maui residents and industries. Fourteen plant species (
Maui Land and Pineapple Company understands the importance of this water resource to the community, and recognizes that active management is needed for its protection and conservation, as evidenced by their implementation of an ongoing management program to preserve and protect the Puu Kukui WP. The ML & P Company has proactively managed the Puu Kukui WP since 1988, and joined the State of Hawaii's NAP program in July 1992. The NAP program contract has been continually renewed since that time, and has recently been authorized to continue through Fiscal Year 2018 (ML & P 2010, p. 5; DLNR 2011, in litt.). The primary management goals as outlined in the current Puu Kukui WP management plan for the NAP program, fiscal years 2012-2018 are to: (1) Eliminate ungulate activity in all Puu Kukui WP management units; (2) reduce the range of habitat-modifying weeds and prevent introduction of nonnative plants; (3) track biological and physical resources in the watershed and evaluate changes in these resources over time, including the identification of new threats to the watershed, and provide logistical support to approved research projects that will improve management understanding of the watershed's resources; (4) prevent the extinction of rare species in the watershed; (5) expose the community to projects focusing on preserving and enhancing native plant and animal communities; (6) assist the long-term management of the native ecosystems of west Maui by the WMMWP; and (7) provide adequate manpower and equipment to meet the goals and objectives of the plan. Over 20 years of feral ungulate management has shown that the use of snares and fences has been an effective means of ungulate control, with 60 percent of the preserve not seeing pig activity for 5 or more years. Accessible fences and those with direct ungulate pressure are maintained quarterly. The nonnative plant control program focuses on areas with rare native species, and the maintenance of the most pristine areas, keeping them as weed-free as possible with manual and mechanical control. The ML & P Company also supports rare plant monitoring and propagule collection by the PEPP. Natural resource monitoring and research address the need to track biological and physical resources in order to guide management programs. Vegetation is monitored through permanent photo points; nonnative species are monitored along permanent transects; and rare, endemic, and indigenous species are also monitored.
The ML & P Company has received funding in eight separate agreements (over $400,000) with the Service to survey for rare plants on their lands and to build feral ungulate control fences for the protection of listed plants. Additionally, logistical and other support for native bird and invertebrate studies by independent researchers and interagency cooperative agreements is provided.
In our June 11, 2012, proposed rule, we proposed critical habitat in a portion of Puu Kukui WP (534 ac (236 ha)), where the remaining nine wild individuals of Newcomb's tree snail occur (
The ML & P Company is a member and participant of the WMMWP, established in 1998. Management priorities for the watershed partnership on west Maui include feral animal control, weed control, human activities management, public education and awareness, water and watershed monitoring, and management coordination improvements. The partnership's management actions benefit habitat conservation by: (1) Enabling land managers to construct fences and remove feral ungulates across land ownership boundaries; (2) allowing for more comprehensive conservation planning; (3) expanding the partners' ability to protect forest lands quickly and efficiently; (4) making more efficient use of resources and staff; (5) allowing for greater unity in attaining public funding; and (6) providing greater access to other funding opportunities. The WMMWP provides annual progress reports regarding the success of management actions and benefits provided to species and watershed habitat.
Our records indicate that between 2010 until 2015 there were no consultations conducted regarding projects receiving Federal funding on ML & P lands. We believe that there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. In addition, all of the management actions detailed above will either lead to maintenance or enhancement of habitat for the Maui Nui species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 44 plants, the 2 forest bird species, the tree snail, and their habitat.
In this final designation, the Secretary has exercised her authority to exclude 6,535 ac (2,645 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are under management by Ulupalakua Ranch. Ulupalakua Ranch is a proven partner, as evidenced, in part, by their history of conservation actions including the Auwahi and Puu Makua restoration agreements and ongoing management of Ulupalakua Ranch lands on east Maui, which provide for the conservation of 46 plants and the 2 forest birds and their habitat. For the reasons described below, we conclude that the benefits of excluding the lands owned by Ulupalakua Ranch outweigh the benefits of designating them as critical habitat.
Eight plant species included in this rule (
Ulupalakua Ranch is involved in several important voluntary conservation agreements with the Service and is currently carrying out activities on their lands for the conservation of rare and endangered species and their habitats. In 1997 and 1998, respectively, Ulupalakua Ranch entered into the Partners for Fish and Wildlife Auwahi and Puu Makua agreements to protect and restore dryland forest, including construction of ungulate exclosure fences, a greenhouse to propagate rare plants for outplanting, an access road, and propagation and outplanting of native plants. Preservation of habitat in Auwahi and Puu Makua benefits the 48 listed plant and animal species discussed above. Over the last 14 years, the Service has provided funding for 3 projects in the Auwahi area (Auwahi I, II, and III). Labor, material, and technical assistance is provided by Ulupalakua Ranch, U.S. Geological Survey-Biological Resources Division (USGS-BRD), and volunteers. The Auwahi I project area encompasses 10 ac (4 ha) on the southwest slope of Haleakala. Ulupalakua Ranch and its partners built an ungulate exclosure fence; outplanted native plants, including the listed endangered plants
Community volunteer participation is a key element to the success of these projects, and monthly volunteer trips often exceed 50 participants from a pool of 700 interested Maui residents, including school groups, Hawaiian native dance groups, canoe clubs, and other special interest groups.
In 1998, Ulupalakua Ranch entered a 10-year partnership with Ducks Unlimited (a private conservation organization) and the Natural Resources Conservation Service's (NRCS) Wetland Reserve Program (WRP) to create four wetland complexes (completed in 2001) suitable for two endangered birds, the Hawaiian goose or nene and Hawaiian duck or koloa (
Ulupalakua Ranch is an active member of the LHWRP, a coalition formed in 2003 by 11 private and public landowners and supporting agencies (LHWRP 2011, in litt). The partnership oversees and manages more than 43,000 ac (17,400 ha) of land on the leeward slopes of Haleakala crater, from Makawao to Kaupo, between 3,500 and 6,500 ft (1,067 and 1,980 m) elevation. The partnership's goals are to: (1) Restore native koa forests to provide increased water quantity and quality, (2) conserve unique endemic plants and animals, (3) protect important Hawaiian cultural resources, and (4) allow diversification of Maui's rural economy. The reestablishment of native koa forest will restore habitat for the 46 plants and 2 forest birds. The LHWRP also provides public outreach regarding the importance of watershed and other natural resources protection by supporting volunteers who participate in tree planting, nonnative plant removal, and seed collection activities.
Between 1999 and 2007, the Service and the DOFAW Natural Area Reserves Fund provided funding for habitat restoration at Puu Makua. Ulupalakua Ranch and its partners, which include USGS-BRD, the LHWRP, and volunteers, built a 100-ac (40-ha) ungulate exclosure, removed feral ungulates and controlled nonnative plants within the fenced exclosure, and outplanted native plants. This project provides public outreach through ongoing volunteer participation to control nonnative plants and outplant native plants.
Our records indicate that between 2010 until 2015 there were three informal section 7 consultations conducted regarding projects on Ulupalakua Ranch lands receiving Federal funding. One project, funded through NRCS, was for the development of a riparian conservation plan and riparian restoration, and we concurred that this project was not likely adversely affect the listed Hawaiian hoary bat (
Because all three of the informal consultations resulted in a not likely to adversely affect determination, we believe that, although there is a likelihood of a Federal nexus, little if any conservation benefit to the species would result from designation of critical habitat. With regard to the one formal consultation, we have no information to suggest that any similar project is likely to occur in this area again, thus we anticipate little if any additional conservation benefit as a result of future section 7 consultation as a result of critical habitat on these lands. In addition, all of the agreements and partnerships discussed above will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 46 plants and the 2 forest bird species, and their habitat.
In this final designation, the Secretary has exercised her authority to exclude 8,716 ac (3,527 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are under management by Haleakala Ranch. Haleakala Ranch is a proven conservation partner, as evidenced, in part, by a history of voluntary management actions and agreements that provide for the conservation of 55 plants and the 2 forest birds and their habitat. For the reasons described below, we conclude that the benefits of excluding Haleakala Ranch lands on east Maui outweigh the benefits of including these lands in critical habitat.
Four plant species included in this rule (
Haleakala Ranch is involved in several important voluntary conservation agreements with the Service and is currently carrying out activities on its lands for the conservation of rare and endangered species and their habitats. Haleakala Ranch is a member of the EMWP, which was formed in 1991, as a model for large-scale forest protection in Hawaii. The members agree to pool resources and implement a watershed management program to protect 100,000 ac (40,469 ha) of forest across east Maui
In 1999, Haleakala Ranch entered into an agreement with the Partners for Fish and Wildlife, USGS-BRD, and DHHL, for habitat protection at Puu o Kali, on the west slope of Haleakala. This agreement funded management actions to conserve and protect native dryland forest, including construction of a fence to exclude nonnative axis deer and feral goats, nonnative plant control, and propagation and outplanting of native plants. The project area was accessed through cooperation of the landowner, Haleakala Ranch. Currently, 236 ac (96 ha) are protected within the fenced area, and all axis deer and goats were removed from the fenced area. The continued protection of this area and maintenance of the fenced area is assured into the foreseeable future through the combined efforts of multiple partners, including the State, DHHL, and private landowners.
In 2001, the Service and NRCS provided funding for management actions to conserve and protect the endangered plant
In 1983, Haleakala Ranch granted a permanent conservation easement on 5,140 ac (2,080 ha) of ranch lands to TNC for Waikamoi Preserve. The establishment of this preserve demonstrates the willingness of Haleakala Ranch to protect and conserve native plants and animals on their lands. In addition, in 2009, Haleakala Ranch entered into a safe harbor agreement (SHA) with the Hawaii DLNR and the Service, to establish a population of the endangered Hawaiian goose on their lands at Waiopae. While the endangered nene is not a species addressed in this final rule, the establishment of a SHA for this endangered bird demonstrates the willingness of Haleakala Ranch to protect and conserve native plants and animals on their lands, and is further evidence of their value as a proven conservation partner.
Our records indicate that between 2010 until 2015 there was one informal section 7 consultation conducted regarding a project on Haleakala Ranch lands receiving Federal funding through the East Maui Watershed Partnership, for ungulate and weed control within a fenced area at Puu Pahu. We concurred that their actions would not have any adverse effects to any listed species within the project area. Because there was only one informal consultation, which resulted in a not likely to adversely affect determination, we believe that there is a likelihood of a Federal nexus; however, there would be little conservation benefit resulting from designation of critical habitat. All of these agreements, partnerships, and management actions will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 55 plants and the 2 forest bird species, and their habitat.
In this final designation, the Secretary has exercised her authority to exclude 6,721 ac (2,720 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are managed by East Maui Irrigation Company, Ltd. (EMI). East Maui Irrigation Company is a proven conservation partner, as demonstrated, in part, by their ongoing management and restoration agreements for EMI lands at Haiku Uka on east Maui, and their participation in the EMWP, which provide for the conservation of 47 plants and the 2 forest birds and their habitat. For the reasons discussed below, we have determined that the benefits of excluding EMI lands outweigh the benefits of including them in critical habitat.
Nine plant species included in this rule (
East Maui Irrigation Company, Ltd., a subsidiary of Alexander and Baldwin, owns and operates a ditch system that diverts more than 60 billion gallons per year of surface water from east Maui to central Maui for agricultural, domestic, and other uses. In 1991, EMI, along with the major landowners and land managers (TNC, Maui County, DLNR, and private ranches) of the windward slope of east Maui (encompassing approximately 100,000 ac (40,500 ha)), formed the EMWP. The EMWP prepared a management plan in 1993, to protect the biological and water resources within the partnership lands (EMWP 2009, App. B). The plan identified five priority management activities: (1) Watershed resource monitoring, (2) feral animal control, (3) invasive weed control, (4) management infrastructure, and (5) public education and awareness programs.
In 1993, EMI and DLNR entered into a right-of-entry agreement to permit the use of EMI roads by public hunters in the area of Haiku Uka, with the intention of increasing hunting activities to control feral pigs, goats, and axis deer in the Koolau FR. In 1996, constituents of the EMWP prepared an ungulate exclusion fencing strategy to preserve and protect 12,000 ac (4,856 ha) of land (called the core area) on the east Maui slope between Hanawi NAR and Koolau Gap, including the Haiku Uka area, and TNC's Waikamoi Preserve (EMWP 2009, p. 3). Approximately 7,000 ac (2,833 ha) of the core area consists of State forest reserve and EMI lands, and approximately 5,000 ac (2,024 ha) are within TNC's Waikamoi Preserve. In 2005 and 2006, the Service and others provided funding for the construction of an ungulate exclusion fence at 3,600 ft (1,100 m) elevation and for improving hunter access to EMWP lands. The fence extends from Hanawi Natural Area Reserve west to Koolau Gap, and protects approximately 7,000 ac (2,833 ha) of native forest, including forest in Haiku Uka. The Waikamoi Preserve and Haleakala National Park fences provide the upper boundary of the fenced area (TNC 2006l). The fence was completed in 2006, and the enclosed area of 7,000 ac (2,833 ha) is divided into five units (Honomanu, Koolau Gap, Waluanui, Wailuaiki, and Kopiliua), which are managed through the cooperation of landowners, including EMI, and other partners (EMWP 2009, pp. 3-17). Fencing is one of the most effective strategies currently available to address the threat of ungulates, but it is also costly and difficult to install in the steep, mountainous terrain of Hawaii. The completion of almost 7 mi (11 km) of fencing around an area of 7,000 ac (2,833 ha) for ungulate management represents a significant contribution to the conservation of the Maui Nui species.
The 1993 EMWP management plan was revised in 2006, and included recommendations for improving threat assessment and feral pig control, and developing more cost-effective methods for natural resource assessments. In 2008 and 2009, the Service provided funding for feral pig reduction and fence monitoring on EMI lands in Haiku Uka (USFWS 2008; Van Dyke 2011, in litt.).
The 2006 EMWP management plan was revised in 2009, to provide long-term protection of the east Maui watershed resources such as ground and surface water, native plants and animals and their habitat, hunting opportunities, commercial harvests, cultural resources, and ecotourism. The 2009 EMWP management plan provides detailed management objectives for protection of the east Maui watershed resources, and recommends that the effectiveness of ongoing management actions be evaluated and modified, as needed, after 5 years (EMWP 2009, pp. 3-17, + appendices). The 2009 EMWP management plan describes specific management actions for the protection of the EMWP lands, including Haiku Uka. These management actions include ungulate (
As of 2009, the majority of feral ungulates (
Our records indicate that between 2010 until 2015 there were no consultations conducted regarding projects receiving Federal funding on EMI lands. We believe that there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. EMI has allowed access to their lands to encourage public hunting for the control of feral pigs, goats, and axis deer that pose significant threats to the Maui Nui species. They are founders and active members of the EMWP, and have made significant contributions to the protection of the 47 plants and the 2 forest birds on their lands by assisting in the maintenance of exclosure fences and participating in watershed resource monitoring and invasive weed control. EMI allowed the construction of a significant ungulate exclosure fence extending from Hanawi Natural Area Reserve west to Koolau Gap, resulting in substantial conservation benefits to the Maui Nui species and their habitat. All of these management actions will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 47 plants and the 2 forest bird species, and their habitat.
In this final designation, the Secretary has exercised her authority to exclude 2,094 ac (848 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by Nuu Mauka Ranch. The ongoing management under the Native Watershed Forest Restoration Conservation Plan, LHWRP management plan, and the Southern Haleakala Forest restoration project agreement for Nuu Mauka Ranch lands on east Maui provide for the conservation of 46 plants and the 2 forest birds and their habitat, and demonstrate the positive benefits of the conservation partnership that has been established with Nuu Mauka Ranch. For the reasons described below, we have determined that the benefits of excluding these lands outweigh the benefits of including them in critical habitat.
The area falls within four critical habitat units for plants (Maui—Lowland
Nuu Mauka Ranch is involved in several important voluntary conservation agreements with the Service and other agencies and is currently carrying out activities on their lands for the conservation of rare and endangered species and their habitats. In 2008, the Ranch worked with the USGS-Pacific Island Ecosystem Research Center and NRCS to develop cost-effective, substrate-appropriate restoration methodologies for establishment of native koa forests in degraded pasturelands (Nuu Mauka Ranch and LHWRP 2012, p. 7). Nuu Mauka Ranch is a current partner of the LHWRP, with the main goal of protection and restoration of leeward Haleakala's upland watershed (see “Ulupalakua Ranch,” above, for further discussion). In 2012, Nuu Mauka Ranch obtained a conservation district use permit for a watershed protection project. The ultimate goal of this project is to improve water quality and groundwater recharge through the restoration of degraded agricultural land to a native forest community (Nuu Mauka Ranch and LHWRP 2012, 11 pp.). Nuu Mauka Ranch has contributed approximately $500,000 of their own funds, and received additional funding through the Service and NRCS, for construction of a 7.6-mile long deer-proof fence to prevent access by deer and goats into a 1,023-ac (414 ha) upper elevation watershed area on the south slopes of leeward Haleakala (Southern Haleakala Forest Restoration Project) (Nuu Mauka Ranch and LHWRP 2012, 11 pp.). Nuu Mauka Ranch has also prepared a conservation plan, “Native Watershed Forest Restoration at Nuu Mauka” (2012), and has appended it to the LHWRP management plan. Restoration activities outlined in the plan include mechanical and chemical control of invasive plant species including
Our records indicate that between 2010 until 2015 there were no consultations conducted regarding projects receiving Federal funding on Nuu Mauka Ranch lands, therefore in general we believe that there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. However, as Federal funding has contributed to conservation projects on Nuu Mauka Ranch lands in the past (fence construction for exclusion of ungulates), it is possible that in the future such a conservation project may trigger consultation under Section 7. As consultation for a project designed to provide conservation benefit is most likely to result in a not likely to adversely affect determination, and the benefit accruing from the funded conservation project would be likely relatively greater than the regulatory benefit of critical habitat, the incremental benefit of critical habitat is reduced under such circumstances. Overall, these conservation actions, the Southern Haleakala Forest Restoration Project, and Nuu Mauka Ranch's conservation plan will lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 46 plants and the 2 forest bird species, and their habitat.
In this final designation, the Secretary has exercised her authority to exclude 931 ac (377 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned or managed by Kaupo Ranch. Kaupo Ranch has undertaken voluntary conservation measures on their lands, demonstrating their value as a partner through participation in the LHWRP management plans and the Southern Haleakala Forest Restoration Project for Kaupo Ranch lands on east Maui. These actions provide positive conservation benefits for 26 plant species and their habitat. We have determined that the benefits of excluding Kaupo Ranch lands from critical habitat outweigh the benefits of including them, for the reasons discussed below.
Kaupo Ranch lands fall within three critical habitat units for plants (Maui—Lowland Dry—Unit 1, Maui—Montane Dry—Unit 1, and Maui—Coastal—Unit 7). These units are occupied by the plants
Kaupo Ranch is a current partner of the LHWRP, with the main goal of protection and restoration of leeward Haleakala's upland watershed (LHWRP 2006, 65 pp.). Kaupo Ranch has been a long time cooperator with HNP, providing access to the park's Kaupo Gap hiking trail across their private
Our records indicate that between 2010 until 2015 there was one informal consultation conducted regarding a project receiving Federal funding through NRCS's Environmental Quality Incentives Program (EQIP) on Kaupo Ranch lands for brush management and prescribed grazing to improve ranching operations; however, we concurred that the project would not likely adversely affect the listed Hawaiian hoary bat or the listed Hawaiian goose. We believe that there is a low likelihood of a Federal nexus that would provide a benefit to the species from designation of critical habitat, because past history indicates that any action likely to trigger consultation would likely be designed to benefit the species, and would not result in additional conservation measures. In contrast, conservation actions taken through the LHWRP management plan, cooperation with Haleakala National Park to provide additional public access, creation and protection of a wetland, and construction of an ungulate-exclusion fence to protect dry forest habitat, along with other conservation actions by Kaupo Ranch discussed above, will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 25 plants and their habitat.
In this final designation, the Secretary has exercised her authority to exclude 7,410 ac (2,999 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned or managed by Wailuku Water Company on west Maui, and under management as part of the West Maui Mountains Watershed Partnership (WMMWP). We believe that the ongoing conservation actions through the WMMWP management plan and Partners for Fish and Wildlife Agreements for Wailuku Water Company lands on west Maui provide important conservation benefits for 51 plants and 2 forest birds and their habitat. We have concluded that the benefits of excluding these lands outweigh the benefit of including them in critical habitat, for the reasons discussed below.
The Wailuku Water Company lands fall within 10 critical habitat units for plants (Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Lowland Wet—Unit 5, Maui—Montane Wet—Unit 6, Maui—Montane Wet—Unit 7, Maui—Montane Wet—Unit 8, Maui—Montane Mesic—Unit 5, Maui—Montane Mesic—Unit 6, Maui—Dry Cliff—Unit 7, and Maui—Wet Cliff—Unit 6) and 12 critical habitat units for the two forest birds, the akohekohe and kiwikiu (
Wailuku Water Company is one of the founding members and a funder of the WMMWP, created in 1998. This partnership serves to protect over 47,000 ac (19,000 ha) of forest and watershed vegetation on the summit and slopes of the west Maui mountains (WMMWP 2013). Management priorities of the watershed partnership are: (1) Feral animal control, (2) nonnative plant control, (3) human activities management, (4) public education and awareness, (5) water and watershed monitoring, and (6) management coordination (WMMWP 2013). Four principal streams, Waihee, Waiehu, Iao, and Waikapu, are part of the watershed area owned by the Wailuku Water Company on west Maui, which primarily provide water for agricultural use (WMMWP 2013). Conservation actions described in the WMMWP management plan are partly funded by Service grants through the Partners for Fish and Wildlife Program, with at least three grants recently funding projects on Wailuku Water Company lands (WMMWP 2010, 2011, 2012). Wailuku Water Company's conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates, (2) regular monitoring for ungulates after fencing, (3) monitoring of habitat recovery through photopoints and vegetation succession analyses, and (4)
Our records indicate that between 2010 until 2015 there was one informal consultation conducted regarding a habitat protection project receiving Federal funding through the Service's Partners for Fish and Wildlife program on Wailuku Water Company land; however, we concurred that the project would not likely adversely affect listed plant species. We thus believe there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. The WMMWP management plan and the commitments by Wailuku Water Company to implement the conservation actions listed above will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 51 plants, the 2 forest birds, and their habitat. Through their actions, Wailuku Water Company has enabled the implementation of important conservation activities on their lands, including fencing and removal of ungulates, and weed control and outplanting of native plants. Survey access for rare taxa on private lands allows for the collection of important data regarding these species that would otherwise not be available. These actions demonstrate the willingness of Wailuku Water Company to protect and conserve native habitat and the west Maui watershed on their lands, and their value as a partner in conservation.
In this final designation, the Secretary has exercised her authority to exclude 3,690 ac (1,493 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by the County of Maui DWS on west Maui, and under management as part of the WMMWP. The County of Maui DWS has demonstrated their value as a conservation partner as a founding partner and funder of the WMMWP, which provides for important conservation actions that benefit the Maui Nui species through implementation of the WMMWP management plan on west Maui. The management plans and projects supported by the County of Maui DWS provide for the conservation of 39 plants and the 2 forest birds and their habitat on their lands. For the reasons discussed below, we have determined that the benefits of excluding County of Maui DWS lands outweigh the benefits of including them in critical habitat.
The County of Maui DWS lands fall within three critical habitat units for plants (Maui—Lowland Wet—Unit 4, Maui—Montane Wet—Unit 6, and Maui—Wet Cliff—Unit 6) and six critical habitat units for the two forest birds, the akohekohe and kiwikiu (
Our records indicate that between 2010 until 2015 there was one informal consultation conducted regarding a project receiving Federal funding through the Fish and Wildlife Service's Partners for Fish and Wildlife Program on Maui County lands for habitat protection; however, we concurred that the project would not likely adversely affect listed plant species. We believe that there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. Maui County DWS provides water to approximately 35,000 customers on Maui and Molokai combined (Maui County 2012). The DWS is a founding partner and funder of the WMMWP, with the main goal of protection and restoration of west Maui's upland watershed. The Maui County DWS provides financial support to both the Maui and Molokai watershed partnerships, and to other organizations, private landowners, Federal, and State agencies (Maui County 2012). Conservation actions by Maui County DWS conducted through the WMMWP are also partly funded by Service grants through the Partners for Fish and Wildlife Program (WMMWP 2010, 2011, 2012; USFWS 2010). Maui County DWS's conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates and removal of invasive nonnative plants; (2) regular monitoring to detect changes in management programs; (3) reducing the threat of fire; and (4) gaining community support for conservation programs. In addition, the DWS received funding for installation of an ungulate exclusion fence on the upper portion of their lands on west Maui that protects native habitat and acts as a buffer to the lower boundary of the habitat for plants and the two forest birds. The DWS also received funding in 2010 for feral animal removal from their lands (USFWS 2010). Other conservation actions in this fenced area include weed control and outplanting of native plants. The WMMWP management plan and the commitments by Maui County DWS to implement the conservation actions listed above will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 39 plants, the 2 forest birds, and their habitat. These actions demonstrate the willingness of Maui County DWS to protect and conserve native habitat and the west Maui watershed on their lands,
In this final designation, the Secretary has exercised her authority to exclude 1,217 ac (492 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned or managed by Kamehameha Schools on west Maui, and under management as part of the WMMWP. Kamehameha Schools is an established conservation partner, and has participated in the development, implementation, and funding of management plans and projects that benefit the Maui Nui species and other listed species throughout the Hawaiian islands. In this case, the ongoing conservation actions through the WMMWP management plan for Kamehameha Schools lands on west Maui provide for the conservation of 43 plants and 2 forest birds and their habitat. We have determined that the benefits of excluding Kamehameha Schools lands outweigh the benefits of including them in critical habitat for the reasons discussed below.
The Kamehameha Schools lands fall within four critical habitat units for plants (Maui—Lowland Dry—Unit 5, Maui—Lowland Mesic—Unit 2, Maui—Montane Wet—Unit 6, and Maui—Wet Cliff—Unit 6) and four critical habitat units for the two forest birds, the akohekohe and kiwikiu (
Kamehameha Schools was established in 1887, through the will of Princess Bernice Pauahi Paki Bishop. The trust is used primarily to operate a college preparatory program; however, part of Kamehameha School's mission is to protect Hawaii's environment through recognition of the significant cultural value of the land and its unique flora and fauna. Kamehameha Schools has established a policy to guide the sustainable stewardship of its lands including natural resources, water resources, and ancestral places (Kamehameha Schools 2013). Kamehameha Schools is a founder and funder of the WMMWP, and also participates in the watershed partnerships for Oahu, Molokai, Kauai, and the island of Hawaii (WMMWP 2013). Conservation actions conducted by the WMMWP are partly funded by Service grants through the Partners for Fish and Wildlife Program (WMMWP 2010, 2011, 2012). Kamehameha Schools' conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing; (3) monitoring of habitat recovery; and (4) continued surveys for rare taxa prior to new fence installations. In addition, Kamehameha Schools participated in the construction of strategic ungulate exclusion fences on the upper elevations of their lands on west Maui, which protect native habitat and act as a buffer to the lower boundary of the lowland mesic, montane wet, and wet cliff ecosystems. Other conservation actions in this area include weed control and outplanting of native plants. Kamehameha Schools is also conducting voluntary actions to promote the conservation of rare and endangered species and their lowland dry ecosystem habitats on the island of Hawaii, including the installation of fencing to exclude ungulates, restoring habitat, conducting actions to reduce rodent populations, reestablishing native plant species, and conducting activities to reducing the threat of wildfire. The WMMWP management plan and the commitments by Kamehameha Schools to implement the conservation actions listed above will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 43 plants, the 2 forest birds, and their habitat. Our records indicate that between 2010 until 2015 there were no consultations conducted regarding projects receiving Federal funding on Kamehameha Schools lands, therefore we believe that in general there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. However, as the WMMWP has received Federal funding for conservation projects in the past, it is possible that in the future such a conservation project undertaken on Kamehameha Schools property may trigger consultation under Section 7. As consultation for a project designed to provide conservation benefit is most likely to result in a not likely to adversely affect determination, and the benefit accruing from the funded conservation project would be likely relatively greater than the regulatory benefit of critical habitat, the incremental benefit of critical habitat is reduced under such circumstances. Overall, the actions described above demonstrate the willingness of Kamehameha Schools to protect and conserve native habitat and the watershed on their west Maui lands, and their value as a partner in conservation.
In this final designation, the Secretary has exercised her authority to exclude 3,150 ac (1,275 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned and managed by Makila Land Company on west Maui, and under management as part of the WMMWP. The Makila Land Company is an established partner in the WMMWP, and ongoing conservation actions through the WMMWP management plan for Makila Land Company lands on west Maui provide for the conservation of 47 plants and 2 forest birds and their habitat. For the reasons discussed below, we have determined that the benefits of excluding Makila Land Company lands outweigh the benefits of including them in critical habitat.
The Makila Land Company lands fall within seven critical habitat units for plants (Maui—Lowland Dry—Unit 5,
Makila Land Company has set aside upper elevation areas of their property at Puehuehunui and Kauaula on west Maui for conservation and protection of rare dry to mesic forest communities. Makila Land Company is a long-time cooperator with the WMMWP. Conservation actions conducted by the WMMWP are partly funded by Service grants through the Partners for Fish and Wildlife Program (WMMWP 2010, 2011, 2012). Makila Land Company's conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing; (3) vegetation monitoring; and (4) allowing surveys for rare taxa by the State and the Service's Plant Extinction Prevention Program (PEPP) staff. Much of the area is accessible only by helicopter due to waterfalls and steep terrain. The installation of strategic ungulate exclusion fences on the higher elevation portions of its lands protect native habitat and act as a buffer to the boundaries of the montane wet and wet cliff ecosystems' habitat. Additional conservation actions in these fenced areas include weed control and outplanting of native plants. The WMMWP management plan and the commitments by Makila Land Company to implement the conservation actions listed above will either lead to maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of the 47 plants and 2 forest birds, and their habitat. Our records indicate that between 2010 until 2015 there were no consultations conducted regarding projects receiving Federal funding on Makila Land Company lands. We believe that there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. The actions described above demonstrate the willingness of Makila Land Company to protect and conserve native habitat and the west Maui watershed on their lands, and their value as a partner in conservation.
In this final designation, the Secretary has exercised her authority to exclude 46 ac (19 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned or managed by Kahoma Land Company on west Maui, and under management as part of the WMMWP. The ongoing conservation actions through the WMMWP management plan for Kahoma Land Company lands on west Maui provide for the conservation of 26 plants and 2 forest birds and their habitat. For the reasons discussed below, we have determined that the benefits of excluding Kahoma Land Company lands outweigh the benefits of including them in critical habitat.
Kahoma Land Company lands fall within three critical habitat units for plants (Maui—Lowland Dry—Unit 5, Maui—Lowland Mesic—Unit 2, and Maui—Wet Cliff—Unit 6) and two critical habitat units for the two forest birds, the akohekohe and kiwikiu (
Kahoma Land Company is a coalition of Maui residents formed in June 2000, to acquire former sugar cane land adjacent to Kahoma Valley on west Maui. Kahoma Land Company's long-term management goals for this area include development of land tracts, diversified agriculture, and ecotourism ventures. Approximately 690 ac (279 ha) of the coalition's lands are within the WMMWP boundaries between two State Natural Area Reserves, and 46 ac (19 ha) are within proposed critical habitat. Kahoma Land Company is also a current member of the WMMWP (WMMWP 2013). Kahoma Land Company's conservation actions conducted by the WMMWP are partly funded by Service grants through the Partners for Fish and Wildlife Program (WMMWP 2010, 2011, 2012). Its conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing;
In this final designation, the Secretary has exercised her authority to exclude 25,413 ac (10,284 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by Lanai Resorts, LLC (LR), also known as Pulama Lanai (PL.). Our partnership with PL (and Castle & Cooke Properties, Inc. (CCPI), which holds rights on PL land for the possible development of a wind farm) provides significant conservation benefits to 38 plant and 2 Lanai tree snail species on Lanai, as demonstrated by the ongoing conservation efforts on the island, the commitment to develop the Lanai Natural Resources Plan (LNRP), and a memorandum of understanding (MOU) between the Service and LR and CCPI. For the reasons discussed below, we have determined that the benefits of excluding these areas outweigh the benefits of including them in critical habitat.
The areas owned by LR and CCPI fall within 14 critical habitat units that were proposed for plants (Lanai—Coastal—Unit 1, Lanai—Coastal—Unit 2, Lanai—Coastal—Unit 3, Lanai—Lowland Dry—Unit 1, Lanai—Lowland Dry—Unit 2, Lanai—Lowland Mesic—Unit 1, Lanai—Lowland Wet—Unit 1, Lanai—Lowland Wet—Unit 2, Lanai—Montane Wet—Unit 1, Lanai—Dry Cliff—Unit 1, Lanai—Dry Cliff—Unit 2, Lanai—Dry Cliff—Unit 3, Lanai—Wet Cliff—Unit 1, and Lanai—Wet Cliff—Unit 2) and 10 critical habitat units that were proposed for 2 Lanai tree snails (
In 2001, the Board of Land and Natural Resources (BLNR) approved its department's (Department of Land and Natural Resources (DLNR) participation in a Lanai watershed management program that included the Service (through a private stewardship grant), the Hawaii Department of Health, and CCPI, which at the time, was the primary landowner of Lanai (Leone 2001, in litt). In 2002, the Service and CCPI entered into a memorandum of agreement (MOA) for construction of ungulate-proof fence at Lanaihale, intended to prevent entry by ungulates and to protect the watershed and the listed species within the area. The term of the MOA was through 2025. The fencing of the summit at Lanaihale was planned to be constructed in three stages or “increments.” In 2004, the DLNR also provided funding through the Landowner Incentive Program to the Bishop Museum to remove nonnative plants and outplant and establish a population of more than 500 individuals of
In 2012, CCPI sold the fee interest in their lands on Lanai to Larry Ellison. Ellison subsequently developed PL to manage the island's operations and land. In the sale, CCPI retained the rights to pursue the possible development of a wind power facility in the future.
The Service and PL and CCPI signed an expansive MOU on January 26, 2015, with a term that extends through 2028. Amongst the commitments made by PL and CCPI in this MOU are the following: (1) The completion of a Lanai Natural Resources Plan (LNRP) within 18 months of the date of the agreement. Implementation of the LNRP will include identification of priority ecosystems and species, prioritization of
Under the terms of the MOU, PL will prepare the LNRP. This plan will include a description of detailed management actions with timelines that will benefit and provide protection for 38 plant species, the two Lanai tree snails, and their habitat on the island of Lanai. The MOU provides for the Service to be a member of the LNRP planning and implementation team, and an active participant in the ongoing conservation efforts on the island of Lanai.
PL has committed to implementing certain protective measures in advance of the LNRP to ensure species conversation. Actions currently being implemented include: (1) Planning and construction of an enclosure for the protection of the two Lanai tree snails; (2) planning, construction, and maintenance of fences around three rare plant populations; (3) outplanting of rare species in protected locations; (4) implementation of biosecurity measures to avoid the incursion and spread of invasive species; (5) maintenance of all existing fences; (6) predator control where necessary and appropriate to protect listed species; and (7) identification of other priority actions and sites. These measures are currently underway and being conducted in coordination with the Service.
Our records indicate that between 2010 until 2015 there were no section 7 consultations regarding federally-funded projects on Lanai. We believe that there is a low likelihood of a Federal nexus to provide a benefit to the species from designation of critical habitat. However, we note that CCPI has indicated the possibility of putting forth a project proposal to develop a wind farm on Lanai. Whether such a proposal may proceed, and when, is unknown at this time. Should this occur, however, there would likely be a Federal nexus that would trigger consultation under section 7 on these lands. The Service has considered this possibility, and noted that the most likely placement of towers and roads for a potential wind farm is largely discontinuous with the areas that were proposed as critical habitat. Because any consultation that may occur under section 7 as a result would involve only a very small proportion of the critical habitat proposed on Lanai, in contrast to the significant and comprehensive nature of the conservation benefits to be accrued from the MOU and LNRP, as well as from our partnership with PL and CCPI, we conclude that even if consultation were to take place in the future for such an activity, we do not anticipate that it would result in benefit to the species that would outweigh the benefits realized through the MOU and LNRP, and our partnership with PL and CCPI. The commitments provided under the terms of the MOU between the Service and PL and CCPI, in the form of management actions that will be included the LNRP and actions already underway in advance of the LNRP, will lead to protection of individuals from threats and either maintenance or enhancement of habitat for the species, or lead to emergence of suitable habitat where it is not present, thereby benefitting the conservation of 38 plant species, the two Lanai tree snails, and their habitat on the island of Lanai. The development of the MOU with the Service to protect listed species on the island of Lanai, the current conservation efforts underway by PL, and the development of the Lanai Natural Resources Plan by PL demonstrates the willingness of PL and CCPI to contribute to the conservation of listed species and their habitat, and their value as a partner in conservation. The strength of this partnership leads us to anticipate that these benefits will continue into the future.
Of the remaining 109 consultations, 25 were informal consultations and 84 were requests for technical assistance or species lists. The majority (19) of these informal consultations were conducted for projects involving road repair or modifications, bridge repairs, or construction of communications towers. Eight of the informal consultations involved projects in areas being excluded from critical habitat; however, we concurred with each agency's determination that the project, as proposed, was not likely to adversely affect listed species. We did conduct a single formal consultation, in 2008, on the construction of a communications tower funded by the FCC. However, the project area did not fall within critical habitat boundaries, and as we have no information to suggest that any similar activity is likely to occur again, there is little benefit that would be gained through the designation of critical habitat. Based on our consultation history on these lands (one formal consultation in 2008, and only 7 informal consultations over the past 5 years) and the fact that most of these informal consultations were for federally funded actions designed to benefit the species, we find it unlikely that the designation of critical habitat would provide significant benefits to the species through section 7 consultation in these particular cases.
In addition, if a Federal nexus were to occur for an action taking place within an area occupied by one or more listed species, section 7 consultation would already be triggered and the Federal agency would consider the effects of its
In addition, the existing conservation programs being implemented by these landowners substantially reduce the regulatory benefits of critical habitat. All of the areas described are managed by proven conservation partners, and have management plans in place that provide significant benefits to the Maui Nui species and their habitat, as detailed above. The designation of critical habitat carries no requirement that non-Federal landowners undertake any proactive conservation measures, for example with regard to the maintenance, restoration, or enhancement of habitat for listed species. Any voluntary action by a non-Federal landowner that contributes to the maintenance, restoration, or enhancement of habitat is therefore a valuable benefit to the listed species, and in the particular cases considered here, is a significant benefit above and beyond that which can be provided by critical habitat designation. Based on the track record of these landowners, it is reasonable to expect that these beneficial conservation efforts will continue into the future and that critical habitat would provide little conservation benefit in comparison.
Another potential benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, State and local government agencies, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the Maui Nui species and their habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, in these cases, the educational value of critical habitat is limited because the landowners and land managers in question are already aware of the presence of the species, are knowledgeable about the species, and have furthermore already taken proactive steps to manage for the conservation of these species, as demonstrated by their ongoing conservation efforts and participation in conservation agreements.
There is a long history of critical habitat designation in Hawaii, and neither the State nor county jurisdictions have ever initiated their own additional requirements in areas because they were identified as critical habitat. Therefore, based on this history, we believe this potential benefit of critical habitat is limited.
The designation of critical habitat, on the other hand, could have an unintended negative effect on our relationship with non-Federal landowners and land managers due to the perceived imposition of government regulation. According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main
In contrast, the benefits derived from excluding these owners and enhancing our partnership with these landowners and land managers is significant. The positive conservation results that we believe will be realized through the maintenance of these existing partnerships, as well as through the encouragement of future partnerships for listed species, are a significant benefit of exclusion. In cases such as these, where the benefits of including the areas in question are minimal, the benefits of excluding proven partners with such a positive track record for proactive conservation measures are relatively greater.
For the reasons discussed above, we have determined that the additional regulatory benefit of designating critical habitat, afforded through the section 7(a)(2) consultation process, is minimal because of limited potential for a Federal nexus not related to conservation actions and because conservation measures specifically benefitting the Maui Nui species and their habitat are in place as demonstrated by the provisions of the various management plans and voluntary agreements described above. The positive conservation outcomes provided by these plans and agreements greatly reduce the benefit of critical habitat in the specific cases considered here. In addition, the potential educational and informational benefits of critical habitat designation on lands containing the physical or biological features essential to the conservation of the Maui Nui species would be minimal, because the landowners and land managers under consideration are already making significant contributions to our understanding of these species, and continue to disseminate useful information to the public.
On the other hand, because voluntary conservation efforts for the benefit of listed species on private lands are so valuable, the Service considers the maintenance and encouragement of proven conservation partnerships to be a significant benefit of exclusion. The development and maintenance of effective working partnerships with private landowners for the conservation of listed species is particularly important in areas such as Hawaii, a State with relatively little Federal landownership but many species of conservation concern. Excluding these areas from critical habitat will help foster the partnership we have developed with the landowners and land managers in question have developed with Federal, State, and local conservation organizations, and will encourage the continued implementation of voluntary conservation actions for the benefit of the Maui Nui species and their habitat on these lands. In addition, these partnerships not only provide a benefit for the conservation of the Maui Nui species, but may also serve as a model and aid in fostering future cooperative relationships with other parties here and in other locations for the benefit of other endangered or threatened species. Therefore, in consideration of the factors discussed above in the
At present, the designation of critical habitat on Lanai would add little, if any, additional benefit beyond that provided by the MOU and LNRP, as our consultation history indicates there is little likelihood of a Federal nexus on these lands that would potentially trigger the consideration of adverse modification or destruction of critical habitat through section 7 consultation. It is possible, however, that consultation may be triggered in the future by a Federal permitting requirement should CCPI decide to pursue their option to develop a wind farm on the island. Even under such a circumstance, however (which currently remains speculative), we believe that consultation would be unlikely to result in benefits to the Maui Nui species greater than those realized through the MOU and LNRP, as critical habitat was not proposed within the potential footprint of the prospective wind farm, and similar consultations in the past have resulted in not likely to destroy or adversely modify findings (see
The benefits of exclusion, on the other hand, are substantial, as excluding areas covered by existing plans and programs can encourage land managers to partner with the Services in the future, by removing any real or perceived disincentives for engaging in conservation activities, and thereby provide a benefit by encouraging future conservation partnerships and beneficial management actions. We give great weight to the benefits of excluding areas where we have demonstrated partnerships, especially on private lands. Here the development of the MOU with the Service to protect listed species on the island of Lanai, the current conservation efforts underway by PL, and the development of the Lanai Natural Resources Plan by PL demonstrates the willingness of PL and CCPI to contribute to the conservation of listed species and their habitat, and their value as a partner in conservation. Their conservation actions provide significant benefits for the Maui Nui species and their habitat on these private lands beyond those that can be achieved through critical habitat and section 7 consultations, and significant conservation benefits would be realized through the exclusion of these lands, which will continue and strengthen our positive relationship with PL and CCPI, as well as encourage additional beneficial conservation partnerships in the future. The combination of conservation gained from continuing management actions by this landowner and the importance of maintaining, enhancing, and developing conservation partnerships in this situation are sufficient to outweigh the potential benefits that may be realized through section 7 for these areas. The Secretary has therefore concluded that in this particular case, the benefits of excluding PL and CCPI lands outweigh those of including them in critical habitat. As detailed below, the Secretary has further determined that such exclusion will not result in the extinction of any of the Maui Nui species in question.
In each case, we have evaluated ongoing conservation efforts that are currently in effect through existing management plans and determined that such efforts will adequately protect the geographical areas containing the physical or biological features essential to the conservation of the species. An important consideration as we evaluate these exclusions and their potential effect on the species in question is that critical habitat does not carry with it a regulatory requirement to restore or actively manage habitat for the benefit of listed species; the regulatory effect of critical habitat is only the avoidance of destruction or adverse modification of critical habitat should an action with a Federal nexus occur. It is therefore advantageous for the conservation of the species to support the proactive efforts of non-Federal landowners who are contributing to the enhancement of essential habitat features for listed species through exclusion. The actions of the non-Federal landowners we have excluded from critical habitat in this final rule provide tangible conservation benefits that reduce the likelihood of extinction for the Maui Nui species and increase the recovery potential of these species.
We have determined that there is a low likelihood of a Federal nexus that would trigger the regulatory protections of critical habitat for many of the areas excluded here. However, for those areas that may have projects occur with a Federal nexus and affecting any of the listed species in occupied areas, the jeopardy standard of section 7 of the Act, coupled with current land management measures that are not under Federal purview, provides assurances that these species will not go extinct as a result of excluding these lands from the critical habitat designation. For projects that may occur in areas not occupied by any listed species and that have a Federal nexus, there is greater potential for critical habitat to provide some benefit through consultation to assure the avoidance of destruction or adverse modification of critical habitat. However, for the particular areas excluded here, we have analyzed section 7 consultation history and determined that most past Federal actions have been designed to benefit the species or habitat (
We particularly considered the potential for extinction as a result of exclusion from critical habitat for those species in this rule which occur only on lands being excluded from the final designation. These include the listed species that occur only on Lanai (the two Lanai tree snails, and the plants
In addition, the species for which we are excluding critical habitat are subject to other protections as well; these protections remain in effect even absent the designation of critical habitat. Section 195D-4 of Hawaii Revised Statutes (endangered species and threatened species) stipulates that species determined to be endangered or threatened under the Federal Act shall be deemed endangered or threatened under the State law. Under the State law, it is unlawful, with some exceptions, to “take” such species, or to possess, sell, carry or transport them. The statutory protections for this species under State law provide additional assurances that exclusion of this area from critical habitat will not result in extinction of one or more of the Maui Nui species in this final rule that currently occupy, or potentially could occupy, these lands.
We have thoroughly considered the effect of each of the exclusions made in this final rule. In every case, exclusion is based upon the strength of existing conservation actions, commitments, and partnerships, which our analysis demonstrates will provide significant conservation benefits to the Maui Nui species, above and beyond those that would be realized through the designation of critical habitat. Based on the management plans and agreements in place, and the proven track record of our conservation partners, we reasonably assume these positive actions will continue into the future. For all of these reasons, we conclude not only that exclusion will not result in the extinction of any of the Maui Nui species, but that exclusion will result in the improvement of the status of each species in question, due to the positive conservation efforts taking place in those areas excluded. Therefore, based on all of these considerations, the Secretary has determined that the failure to designate any of the areas proposed as critical habitat as a result of exclusion will not result in the extinction of the species concerned, and is exercising her discretion under section 4(b)(2) of the Act to exclude from this final critical habitat designation portions of the proposed critical habitat units that are within the areas identified in Table 89, totaling 84,891 ac (34,354 ha).
As discussed under
We have excluded from the final critical habitat designation a variety of lands for which there is evidence of a conservation partnership with private landowners. We find that the benefits of the critical habitat exclusions outweigh the benefits of including the areas as critical habitat. This is largely due to (1) the important role that conservation of the species' habitats on private lands will play in the recovery of each species; (2) the need to maintain or develop effective cooperative conservation partnerships with private landowners; and (3) the likely increase in cooperation from a significant proportion of private landowners that will occur as a result of the exclusions from critical habitat.
Maps of areas essential to the conservation of the species covered in this rule, identified through designated critical habitat, or through partnerships and conservation agreements with landowners and land managers but excluded from critical habitat under section 4(b)(2) of the Act, are available in the document “Supplementary Information for the Designation and Nondesignation of Critical Habitat on Molokai, Lanai, Maui, and Kahoolawe for 135 Species,” available on the Internet at
The total area excluded from critical habitat designation in this rule is summarized by landowner in the following table.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria is relevant to this analysis. As described in the economic analysis (FEA 2015, Chapter 4 and Appendix A), renewable energy projects (
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) The designation of critical habitat imposes no obligation on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. Consequently, we do not believe that the critical habitat designation will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in Hawaii. We received comments from Hawaii elected officials; Maui County Council; Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife; Hawaii Department of Hawaiian Home Lands; Hawaii Department of Agriculture; the University of Hawaii Institute for Astronomy; Maui County Police Department; and, Maui County Planning Department and have addressed them in the Summary of Comments and Recommendations section of the rule. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of the physical or biological features essential to the conservation of the Maui Nui species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (NEPA; 42 U.S.C. 4321
A complete list of references cited is available on the Internet at
The primary authors of this document are the staff members of the Pacific Islands Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.
The revisions read as follows:
(h) * * *
The revisions and additions read as follows:
(h) * * *
The additions read as follows:
(b)
Crested Honeycreeper (Akohekohe) (
(1) Critical habitat units are depicted for Maui County, Hawaii, on the maps below.
(2)
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units 2, 3, 4, 5, 6, 7, 8, 9, 38, and 39, the primary constituent elements of critical habitat for the Akohekohe are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units 10, 11, 12, 13, 14, 15, 16, 40, and 41, the primary constituent elements of critical habitat for the Akohekohe are:
(A) Elevation: Between 3,300 and 6,500 ft (1,000 and 2,000 m)
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units 18, 19, 20, 21, 22, and 42, the primary constituent elements of critical habitat for the Akohekohe are:
(A) Elevation: Between 3,300 and 6,500 ft (1,000 and 2,000 m).
(B) Annual precipitation: Between 50 and 75 in (130 and 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units 24 and 25, the primary constituent elements of critical habitat for the Akohekohe are:
(A) Elevation: Between 6,500 and 9,800 ft (2,000 and 3,000 m).
(B) Annual precipitation: Between 15 and 40 in (38 and 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(vi) In units 26, 27, 28, and 29, the primary constituent elements of critical habitat for the Akohekohe are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(vii) In units 30, 31, 32, 33, 35, 36, 43, and 44, the primary constituent elements of critical habitat for the Akohekohe are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
(3) Existing manmade features and structures, such as buildings, roads, railroads, airports, runways, other paved areas, lawns, and other urban landscaped areas, do not contain one or more of the physical or biological features. Federal actions limited to those areas, therefore, would not trigger a consultation under section 7 of the Act unless they may affect the species or physical or biological features in adjacent critical habitat.
(4)
(5) Index maps of critical habitat units for the Akohekohe follow:
(6)
(7)
(8)
(9)
(10)
(11)
(12) [Reserved]
(13)
(14)
(15) [Reserved]
(16)
(17)
(18)
(19)
(20)
(21) [Reserved]
(22)
(23)
(24)
(25)
(26)
(27)
Maui Parrotbill (Kiwikiu) (
(1) Critical habitat units are depicted for Maui County, Hawaii, on the maps below.
(2)
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units 2, 3, 4, 5, 6, 7, 8, 9, 38, and 39, the primary constituent elements of critical habitat for the Kiwikiu are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units 10, 11, 12, 13, 14, 15, 16, 40, and 41, the primary constituent elements of critical habitat for the Kiwikiu are:
(A) Elevation: Between 3,300 and 6,500 ft (1,000 and 2,000 m)
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units 18, 19, 20, 21, 22, and 42, the primary constituent elements of critical habitat for the Kiwikiu are:
(A) Elevation: Between 3,300 and 6,500 ft (1,000 and 2,000 m).
(B) Annual precipitation: Between 50 and 75 in (130 and 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units 24 and 25, the primary constituent elements of critical habitat for the Kiwikiu are:
(A) Elevation: Between 6,500 and 9,800 ft (2,000 and 3,000 m).
(B) Annual precipitation: Between 15 and 40 in (38 and 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(vi) In units 26, 27, 28, and 29, the primary constituent elements of critical habitat for the Kiwikiu are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(vii) In units 30, 31, 32, 33, 35, 36, 43, and 44, the primary constituent elements of critical habitat for the Kiwikiu are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
(3) Existing manmade features and structures, such as buildings, roads, railroads, airports, runways, other paved areas, lawns, and other urban landscaped areas, do not contain one or more of the physical or biological features. Federal actions limited to those areas, therefore, would not trigger a consultation under section 7 of the Act unless they may affect the species or physical or biological features in adjacent critical habitat.
(4)
(5) Index maps of critical habitat units for the Kiwikiu follow:
(6)
(7)
(8)
(9)
(10)
(11)
(12) [Reserved]
(13)
(14)
(15) [Reserved]
(16)
(17)
(18)
(19)
(20)
(21) [Reserved]
(22)
(23)
(24)
(25)
(26)
(27)
(f)
Newcomb's tree snail (
(1) The critical habitat unit is depicted for Maui County, Hawaii, on the map below.
(2)
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
(3) Existing manmade features and structures, such as buildings, roads, railroads, airports, runways, other paved areas, lawns, and other urban landscaped areas, do not contain one or more of the physical or biological features. Federal actions limited to those areas, therefore, would not trigger a consultation under section 7 of the Act unless they may affect the species or physical or biological features in adjacent critical habitat.
(4)
(5)
The revisions and additions read as follows:
(a) * * *
(1) * * *
(cxxxiv) * * *
(B)
(clxxi) * * *
(B) Note: Map 86 follows:
(c)
(1) NOTE: Map 1—Index map follows:
(2) Molokai—Coastal—Unit 1 (125 ac, 50 ha) and Molokai—Coastal—Unit 2 (977 ac, 396 ha).
(i) These units are critical habitat for
(ii) Map of Molokai—Coastal—Unit 1 and Molokai—Coastal—Unit 2 (Map 2) follows:
(3) Molokai—Coastal—Unit 3 (805 ac, 325 ha), Molokai—Coastal—Unit 4 (10 ac, 4 ha), and Molokai—Coastal—Unit 5 (1 ac, 0.5 ha).
(i) These units are critical habitat for
(ii) Map of Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, and Molokai—Coastal—Unit 5 (Map 3) follows:
(4) Molokai—Coastal—Unit 6 (1,884 ac, 762 ha) and Molokai—Coastal—Unit 7 (49 ac, 24 ha).
(i) These units are critical habitat for
(ii) Map of Molokai—Coastal—Unit 6 and Molokai—Coastal—Unit 7 (Map 4) follows:
(5) Molokai—Lowland Dry—Unit 1 (24 ac, 10 ha).
(i) This unit is critical habitat for
(ii) Map of Molokai—Lowland Dry—Unit 1 (Map 5) follows:
(6) Molokai—Lowland Dry—Unit 2 (589 ac, 238 ha)
(i) This unit is critical habitat for
(ii) Map of Molokai—Lowland Dry—Unit 2 (Map 6) follows:
(7) Molokai—Lowland Mesic—Unit 1 (8,770 ac, 3,549 ha).
(i) This unit is critical habitat for
(ii) Map of Molokai—Lowland Mesic—Unit 1 (Map 7) follows:
(8) Molokai—Lowland Wet—Unit 1 (2,949 ac, 1,193 ha), Molokai—Lowland Wet—Unit 2 (1,950 ac, 789 ha), and Molokai—Lowland Wet—Unit 3 (3,219 ac, 1,303 ha).
(i) These units are critical habitat for
(ii) Map of Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3 (Map 8) follows:
(9) Molokai—Montane Wet—Unit 1 (3,397 ac, 1,375 ha), Molokai—Montane Wet—Unit 2 (910 ac, 368 ha), and Molokai—Montane Wet—Unit 3 (803 ac, 325 ha).
(i) These units are critical habitat for
(ii) Map of Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3 (Map 9) follows:
(10) Molokai—Montane Mesic—Unit 1 (816 ac, 330 ha).
(i) This unit is critical habitat for
(ii) Map of Molokai-Montane Mesic—Unit 1 (Map 10) follows:
(11) Molokai—Wet Cliff—Unit 1 (1,607 ac, 651 ha), Molokai—Wet Cliff—Unit 2 (1,268 ac, 513 ha), and Molokai—Wet Cliff—Unit 3 (1,362 ac, 551 ha).
(i) This unit is critical habitat for
(ii) Map of Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3 (Map 11) follows:
(d)
(1)
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, Molokai—Coastal—Unit 7, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Molokai—Lowland Mesic—Unit 1 and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, Molokai—Coastal—Unit 7, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—
(i) In units Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2,
(i) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Unrestricted.
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(iv) Canopy: None.
(v) Subcanopy:
(vi) Understory: Bryophytes, ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Fern,
Molokai—Lowland Mesic—Unit 1, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Dry—Unit 1, Molokai—Lowland Dry—Unit 2, and Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Lowland Dry—Unit 1 and Molokai—Lowland Dry—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Molokai—Lowland Mesic—Unit 1 and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Dry—Unit 1 and Molokai—Lowland Dry—Unit 2, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, Molokai—Coastal—Unit 7, Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes;
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iv) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, Molokai—Coastal—Unit 7, Molokai—Lowland Dry—Unit 1, Molokai—Lowland Dry—Unit 2, and Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Dry—Unit 1 and Molokai—Lowland Dry—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai--Montane Wet—Unit 1, Molokai--Montane Wet--Unit 2, Molokai--Montane Wet--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai--Lowland Mesic--Unit 1, Molokai--Montane Wet--Unit 1, Molokai--Montane Wet--Unit 2, and Molokai--Montane Wet--Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai--Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai--Montane Wet—Unit 1, Molokai--Montane Wet--Unit 2, and Molokai--Montane Wet--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai--Lowland Mesic--Unit 1, Molokai--Lowland Wet--Unit 1, Molokai--Lowland Wet--Unit 2, Molokai--Lowland Wet--Unit 3, Molokai--Montane Wet--Unit 1, Molokai--Montane Wet--Unit 2, Molokai--Montane Wet--Unit 3, Molokai--Montane Mesic--Unit 1, Molokai--Wet Cliff--Unit 1, Molokai--Wet Cliff--Unit 2, and Molokai--Wet Cliff--Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai--Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai--Lowland Wet—Unit 1, Molokai--Lowland Wet--Unit 2, and Molokai--Lowland Wet--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai--Montane Wet—Unit 1, Molokai--Montane Wet--Unit 2, and Molokai--Montane Wet--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In unit Molokai--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units Molokai--Wet Cliff--Unit 1, Molokai--Wet Cliff--Unit 2, and Molokai--Wet Cliff--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, Molokai—Coastal—Unit 7, Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, Molokai—Coastal—Unit 7, Molokai—Lowland Dry—Unit 1, and Molokai—Lowland Dry—Unit 2, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Dry—Unit 1 and Molokai—Lowland Dry—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Molokai—Lowland Dry—Unit 1 and Molokai—Lowland Dry—Unit 2, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Dry—Unit 1 and Molokai—Lowland Dry—Unit 2, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Coastal—Unit 1, Molokai—Coastal—Unit 2, Molokai—Coastal—Unit 3, Molokai—Coastal—Unit 4, Molokai—Coastal—Unit 5, Molokai—Coastal—Unit 6, and Molokai—Coastal—Unit 7, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1 and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1 and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1 and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1 and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1 and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
(2)
Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, Molokai—Montane Wet—Unit 3, Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In units Molokai—Montane Wet—Unit 1, Molokai—Montane Wet—Unit 2, and Molokai—Montane Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In units Molokai—Wet Cliff—Unit 1, Molokai—Wet Cliff—Unit 2, and Molokai—Wet Cliff—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Molokai—Lowland Mesic—Unit 1, Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, Molokai—Lowland Wet—Unit 3, and Molokai—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) In unit Molokai—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Molokai—Lowland Wet—Unit 1, Molokai—Lowland Wet—Unit 2, and Molokai—Lowland Wet—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In unit Molokai—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (c) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Shallow soils, little to no herbaceous layer.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Molokai—Montane Wet—Unit 1, Molokai--Montane Wet--Unit 2, and Molokai--Montane Wet--Unit 3, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Molokai--Coastal--Unit 1, Molokai--Coastal--Unit 2, Molokai--Coastal--Unit 3, Molokai--Coastal--Unit 4, Molokai--Coastal--Unit 5, Molokai--Coastal--Unit 6, and Molokai--Coastal—Unit 7, identified in the legal descriptions in paragraph (c) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
(e)
(1)
(i) NOTE: Map 1—East Maui Index map follows:
(ii) NOTE: Map 2—West Maui Index map follow:
(iii) Maui--Coastal--Unit 1 (2 ac, 1 ha), Maui--Coastal--Unit 2 (25 ac, 10 ha), Maui--Coastal--Unit 3 (10 ac, 4 ha), and Maui--Coastal--Unit 4 (74 ac, 30 ha).
(A) These units are critical habitat for
(B) Map of Maui--Coastal--Unit 1, Maui--Coastal--Unit 2, Maui--Coastal--Unit 3, and Maui--Coastal--Unit 4 (Map 3) follows:
(iv) Maui--Coastal--Unit 5 (26 ac, 11 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Coastal--Unit 5 (Map 4) follows:
(v) Maui--Coastal--Unit 6 (356 ac, 144 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Coastal--Unit 6 (Map 5) follows:
(vi) Maui--Coastal--Unit 7 (46 ac, 19 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Coastal--Unit 7 (Map 6) follows:
(vii) Maui--Coastal--Unit 8 (493 ac, 200 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Coastal--Unit 8 (Map 7) follows:
(viii) Maui--Coastal--Unit 9 (170 ac, 69 ha), Maui--Coastal--Unit 10 (173 ac, 70 ha), and Maui--Coastal--Unit 11 (6 ac, 3 ha).
(A) These units are critical habitat for
(B) Map of Maui--Coastal--Unit 9, Maui--Coastal--Unit 10, and Maui--Coastal--Unit 11 (Map 8) follows:
(ix) Maui--Lowland Dry--Unit 1 (13,537 ac, 5,478 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Lowland Dry--Unit 1 (Map 9) follows:
(x) Maui—Lowland Dry—Unit 2 (1,851 ac, 749 ha), Maui—Lowland Dry—Unit 3 (188 ac, 76 ha), and Maui—Lowland Dry—Unit 4 (1,266 ac, 512 ha).
(A) Maui—Lowland Dry—Unit 2 is critical habitat for
(B) Maui—Lowland Dry—Unit 3 and Maui—Lowland Dry—Unit 4 are critical habitat for
(C) Map of Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4 (Map 10) follows:
(xi) Maui—Lowland Dry—Unit 5 (3,658 ac, 1,480 ha) and Maui—Lowland Dry—Unit 6 (240 ac, 97 ha).
(A) These units are critical habitat for
(B) Map of Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6 (Map 11) follows:
(xii) Maui—Lowland Mesic—Unit 1 (1,882 ac, 762 ha).
(A) This unit is critical habitat for
(B) Map of Maui—Lowland Mesic--Unit 1 (Map 12) follows:
(xiii) Maui--Lowland Mesic--Unit 2 (1,147 ac, 464 ha) and Maui--Lowland Mesic--Unit 3 (477 ac, 193 ha).
(A) These units are critical habitat for
(B) Map of Maui--Lowland Mesic--Unit 2 and Maui--Lowland Mesic--Unit 3 (Map 13) follows:
(xiv) Maui--Lowland Wet--Unit 1 (16,079 ac, 6,507 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Lowland Wet--Unit 1 (Map 14) follows:
(xv) Maui--Lowland Wet--Unit 2 (65 ac, 26 ha), Maui--Lowland Wet--Unit 3 (1,247 ac, 505 ha), Maui--Lowland Wet--Unit 4 (864 ac, 350 ha), and Maui--Lowland Wet--Unit 6 (136 ac, 55 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Lowland Wet--Unit 2, Maui--Lowland Wet--Unit 3, Maui---Lowland Wet--Unit 4, and Maui--Lowland Wet--Unit 6 (Map 15) follows:
(xvi) Maui--Lowland Wet--Unit 5 (30 ac, 12 ha), Maui--Lowland Wet--Unit 7 (898 ac, 364 ha), and Maui--Lowland Wet--Unit 8 (230 ac, 93 ha).
(A) These units are critical habitat for
(B) Map of Maui--Lowland Wet--Unit 5, Maui--Lowland Wet--Unit 7, and Maui--Lowland Wet--Unit 8 (Map 16) follows:
(A) This unit is critical habitat for
(B) Map of Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5 (Map 17) follows:
(xviii) Maui--Montane Wet--Unit 6 (1,399 ac, 566 ha), and Maui--Montane Wet--Unit 7 (80 ac, 32 ha).
(A) These units are critical habitat for
(B) Map of Maui--Montane Wet--Unit 6 and Maui--Montane Wet--Unit 7 (Map 18) follows:
(xix) Maui--Montane Mesic--Unit 1 (10,972 ac, 4,440 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Montane Mesic--Unit 1 (Map 19) follows:
(xx) Maui—Montane Mesic—Unit 2 (124 ac, 50 ha), Maui—Montane Mesic—Unit 3 (174 ac; 70 ha), Maui—Montane Mesic—Unit 4 (72 ac, 29 ha), and Maui—Montane Mesic—Unit 5 (170 ac, 69 ha).
(A) These units are critical habitat for
(B) Map of Maui--Montane Mesic--Unit 2, Maui--Montane Mesic--Unit 3, Maui--Montane Mesic--Unit 4, and Maui--Montane Mesic--Unit 5 (Map 20) follows:
(xxi) Maui—Montane Dry--Unit 1 (3,524 ac, 1,426 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Montane Dry--Unit 1 (Map 21) follows:
(xxii) Maui--Subalpine--Unit 1 (15,975 ac, 6,465 ha) and Maui--Subalpine--Unit 2 (9,886 ac, 4,001 ha).
(A) These units are critical habitat for
(B) Map of Maui--Subalpine--Unit 1 and Maui--Subalpine--Unit 2 (Map 22) follows:
(xxiii) Maui--Alpine--Unit 1 (1,797 ac, 727 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Alpine--Unit 1 (Map 23) follows:
(xxiv) Maui—Dry Cliff--Unit 1 (755 ac, 305 ha), Maui--Dry Cliff—Unit 2 (688 ac, 279 ha), Maui—Dry Cliff--Unit 3 (200 ac, 81 ha), and Maui—;Dry Cliff—Unit 4 (315 ac, 127 ha).
(A) These units are critical habitat for
(B) Map of Maui--Dry Cliff--Unit 1, Maui--Dry Cliff--Unit 2, Maui--Dry Cliff--Unit 3, and Maui--Dry Cliff--Unit 4 (Map 24) follows:
(xxv) Maui--Dry Cliff--Unit 5 (1,298 ac, 525 ha) and Maui--Dry Cliff--Unit 6 (279 ac, 113 ha).
(A) These units are critical habitat for
(B) Map of Maui--Dry Cliff--Unit 5 and Maui--Dry Cliff--Unit 6 (Map 25) follows:
(xxvi) Maui--Wet Cliff--Unit 1 (290 ac, 117 ha).
(A) This unit is critical habitat for
(B) Map of Maui--Wet Cliff--Unit 1 (Map 26) follows:
(xxvii) Maui--Wet Cliff--Unit 2 (1,407 ac, 569 ha), Maui--Wet Cliff--Unit 3 (438 ac, 177 ha), and Maui--Wet Cliff--Unit 4 (184 ac, 75 ha).
(A) These units are critical habitat for
(D) Map of Maui--Wet Cliff--Unit 2, Maui--Wet Cliff--Unit 3, and Maui--Wet Cliff--Unit 4 (Map 27) follows:
(xxviii) Maui--Wet Cliff--Unit 6 (2,111 ac, 854 ha), Maui--Wet Cliff--Unit 7 (557 ac, 225 ha), and Maui--Wet Cliff--Unit 8 (337 ac, 137 ha).
(A) These units are critical habitat for
(B) Maui--Wet Cliff--Unit 6, Maui--Wet Cliff--Unit 7, and Maui--Wet Cliff--Unit 8 (Map 28) follows:
(xxix) OCCUPANCY OF SPECIES BY DESIGNATED CRITICAL HABITAT UNITS FOR MAUI
(2)
(i) NOTE: Map 29, Kahoolawe Index Map, follows:
(ii) Kahoolawe--Coastal--Unit 1 (1,516 ac, 613 ha) and Kahoolawe--Coastal--Unit 2 (12 ac, 5 ha).
(A) These units are critical habitat for
(B) Map of Kahoolawe--Coastal--Unit 1 and Kahoolawe--Coastal--Unit 2 (Map 30) follows:
(iii) Kahoolawe--Coastal--Unit 3 (189 ac, 76 ha).
(A) This unit is critical habitat for
(B) Map of Kahoolawe--Coastal--Unit 3 (Map 31) follows:
(iv) Kahoolawe--Lowland Dry--Unit 1 (1,220 ac, 494 ha).
(A) This unit is critical habitat for
(B) Map of Kahoolawe--Lowland Dry--Unit 1 (Map 32) follows:
(v) Kahoolawe--Lowland Dry--Unit 2 (3,205 ac, 1,297 ha).
(A) This unit is critical habitat for
(B) Map of Kahoolawe--Lowland Dry--Unit 2 (Map 33) follows:
(f)
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Coastal—Unit 1, Maui—Coastal—Unit 2, Maui—Coastal—Unit 3, Maui—Coastal—Unit 4, Maui—Coastal—Unit 5, Maui—Coastal—Unit 6, Maui—Coastal—Unit 7, Maui—Coastal—Unit 8, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Coastal—Unit 1, Maui—Coastal—Unit 2, Maui—Coastal—Unit 3, Maui—Coastal—Unit 4, Maui—Coastal—Unit 5, Maui—Coastal—Unit 6, Maui—Coastal—Unit 7, and Maui—Coastal—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui—Montane Wet—Unit 6 and Maui—Montane Wet—Unit 7, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, and Maui—Lowland Dry—Unit 6, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Montane Mesic—Unit 1, Maui—Subalpine—Unit 1, Maui—Subalpine—Unit 2, Maui—Alpine—Unit 1, Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, and Maui—Dry Cliff—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In units Maui—Subalpine—Unit 1 and Maui—Subalpine—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Maui—Alpine-Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Greater than 9,800 ft (3,000 m).
(B) Annual precipitation: 30 to 50 in (75 to 125 cm).
(C) Substrate: Barren gravel, debris, cinders.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: None.
(iv) In units Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, and Maui—Dry Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Lowland Mesic—Unit 2, Maui—Lowland Mesic—Unit 3, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Mesic—Unit 1, Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, Maui—Dry Cliff—Unit 4, Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, Maui—Wet Cliff—Unit 4, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Mesic—Unit 2 and Maui—Lowland Mesic—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, and Maui—Dry Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(vi) In units Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, Maui—Wet Cliff—Unit 4, Maui—Wet Cliff—Unit 6, Maui-Wet Cliff—Unit 7, and Maui—Wet Cliff-Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui-Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Wet—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, and the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Wet—Unit 6, Maui—Montane Wet—Unit 7, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 6 and Maui—Montane Wet—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Mesic—Unit 1, Maui—Subalpine—Unit 1, Maui—Subalpine—Unit 2, Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, and Maui—Dry Cliff—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Maui—Subalpine—Unit 1 and Maui—Subalpine—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, and Maui—Dry Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
Maui—Wet Cliff-Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal
(i) Elevation: Unrestricted.
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(iv) Canopy: None.
(v) Subcanopy:
(vi) Understory: Bryophytes, ferns,
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Dry Cliff—Unit 5, Maui—Dry Cliff—Unit 6, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Dry Cliff—Unit 5 and Maui—Dry Cliff—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(iv) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Lowland Mesic—Unit 2, Maui—Lowland Mesic—Unit 3, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, Maui—Montane Mesic—Unit 5, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Mesic—Unit 2 and Maui—Lowland Mesic—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iv) In units Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, and Maui-Montane Mesic—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Dry Cliff—Unit 5, Maui—Dry Cliff—Unit 6, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Dry Cliff—Unit 5 and Maui—Dry Cliff—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Coastal—Unit 1, Maui—Coastal—Unit 2, Maui—Coastal—Unit 3, Maui—Coastal—Unit 4, Maui—Coastal—Unit 5, Maui—Coastal—Unit 6, Maui—Coastal—Unit 7, Maui—Coastal—Unit 8, Maui—Coastal—Unit 9, Maui—Coastal—Unit 10, and Maui—Coastal—Unit 11, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitutes critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(ii) Substrate: Deep ash deposits, thin silty loams.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet-Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui-Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Wet—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitutes critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Wet—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Mesic—Unit 1, Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui—Lowland Mesic—Unit 1, Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Maui—Lowland Wet—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Wet—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Mesic—Unit 1, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, and Maui—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Wet—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Mesic—Unit 1, Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Wet—Unit 6, Maui—Montane Wet—Unit 7, and Maui—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Wet—Unit 6, and Maui—Montane Wet—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, Maui—Montane Mesic—Unit 5, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Montane Mesic--Unit 2, Maui--Montane Mesic--Unit 3, Maui--Montane Mesic--Unit 4, and Maui--Montane Mesic--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui--Wet Cliff--Unit 6, Maui--Wet Cliff--Unit 7, and Maui--Wet Cliff--Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui--Lowland Wet--Unit 1, Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui--Lowland Wet--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Lowland Wet--Unit 1, Maui—Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, Maui--Montane Wet--Unit 5, and Maui--Montane Mesic--Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui--Lowland Wet--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Lowland Dry--Unit 5, Maui--Lowland Dry--Unit 6, and Maui--Montane Mesic--Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Lowland Dry--Unit 5 and Maui--Lowland Dry--Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Subalpine--Unit 1, Maui--Subalpine--Unit 2, Maui--Dry Cliff--Unit 1, Maui--Dry Cliff--Unit 2, Maui--Dry Cliff--Unit 3, and Maui--Dry Cliff--Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Subalpine--Unit 1 and Maui--Subalpine--Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In units Maui--Dry Cliff--Unit 1, Maui--Dry Cliff--Unit 2, Maui--Dry Cliff--Unit 3, and Maui--Dry Cliff--Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui--Lowland Dry--Unit 5 and Maui--Lowland Dry--Unit 6, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui--Lowland Dry--Unit 1, Maui--Lowland Dry--Unit 2, Maui--Lowland Dry--Unit 3, Maui--Lowland Dry--Unit 4, Maui--Dry Cliff--Unit 5, Maui--Dry Cliff--Unit 6, Maui--Wet Cliff--
(i) In units Maui--Lowland Dry--Unit 1, Maui--Lowland Dry--Unit 2, Maui--Lowland Dry--Unit 3, and Maui--Lowland Dry--Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Dry Cliff--Unit 5 and Maui--Dry Cliff--Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(iii) In units Maui--Wet Cliff--Unit 6, Maui--Wet Cliff--Unit 7, and Maui--Wet Cliff--Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui--Coastal--Unit 1, Maui--Coastal--Unit 2, Maui--Coastal--Unit 3, Maui--Coastal--Unit 4, Maui--Coastal--Unit 5, Maui--Coastal--Unit 6, Maui--Coastal--Unit 7, and Maui--Coastal--Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui--Lowland Dry--Unit 1, Maui--Lowland Dry--Unit 2, Maui--Lowland Dry--Unit 3, and Maui--Lowland Dry—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui--Lowland Dry--Unit 1, Maui--Lowland Dry--Unit 2, Maui--Lowland Dry--Unit 3, and Maui--Lowland Dry—Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Kahoolawe--Coastal--Unit 1, Kahoolawe--Coastal--Unit 2, Kahoolawe--Coastal--Unit 3, Kahoolawe--Lowland Dry--Unit 1, and Kahoolawe--Lowland Dry--Unit 2, identified in the legal descriptions in paragraph (e)(2) of this section, constitute critical habitat for
(i) In units Kahoolawe--Coastal--Unit 1, Kahoolawe--Coastal--Unit 2, and Kahoolawe--Coastal--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Kahoolawe--Lowland Dry--Unit 1 and Kahoolawe--Lowland Dry--Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui--Lowland Wet--Unit 1, identified in the legal descriptions in
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui--Coastal--Unit 9, Maui--Coastal--Unit 10, Maui--Coastal--Unit 11, Kahoolawe--Coastal--Unit 1, Kahoolawe--Coastal--Unit 2, Kahoolawe-Coastal--Unit 3, Maui--Lowland Dry--Unit 1, Maui--Lowland Dry--Unit 2, Maui--Lowland Dry--Unit 3, Maui--Lowland Dry--Unit 4, Maui--Lowland Dry--Unit 5, Maui--Lowland Dry-Unit 6, Kahoolawe--Lowland Dry-Unit 1, and Kahoolawe-Lowland Dry--Unit 2, identified in the legal descriptions in paragraphs (e)(1) and (e)(2) of this section, constitute critical habitat for
(i) In units Maui--Coastal--Unit 9, Maui--Coastal-Unit 10, Maui--Coastal--Unit 11, Kahoolawe--Coastal--Unit 1, Kahoolawe--Coastal--Unit 2, and Kahoolawe--Coastal--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Lowland Dry--Unit 1, Maui--Lowland Dry--Unit 2, Maui--Lowland Dry--Unit 3, Maui--Lowland Dry--Unit 4, Maui--Lowland Dry--Unit 5, Maui--Lowland Dry--Unit 6, Kahoolawe--Lowland Dry--Unit 1, and Kahoolawe--Lowland Dry--Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui--Coastal--Unit 1, Maui--Coastal--Unit 2, Maui--Coastal--Unit 3, Maui--Coastal--Unit 4, Maui--Coastal--Unit 5, Maui--Coastal--Unit 6, Maui--Coastal--Unit 7, Maui--Coastal--Unit 8, Kahoolawe--Coastal--Unit 1, Kahoolawe--Coastal--Unit 2, Kahoolawe--Coastal--Unit 3, Kahoolawe--Lowland Dry--Unit 1, and Kahoolawe--Lowland Dry--Unit 2, identified in the legal descriptions in paragraphs (e)(1) and (e)(2) of this section, constitute critical habitat for
(i) In units Maui--Coastal--Unit 1, Maui--Coastal--Unit 2, Maui--Coastal--Unit 3, Maui--Coastal--Unit 4, Maui--Coastal--Unit 5, Maui--Coastal--Unit 6, Maui--Coastal--Unit 7, Maui--Coastal--Unit 8, Kahoolawe-Coastal-Unit 1, Kahoolawe-Coastal-Unit 2, and Kahoolawe-Coastal-Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 980 ft (300 m).
(B) Annual precipitation: Less than 20 in (50 cm).
(C) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Kahoolawe--Lowland Dry--Unit 1 and Kahoolawe--Lowland Dry--Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui--Coastal--Unit 9, Maui--Coastal--Unit 10, and Maui--Coastal--Unit 11, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui--Montane Mesic--Unit 1, Maui--Montane Dry--Unit 1, Maui--Subalpine--Unit 1, and Maui--Subalpine--Unit 2, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In unit Maui--Montane Dry--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Dry cinder or ash soils, loamy volcanic sands, blocky lava, rock outcroppings.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui--Subalpine--Unit 1 and Maui--Subalpine--Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Montane Wet--Unit 1, Maui—Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui--Montane Wet--Unit 6, Maui—Montane Wet--Unit 7, Maui--Montane Mesic--Unit 2, Maui--Montane Mesic--Unit 3, Maui--Montane Mesic--Unit 4, and Maui--Montane Mesic--Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Montane Wet--Unit 6 and Maui--Montane Wet--Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In units Maui--Montane Mesic--Unit 2, Maui--Montane Mesic--Unit 3, Maui--Montane Mesic--Unit 4, and Maui--Montane Mesic--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Montane Wet—Unit 1, Maui—Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, Maui--Montane Wet--Unit 5, Maui--Montane Mesic--Unit 1, Maui--Subalpine--Unit 1, Maui--Subalpine--Unit 2, Maui--Dry Cliff--Unit 1, Maui--Dry Cliff--Unit 2, Maui--Dry Cliff—Unit 3, and Maui--Dry Cliff--Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui--Subalpine--Unit 1 and Maui--Subalpine--Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Maui--Dry Cliff--Unit 1, Maui--Dry Cliff--Unit 2, Maui--Dry Cliff--Unit 3, and Maui--Dry Cliff--Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
Maui--Montane Wet--Unit 1, Maui—Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, Maui--Montane Wet--Unit 5, and Maui--Montane Mesic--Unit 1, identified in the legal descriptions in
(i) In units Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Lowland Wet--Unit 2, Maui—Lowland Wet--Unit 3, Maui--Lowland Wet--Unit 4, Maui--Lowland Wet--Unit 5, Maui--Lowland Wet--Unit 6, Maui--Lowland Wet--Unit 7, Maui--Lowland Wet--Unit 8, Maui--Wet Cliff--Unit 6, Maui--Wet Cliff--Unit 7, and Maui--Wet Cliff--Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Lowland Wet--Unit 2, Maui--Lowland Wet--Unit 3, Maui--Lowland Wet--Unit 4, Maui--Lowland Wet--Unit 5, Maui--Lowland Wet--Unit 6, Maui--Lowland Wet--Unit 7, and Maui--Lowland Wet--Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Wet Cliff--Unit 6, Maui--Wet Cliff--Unit 7, and Maui--Wet Cliff--Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui--Lowland Wet--Unit 2, Maui—Lowland Wet--Unit 3, Maui--Lowland Wet--Unit 4, Maui--Lowland Wet--Unit 5, Maui--Lowland Wet--Unit 6, Maui--Lowland Wet--Unit 7, Maui--Lowland Wet--Unit 8, Maui--Wet Cliff--Unit 6, Maui--Wet Cliff--Unit 7, and Maui--Wet Cliff--Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Lowland Wet--Unit 2, Maui--Lowland Wet--Unit 3, Maui--Lowland Wet--Unit 4, Maui--Lowland Wet--Unit 5, Maui--Lowland Wet--Unit 6, Maui--Lowland Wet--Unit 7, and Maui--Lowland Wet--Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Wet Cliff--Unit 6, Maui--Wet Cliff--Unit 7, and Maui--Wet Cliff--Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui--Montane Wet--Unit 6, Maui—Montane Wet--Unit 7, and Maui--Montane Mesic--Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Montane Wet--Unit 6 and Maui--Montane Wet--Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Lowland Wet--Unit 2, Maui—Lowland Wet--Unit 3, Maui--Lowland Wet--Unit 4, Maui--Lowland Wet--Unit 5, Maui--Lowland Wet--Unit 6, Maui--Lowland Wet--Unit 7, Maui--Lowland Wet--Unit 8, Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, Maui--Montane Wet--Unit 5, Maui--Montane Wet--Unit 6, Maui--Montane Wet---Unit 7, Maui--Montane Mesic—Unit 1, Maui--Subalpine--Unit 1, Maui--Subalpine--Unit 2, Maui--Wet Cliff--Unit 1, Maui--Wet Cliff--Unit 2, Maui--Wet Cliff--Unit 3, and Maui--Wet Cliff--Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Lowland Wet--Unit 2, Maui--Lowland Wet--Unit 3, Maui--Lowland Wet--Unit 4, Maui--Lowland Wet--Unit 5, Maui--Lowland Wet--Unit 6, Maui--Lowland Wet--Unit 7, and Maui--Lowland Wet--Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, Maui--Montane Wet--Unit 5, Maui--Montane Wet--Unit 6, and Maui--Montane Wet--Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Maui--Subalpine--Unit 1 and Maui--Subalpine--Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units Maui--Wet Cliff--Unit 1, Maui--Wet Cliff--Unit 2, Maui--Wet Cliff--Unit 3, and Maui--Wet Cliff--Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui--Lowland Wet--Unit 1, Maui—Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, Maui--Montane Wet--Unit 5, Maui--Wet Cliff--Unit 1, Maui--Wet Cliff--Unit 2, Maui--Wet Cliff--Unit 3, and Maui--Wet Cliff--Unit 4, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui--Lowland Wet--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui--Wet Cliff--Unit 1, Maui--Wet Cliff--Unit 2, Maui--Wet Cliff--Unit 3, and Maui--Wet Cliff--Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui--Montane Wet--Unit 1, Maui—Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, Maui--Montane Wet--Unit 5, and Maui--Montane Mesic--Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui--Montane Wet--Unit 1, Maui--Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In unit Maui--Montane Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui--Montane Wet--Unit 1, Maui—Montane Wet--Unit 2, Maui--Montane Wet--Unit 3, Maui--Montane Wet--Unit 4, and Maui--Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui--Montane Mesic--Unit 2, Maui—Montane Mesic--Unit 3, Maui--Montane Mesic--Unit 4, and Maui--Montane Mesic--Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: 50 to 75 in (130 to 190 cm).
(iii) Substrate: Deep ash deposits, thin silty loams.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Kahoolawe—Lowland Dry—Unit 1, and Kahoolawe—Lowland Dry—Unit 2, identified in the legal descriptions in paragraphs (e)(1) and (e)(2) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Montane Wet—Unit 6 and Maui—Montane Wet—Unit 7, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Wet—Unit 6, Maui—Montane Wet—Unit 7, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Wet—Unit 6, and Maui—Montane Wet—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, Maui—Dry Cliff—Unit 4, Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, Maui—Wet Cliff—Unit 4, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, and Maui—Dry Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, Maui—Wet Cliff—Unit 4, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Montane Wet—Unit 6 and Maui—Montane Wet—Unit 7, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, and Maui—Lowland Dry—Unit 6, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Coastal—Unit 1, Maui—Coastal—Unit 2, Maui—Coastal—Unit 3, Maui—Coastal—Unit 4, Maui—Coastal—Unit 5, Maui—Coastal—Unit 6, Maui—Coastal—Unit 7, and Maui—Coastal—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 980 ft (300 m).
(ii) Annual precipitation: Less than 20 in (50 cm).
(iii) Substrate: Well-drained, calcareous, talus slopes; dunes; weathered clay soils; ephemeral pools; mudflats.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, Maui—Montane Mesic—Unit 5, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, and Maui—Montane Mesic—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff-Unit 7, and Maui-Wet
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Mesic—Unit 2, and Maui—Lowland Mesic—Unit 3, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Mesic—Unit 2 and Maui—Lowland Mesic—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Kahoolawe—Lowland Dry—Unit 1, and Kahoolawe—Lowland Dry—Unit 2, identified in the legal descriptions in paragraphs (e)(1) and (e)(2) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Unrestricted.
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(iv) Canopy: None.
(v) Subcanopy:
(vi) Understory: Bryophytes, ferns,
Maui—Montane Wet—Unit 6 and Maui—Montane Wet—Unit 7, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: Less than 3,300 ft (1,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(iii) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Dry Cliff—Unit 5, Maui—Dry Cliff—Unit 6, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Dry Cliff—Unit 5 and Maui—Dry Cliff—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 1 and Maui—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Dry—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m), but greater than 3,200 ft (914 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Wet—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Montane Dry—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitutes critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Less than 50 in (130 cm).
(ii) Substrate: Dry cinder or ash soils, loamy volcanic sands, blocky lava, rock outcroppings.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory:
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, and Maui—Montane Dry—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Maui—Montane Dry—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Dry cinder or ash soils, loamy volcanic sands, blocky lava, rock outcroppings.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui—Lowland Wet—Unit 1, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, identified in
(i) In unit Maui—Lowland Wet—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui—Wet Cliff—Unit 1, Maui—Wet Cliff—Unit 2, Maui—Wet Cliff—Unit 3, and Maui—Wet Cliff—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Mesic—Unit 2, Maui—Lowland Mesic—Unit 3, Maui—Montane Mesic—Unit 1, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, Maui—Montane Mesic—Unit 5, Maui—Montane Dry—Unit 1, Maui—Subalpine—Unit 1, and Maui—Subalpine—Unit 2, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Mesic—Unit 2 and Maui—Lowland Mesic—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Montane Mesic—Unit 1, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, and Maui—Montane Mesic—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In unit Maui—Montane Dry—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Dry cinder or ash soils, loamy volcanic sands, blocky lava, rock outcroppings.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(v) In units Maui—Subalpine—Unit 1 and Maui—Subalpine—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Lowland Mesic—Unit 2, Maui—Lowland Mesic—Unit 3, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Mesic—Unit 1, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, Maui—Montane Mesic—Unit 5, Maui—Montane Dry—Unit 1, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Mesic—Unit 2 and Maui—Lowland Mesic—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iv) In units Maui—Montane Mesic—Unit 1, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, and Maui—Montane Mesic—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In unit Maui—Montane Dry—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Dry cinder or ash soils, loamy volcanic sands, blocky lava, rock outcroppings.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(vi) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Mesic—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Mesic—Unit 1, Maui—Montane Dry—Unit 1, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1 and Maui—Lowland Dry—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Maui—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(iii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iv) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In unit Maui—Montane Dry—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Dry cinder or ash soils, loamy volcanic sands, blocky lava, rock outcroppings.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(vi) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, and Maui—Lowland Mesic—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, and Maui—Lowland Dry—Unit 4, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Maui--Lowland Mesic--Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, and Maui—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Kahoolawe—Lowland Dry—Unit 1, Kahoolawe—Lowland Dry—Unit 2, Maui—Montane Mesic—Unit 1, Maui—Dry Cliff—Unit 5, and Maui—Dry Cliff—Unit 6, identified in the legal descriptions in paragraphs (e)(1) and (e)(2) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Kahoolawe—Lowland Dry—Unit 1, and Kahoolawe—Lowland Dry—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui--Dry Cliff--Unit 5 and Maui--Dry Cliff--Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Dry Cliff—Unit 5, Maui—Dry Cliff—Unit 6, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Dry Cliff—Unit 5 and Maui—Dry Cliff—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
(2)
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Lowland Mesic—Unit 2, Maui—Lowland Mesic—Unit 3, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, and Maui—Montane Mesic—Unit 1, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 5 and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui--Lowland Mesic--Unit 2 and Maui--Lowland Mesic--Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iv) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Mesic—Unit 1, Maui—Subalpine—Unit 1, and Maui—Subalpine—Unit 2, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(ii) In unit Maui—Montane Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui—Subalpine—Unit 1 and Maui—Subalpine—Unit 2, the physical and biological features of critical habitat are:
(A) Elevation: 6,500 to 9,800 ft (2,000 to 3,000 m).
(B) Annual precipitation: 15 to 40 in (38 to 100 cm).
(C) Substrate: Dry ash; sandy loam; rocky, undeveloped soils; weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, Maui—Lowland Dry—Unit 6, Maui—Lowland Mesic—Unit 1, Maui—Lowland Mesic—Unit 2, Maui—Lowland Mesic—Unit 3, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, Maui—Montane Mesic—Unit 5, Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Dry—Unit 1, Maui—Lowland Dry—Unit 2, Maui—Lowland Dry—Unit 3, Maui—Lowland Dry—Unit 4, Maui—Lowland Dry—Unit 5, and Maui—Lowland Dry—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Less than 50 in (130 cm).
(C) Substrate: Weathered silty loams to stony clay, rocky ledges, little-weathered lava.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Mesic—Unit 1, Maui—Lowland Mesic—Unit 2, and Maui—Lowland Mesic—Unit 3, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iv) In units Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, and Maui—Montane Mesic—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(v) In units Maui—Wet Cliff—Unit 6, Maui—Wet Cliff—Unit 7, and Maui—Wet Cliff—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, shallow soils, weathered lava.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory: Bryophytes, ferns,
Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Mesic—Unit 1, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, Maui—Montane Mesic—Unit 5, Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, Maui—Dry Cliff—Unit 4, Maui—Dry Cliff—Unit 5, and Maui—Dry Cliff—Unit 6, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In units Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iii) In units Maui—Montane Mesic—Unit 1, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, and Maui—Montane Mesic—Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Maui—Dry Cliff—Unit 1, Maui—Dry Cliff—Unit 2, Maui—Dry Cliff—Unit 3, Maui—Dry Cliff—Unit 4, Maui—Dry Cliff—Unit 5, and Maui—Dry Cliff—Unit 6, the physical and biological features of critical habitat are:
(A) Elevation: Unrestricted.
(B) Annual precipitation: Less than 75 in (190 cm).
(C) Substrate: Greater than 65 degree slope, rocky talus.
(D) Canopy: None.
(E) Subcanopy:
(F) Understory:
Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, and Maui—Montane Wet—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(ii) Annual precipitation: Greater than 75 in (190 cm).
(iii) Substrate: Well-developed soils, montane bogs.
(iv) Canopy:
(v) Subcanopy:
(vi) Understory: Ferns,
Maui—Lowland Mesic—Unit 1, Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, Maui—Lowland Wet—Unit 8, Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Wet—Unit 6, Maui—Montane Wet—Unit 7, Maui—Montane Mesic—Unit 1, Maui—Montane Mesic—Unit 2, Maui—Montane Mesic—Unit 3, Maui—Montane Mesic—Unit 4, and Maui—Montane Mesic—Unit 5, identified in the legal descriptions in paragraph (e)(1) of this section, constitute critical habitat for
(i) In unit Maui—Lowland Mesic—Unit 1, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Shallow soils, little to no herbaceous layer.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(ii) In units Maui—Lowland Wet—Unit 1, Maui—Lowland Wet—Unit 2, Maui—Lowland Wet—Unit 3, Maui—Lowland Wet—Unit 4, Maui—Lowland Wet—Unit 5, Maui—Lowland Wet—Unit 6, Maui—Lowland Wet—Unit 7, and Maui—Lowland Wet—Unit 8, the physical and biological features of critical habitat are:
(A) Elevation: Less than 3,300 ft (1,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Clays; ashbeds; deep, well-drained soils; lowland bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory:
(iii) In units Maui—Montane Wet—Unit 1, Maui—Montane Wet—Unit 2, Maui—Montane Wet—Unit 3, Maui—Montane Wet—Unit 4, Maui—Montane Wet—Unit 5, Maui—Montane Wet—Unit 6, and Maui—Montane Wet—Unit 7, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: Greater than 75 in (190 cm).
(C) Substrate: Well-developed soils, montane bogs.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(iv) In units Maui--Montane Mesic-Unit 1, Maui--Montane Mesic--Unit 2, Maui--Montane Mesic--Unit 3, Maui—Montane Mesic--Unit 4, and Maui--Montane Mesic--Unit 5, the physical and biological features of critical habitat are:
(A) Elevation: 3,300 to 6,500 ft (1,000 to 2,000 m).
(B) Annual precipitation: 50 to 75 in (130 to 190 cm).
(C) Substrate: Deep ash deposits, thin silty loams.
(D) Canopy:
(E) Subcanopy:
(F) Understory: Ferns,
(k) * * *
(62) * * *
(ii)
(65) * * *
(ii)
(70) * * *
(ii)
(77) * * *
(ii)
Bureau of Ocean Energy Management (BOEM), Interior.
Final rule.
This final rule updates and streamlines the existing Outer Continental Shelf (OCS) leasing regulations and clarifies implementation of the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996, which amended the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA). The final rule reorganizes leasing requirements to more effectively communicate the leasing process as it has evolved over the years. The final rule makes changes to regulations which relate to the oil, gas, and sulfur leasing requirements. The final rule does not, however, include substantive changes to regulations which relate to bonding, which will be the subject of a separate new proposed rulemaking.
This final rule will become effective May 31, 2016.
Peter Meffert, Senior Regulatory Specialist, Office of Policy, Regulations and Analysis, Bureau of Ocean Energy Management, at
On May 27, 2009, the Minerals Management Service (MMS) published a proposed rule (Notice of Proposed Rulemaking or NPRM) in the
This final rule reorganizes and reorders the parts of the BOEM regulations concerning leasing, adds new sections to standardize or clarify practices in all three BOEM OCS regional offices, and eliminates redundant or otherwise unnecessary text. The final rule also includes regulatory provisions which, during the division of BOEMRE, were inadvertently assigned to an agency other than BOEM, but have proven necessary for BOEM's use and are therefore added back into these regulations. (In this Preamble, the BOEMRE regulations, as they existed before BOEMRE was divided into BOEM, BSEE, and ONRR, are sometimes referred to as the “pre-split regulations.”)
Additionally, this final rule also updates and clarifies processes required by legislation enacted since BOEM's regulations were last amended, such as those required by the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996, which amended FOGRMA, or by more recently promulgated regulations, such as the Department of the Interior's (Department or DOI) non-procurement debarment rules. The final rule also includes changes that will assist BOEM in meeting its stewardship responsibilities and performing its role as a responsible regulator.
This final rule revises sections of the regulations at 30 CFR parts 550, “Oil and Gas and Sulfur Operations in the Outer Continental Shelf,” 556, “Leasing
The changes made in part 550, “Oil and Gas and Sulfur Operations in the Outer Continental Shelf” and those made in part 560, “Outer Continental Shelf Oil and Gas Leasing,” relate primarily to simplifying and clarifying the regulatory language, as well as creating new, and re-establishing pre-split, regulations that had been inadvertently deleted when the former BOEMRE was divided into three new agencies. For example, in October 2010 (as part of the direct final rule RIN 1010-AD70,
Most of the final rule consists of revisions to part 556. Part 556 includes regulations pertaining to: (1) The oil and gas leasing program; (2) preparing for a lease sale; (3) issuing, maintaining, transferring, and terminating a lease; and (4) bonding requirements. As explained in greater detail below, the final rule addresses the first three components, but the fourth component, bonding, is not addressed in this final rule, except to make minor editorial and conforming changes. Bonding and financial assurance will be further addressed in future rulemakings.
The following are abbreviations of terms used in the preamble:
On May 27, 2009, BOEM published a proposed rule entitled, “Leasing of Sulphur or Oil and Gas and Bonding Requirements in the Outer Continental Shelf” (74 FR 25177). In the six years since the proposed regulation was published, several developments have brought about the need for the final rule to appear different from the proposed rulemaking. The organization of the final rule is structured differently from that of the proposed rule to make the regulations easier for the public to read and follow. The major reasons for the other differences between the proposed rule and the final rule are explained below:
BOEM received a total of eight comments from the American Petroleum Institute (API), Shell Oil Company, Chevron Oil Company, Anglo Suisse, Dynamic Offshore Resources, RLI Insurance Company, and two citizens, who commented to show their support of OCS leasing and the oil and gas program. Each comment was considered and some resulted in changes to the proposed rule. BOEM's responses are addressed in this Preamble.
All comments can be viewed at
On May 19, 2010, the Secretary signed Secretarial Order 3299 directing the split of MMS into three new bureaus, BOEM, BSEE, and ONRR. This split was accomplished in two phases. In 2010 MMS was split into two agencies, ONRR and BOEMRE. In 2011 BOEMRE was itself split into two agencies, BOEM and BSEE.
Prior to October 4, 2010, the regulations of BOEM, BSEE, and ONRR were contained in one set of regulations (“pre-split” regulations), which were issued by the MMS. On October 4, 2010, MMS published a final rule in the
As time has passed, it has come to light that some regulations were incorrectly assigned during the split. For example, some of the regulatory provisions assigned to BSEE or ONRR have proven necessary for BOEM. Regulatory provisions that fall into this category have been included in the final rulemaking, as explained in this Preamble. Because of the reorganization of the former MMS, some provisions of the proposed rule are now outside the scope of BOEM's responsibilities and are not included in this final rule.
In addition, there are some regulatory provisions that appear in this final rulemaking that did not appear in the proposed rule. These regulatory provisions are not “substantively new,” however. They appeared in the former MMS regulations. The Final Rule also differs from the Proposed Rule in that the Final Rule retains certain provisions that the Proposed Rule suggested deleting. Instances of retention of prior sections of the regulations are also discussed in this Preamble.
There are some wholly administrative changes from the proposed rule that appear in the final rule. These changes were also primarily necessitated by the division of MMS into three separate agencies. For example, the BOEM regulations are now found in a different chapter of Title 30 of the Code of Federal Regulations (CFR) than the chapter in which the BOEMRE regulations were found. Before the BOEMRE regulations were divided into two sets of independent agency regulations, they were all contained in Chapter II of Title 30 of the CFR, within parts 203 through 291. This means that the first digit in the section number of each individual provision was a “2.” After the division of the regulations, all BSEE regulations remained in Chapter II, and thus retained the first digit “2.” And, because the proposed rule was published before the agency split, its provisions also begin with a “2.” After the division, however, the BOEM regulations were moved into Chapter V. Thus, although the proposed rule provisions each began with a “2,” all final BOEM rule provisions begin with a “5.” Also, in the final rule, internal citations to section numbers were changed to maintain correct and consistent cross-references, and sections were re-numbered to maintain internal numerical order. Whenever appropriate, references to “MMS” from the proposed rule have been changed to “BOEM” in the final rule. These administrative changes have no effect on the substance of the regulations, and therefore do not require notice and comment, but they do make the regulations clearer, more consistent, and easier to use.
The proposed rule would have added a new “expenses . . . with supporting documentation” reporting requirement to the then-BOEMRE, now-BSEE regulatory sections 250.1717, 250.1729, and 250.1743. Section 250.1717 addresses the information that must be submitted after well plugging and abandonment. Section 250.1729 addresses the information that must be submitted after removal of a platform or other facility, and section 250.1743 addresses the information that must be submitted after site clearance. The proposed rule added new requirements concerning the submittal of information on the costs of decommissioning.
When BOEMRE was divided into two agencies, the operational aspects of decommissioning were placed within BSEE's rather than BOEM's purview. In the final rulemaking, therefore, BOEM decided to remove the three provisions proposing revisions to sections 250.1717, 250.1729, and 250.1743, as BSEE finalized the rule addressing the submittal of information on the costs of decommissioning in their rule entitled “Oil and Gas and Sulphur Operations in the Outer Continental Shelf; Decommissioning Costs,” RIN 1014-AA24, published in the
The other proposed provision that was removed from the final rule was proposed rule section 256.621, concerning the submission of reports about lease term pipelines when requesting BOEM's approval of a lease assignment. As with decommissioning, BSEE has been tasked with the administration of the operational aspects of pipelines on the OCS; therefore, the submission of reports on lease term pipelines is within BSEE's jurisdiction. BSEE has proposed to address the submission of reports concerning lease term pipelines in a rule entitled “Pipelines and Pipeline Right-of-Way Safety,” RIN 1014-AA27.
Several definitions have been added in the final rulemaking that did not appear in the proposed rulemaking to clarify the meaning of terms used in the regulations. In each case, the term either was defined in the BOEMRE regulations or its definition is apparent from the context of the prior regulatory language.
The proposed rule included a subpart E, “Financial Accountability and Risk Management,” which contained provisions addressing requirements for general and additional bonding, surety, and third-party indemnity. After the proposed rule was published, BOEM identified possible conflicts between the proposed rule's use/definitions of certain terms and their use/definitions within BOEM's oil spill financial responsibility regulations (30 CFR part 553). Also, after publication of the proposed rule, BOEM began a process of reassessing its bonding and financial assurance policies, leading to a decision to publish this final rule with the text of existing subpart I (Bonding), with only limited conforming changes. This decision will enable BOEM and the regulated public to continue to rely on the existing financial assurance regulations until BOEM is ready to make necessary changes to its policies and to propose and seek comment on separate new regulations specific to bonding and financial assurance to implement these new policies.
A consistent change that was made in the final rule was to add, where appropriate, the word “final” before the phrase “notice of sale.” Another change is eliminating any references to “Associate Director,” since there are no longer any Associate Directors in BOEM. The word “sulphur” has been replaced with a more contemporary spelling of “sulfur.” All cross-references and section numbers within this final rule have been updated.
The following derivation tables describe the source(s) of the regulations in the final rule relative to those in the prior regulations and/or those in the proposed rule. These tables are intended only to provide cross-references to the other materials. The section-by-section analysis that follows these derivation tables provides a detailed explanation of the changes made with this final rule.
Most sections of the final rule reflect content from the proposed rule, however, in some cases, the organization of the regulations and the final section numbers have changed since the rule was proposed. The derivation tables compare the location of the various rule sections in the final rule to the prior section numbers in the prior regulations that have been modified and the corresponding section numbers from the proposed rule, if appropriate.
Section 550.120. What standards will BOEM use to regulate leases, rights-of-use and easement, and rights-of-way? This section provides that BOEM will regulate activities under a lease, right-of-use and easement, or right-of-way, to promote the orderly exploration, development, and production of mineral resources, while preventing waste, protecting the environment and ensuring cooperation with other government agencies. Final rule section 550.120 did not appear in the proposed rule, but it was in the pre-split regulations, at 30 CFR 250.106. When BOEMRE was split into two agencies, this regulation was assigned to BSEE, and it therefore still appears at 30 CFR 250.106. As time has passed, however, BOEM has found itself hampered in properly evaluating and approving certain types of plans (such as exploration plans (EPs), development and production plans (DPPs), or development operations coordination documents (DOCDs)) without this provision in its regulations. This section has therefore been put into the final rule with minor word changes.
Section 550.121. What must I do to protect health, safety, property, and the environment? This section provides that, when economically feasible, BOEM may require additional measures to ensure the use of Best Available and Safest Technology (BAST) as identified by BSEE, to avoid the failure of equipment that would have a significant effect on safety, health, or the environment. Final rule section 550.121 did not appear in the proposed rule, but it was in the pre-split regulations, at 30 CFR 250.107 and tracks section 21(b) of OCSLA. When BOEMRE was split into two agencies, this regulation was assigned to BSEE, and it therefore still appears at 30 CFR 250.107. As time has passed, however, BOEM has found itself hampered in properly evaluating and approving certain types of plans (
Section 550.197(b)(5). Data and information to be made available to the public or for limited inspection. This section provides that BOEM will generally release geological data and analyzed geological information two years after the required submittal date for such information or 60 days after a lease sale. This final rule provision did not appear in the proposed rule, but did appear in the pre-split regulations at section 250.197(b)(5) (now BOEM regulation 550.197(b)(5)). However, the prior section, 550.197(b)(5), states “[i]f the primary term specified in the lease is extended under the heading of `Suspensions' under this subpart, the extension applies to this provision.” Since the agency split, the determination whether to grant a suspension is made by BSEE. Because BOEM does not make these determinations, “suspensions” are no longer addressed in this subpart. Accordingly, the text in this final rulemaking changes the statement to say: “[i]f the primary term specified in the lease is extended, the extension applies to this provision,” removing the
Section 550.197(c). Data and information to be made available to the public or for limited inspection. This section provides that BOEM may allow limited data and information inspection, but only by a person with a direct interest in related BOEM decisions and issues in a specific geographic area, and who agrees in writing to maintain the confidentiality of geological and geophysical (G&G) data and information submitted under this part. Similar to the last-discussed provision, this section did not appear in the proposed rulemaking, but it did appear in the pre-split regulations, at 250.197(c) (now BOEM regulation 550.197(c)). The provision in the final rulemaking changes “MMS” to “BOEM” and deletes a reference to “part 203,” which no longer exists in the regulations at Title 30. The pre-split regulation listed several activities done by MMS. Only the part of that list that is pertinent to BOEM is retained in this final rule section.
Section 550.197(d). Data and information to be made available to the public or for limited inspection. This section provides, in accordance with section 26 of OCSLA, that no proprietary information received by BOEM will be transmitted to any affected State unless the lessee, or the permittee and all persons to whom such permittee has sold such information under promise of confidentiality, agree to such transmittal. The final rule includes this provision, which did not appear in the proposed rule, because section 26(c) of OCSLA requires a regulation providing for maintenance of the confidentiality of privileged or proprietary information received by BOEM. (43 U.S.C. 1352(c)).
This is a new subpart, which is being created as part of this rule.
Section 550.400. Leasing maps and diagrams. This section provides that any area of the OCS, that has been appropriately platted, may be leased for any mineral not included in an existing lease issued under the Act or meeting the requirements of subsection (a) of section 6 of the Act. This section was in the pre-split regulations at section 256.8 (now BOEM regulation 556.8), but was omitted in part from the proposed rule. The Derivation Table in the Preamble to the proposed rule said the language of 256.8 was “simplified” and placed in proposed rule section 256.202. Proposed rule section 256.202, however, is not sufficient to ensure that the substance of former 256.8 is retained in the regulations. After reviewing these provisions, BOEM has determined that the text of former section 256.8 (now 556.8) should be retained. Hence, it has been included in this final rulemaking as section 550.400, which retains the text from prior section 556.8 without any changes.
The Table of Contents for part 556 in the final rulemaking reflects a changed organization and structure from the proposed rule. After publication of the proposed rule, and after BOEMRE was divided into two agencies, BOEM analyzed the organization of part 556 and the way in which information was presented within the sections in the part, and decided to modify the organization of the part.
The first three subparts in the final rule (subpart A—General Provisions, subpart B—Oil and Gas Five Year Leasing Program, and subpart C—Planning and Holding a Lease Sale), contain the same information as the first three subparts in the proposed rule; the fourth subpart, Subpart D, however, includes more significant organizational changes. In the proposed rule, Subpart D—Issuance of a Lease, contained five subtitles within it: Qualifications, How to Bid, Restrictions on Joint Bidding, How Does MMS Act on Bids?, and Awarding the Lease. In the final rule, Subpart D includes only one subtitle: Qualifications. BOEM made this change in order to separate out the qualifications provisions and set them out in a clearer, more sequential manner. Subpart E in the final rule picks up the other four subtitles from the proposed rule's Subpart D.
In the proposed rule, Subpart E covered bonding and financial assurance. These topics are found in Subpart I in the final rule, but as previously noted, no substantive changes have been made to the provisions in this subpart in the final rule. Instead of adopting the proposed rule sections on these topics, BOEM will retain the prior bonding and financial assurance provisions—which, with minor editorial and conforming revisions, are found at final rule sections 556.900 through 556.907—until such time as a new rulemaking is proposed for these topics.
In the proposed rule, Subpart F was entitled, “Maintaining a Lease,” and it contained four subtitles: Initial Period of a Lease, Lease Obligations, Transferring Interest in All or Part of a Lease, and Helium. In the final rule, Subpart F contains three subtitles: Length of Lease, Lease Obligations, and Helium. These subtitles cover the same regulatory issues as Subpart F in the proposed rule, with the exception of the proposed rule's subtitle concerning transfers of interest. In the final rule, regulatory provisions concerning the transfer of a record title interest and those provisions concerning transfers of an operating rights interest have been split into two different Subparts—Subpart G and Subpart H, respectively.
The final rule's Subpart H was “Reserved” in the proposed rule. In the final rule, Subpart H includes provisions addressing the transfer of operating rights interests. As noted above, final rule Subpart I addresses BOEM's bonding and financial assurance requirements, which are substantively unchanged from the prior BOEM regulations. Provisions dealing with bonus or royalty credits in exchange for certain leases, found in final rule Subpart J, were found in proposed rule Subpart I. The final rule's Subpart K—Ending a Lease, was the proposed rule's Subpart G.
Finally, final rule Subpart L—Leases Maintained under Section 6 of OCSLA (43 U.S.C. 1335), and Subpart M—Environmental Studies, did not appear in the proposed rule. The Derivation Table in the Preamble to the proposed rule proposed to eliminate both subparts as unnecessary, but BOEM has re-thought this elimination, and has decided to retain them. We do so because, in the case of Subpart L, there are extant “Section 6 Leases,” and with respect to Subpart M, OCSLA section 20 requires that the Secretary perform environmental studies. (43 U.S.C. 1346).
Section 556.100. Statement of Policy. This section states that management of Outer Continental Shelf (OCS) resources is to be conducted in accordance with the findings, purposes, and policy directions provided by OCSLA. The corollary to final rule section 556.100 is prior BOEM regulation 556.2. Both sections set forth a general policy statement. The proposed rule did not contain a section setting forth a statement of policy. Although this section is new in the final rule, it is explanatory in nature and does not impose any new requirements on the public. Therefore, BOEM is including it in this final rule without prior public notice and comment.
Section 556.101. Purpose. The proposed rule contained a statement of
Section 556.102. Authority. In the final rule, BOEM decided to include a regulatory section setting forth the authority(ies) for the issuance of these regulations, which has been updated to reflect the amendments made to FOGRMA by the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996, (30 U.S.C. 1701 note). The proposed rule did not contain a regulatory section with a list of authorities, but did contain such a list at the end of the proposed rule's Table of Contents. The list needed to be updated since the publication of the proposed rule.
Section 556.103. Cross references. The proposed rule did not contain a section setting out cross-references. Current BOEM regulations section 556.7 lists pertinent cross-references, and BOEM decided to include a cross-reference section in the final rule. We did so because cross-references enable the reading public to more quickly find related regulations. Cross-references do not impose any new substantive requirements that require prior public notice and comment.
Section 556.104. Information collection and proprietary information. This section has two major provisions. The first provides the legal basis for BOEM's collection of information in connection with the administration of its OCS oil, gas and sulfur leasing program. The second provision describes how BOEM will handle and maintain proprietary information. Final rule section 556.104 contains the same information as the corresponding proposed rule section, section 256.100. Subsection (b) of the proposed rule provision addressed “proprietary information,” but it was unclear whether the subsection extended to all proprietary information, or only to such information received in response to a Call for Information and Nominations (“Call”). To rectify this situation, we drafted the final rule provision to address proprietary information generally, (section 556.104(b)), and separately, proprietary information received in response to a Call (section 556.104(c)).
Section 556.105. Definitions. This section provides definitions for key terms used throughout this part of the regulations. As explained further below, some of these definitions are retained from the preexisting regulations; others are identical to definitions included in the proposed rule; and finally, a few definitions are new to this final rule, but they define terms already used in the regulations.
The terms and phrases listed in the next paragraph have been retained from the regulations as they existed before BOEMRE was divided into two agencies, and therefore, as the regulations were constituted at the time of publication of the proposed rule.
The list of terms that have been retained from the pre-split regulations is as follows: Aliquot or Aliquot Part, Authorized officer, Average daily production, Barrel, Crude oil, Development block, Economic interest, Initial period, Lease term pipeline, Lessee, Natural gas, Operating rights, Operator, Outer Continental Shelf (OCS), Outer Continental Shelf Lands Act (OCSLA), Owned, Planning area, Regional Director, Regional Supervisor, Security, Single bid, Six-month bidding period, and Statement of production.
In the following cases, we moved definitions of terms from a substantive regulation to this definitions section, with no change to the meaning expressed.
The following terms were retained unchanged from the prior BOEM regulations, or remain as described in the proposed rule: Act, Affected State, Authorized Officer, Coastal Environment, Coastal Zone, Coastline, Desoto Canyon OPD, Destin Dome OPD, Human Environment, Marine Environment, Pensacola OPD. The term “person” was added to the regulations, utilizing the definition from the proposed rule.
The following definitions have been added in final rule section 556.105 to define terms or concepts already used in the regulations, the definitions of which were apparent from the context of the prior regulatory language: BSEE, crude oil, designated operator, economic interest, initial period, primary term, joint bid, lease, lease interest, lessee, natural gas, natural gas liquids, operating rights, operating rights owner, operating rights tract, operator, owned, planning area, primary term, regional director, regional supervisor, RUE, ROW, security, single bid, six month bid period, and statement of production. A few of these terms were updated, as follows:
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Section 556.106. Service fees. This section identifies various administrative fees that BOEM requires for various services. The language in the Service Fees section, 256.104(b), of the proposed rulemaking, “payment . . . must accompany . . . submission,” engendered comments as to whether the proposed rule would have required operators to send in checks with their submission(s). BOEM therefore changed the language of this provision in the final rule to reflect that evidence of payment of the required fee(s) via pay.gov must accompany document submission(s) or must be sent to the office identified by BOEM. The fees in this rule are being adjusted to reflect the Implicit Price Deflator change of 3.31 percent (inflation from 2011 through 2013). The fees were last adjusted for inflation through calendar year 2011 (78 FR 5836).
Section 556.107. Corporate Seal requirements. This section sets forth an alternative procedure, to avoid the use of a corporate seal, for those electronic document submissions for which a corporate seal is otherwise required by these regulations. BOEM's rules require the use of a corporate seal in several instances. The Federal Government is, however, moving rapidly toward an all-electronic filing and records retention system. Because of this, BOEM has added section 556.107 to the final rule, which permits document submitters to electronically file documents with BOEM using a secure electronic filing system without the use of corporate seals. The filer may choose to file a document electronically; electronic document submission is not required by the final rule.
In order to maintain the legal validity of documents filed electronically without corporate seals, BOEM is requiring that those entities who choose to so file provide BOEM with a one-time filing of a document containing the entity's corporate seal, signed by an authorized party, and stating that the entity's filings made through a secure electronic filing system will be legally binding.
Final rule section 556.107 also enables those who choose not to file documents electronically to forego repeated use of the corporate seal by filing a document similar to the document discussed in the last paragraph, which states that future non-electronic filings will be legally binding without the use of a corporate seal.
BOEM further recognizes that not all States issue corporate seals. Therefore, final rule section 556.107 contains a paragraph (c), which states that an entity from a non-corporate seal State may file a document with BOEM stating that its state of incorporation does not use corporate seals. This document must be signed by an authorized party and must state that submissions made by this corporation will be legally binding.
Final rule section 556.107 does not have a counterpart in the proposed rule, but notice and comment on this provision is unnecessary because the provision does not require that any member of the public do anything differently than was already required by the prior regulations. Section 556.107 will, however, reduce the burden on those who choose to use the options it provides by streamlining the document submission process for them. The provision is also in accord with the Federal-Government-wide effort to digitize government services.
Sections under this subpart detail the steps BOEM takes to develop the Five-Year Oil and Gas Leasing Program. The final rule provisions set forth, sequentially, the stages in the development of the Five Year program, and closely mirror those in the proposed rule.
Proposed rule section 256.206, “Does MMS offer blocks in a sale that is not on the 5-year program schedule?” appeared under this Subpart B in the proposed rule. In the final rule, this section was moved to the next subpart, Subpart C—Planning and Holding a Lease Sale, because the section is substantively concerned with holding a certain type of lease sale, not with the development of the Five Year program. BOEM believes this section is more appropriately placed within Subpart C.
Section 556.200. What is the Five Year leasing program? This section reiterates those key provisions of OCSLA that require the Secretary to prepare an oil and gas leasing program that consists of a five-year schedule of proposed lease sales. Final rule section 556.200(a) substantially repeats proposed rule section 256.200. BOEM received two comments on proposed rule section 256.200 (section 556.200 in the final rule) that part of the section repeated language from OCSLA, and was therefore “inconsistent with the streamlining that MMS has taken with the proposed regulations.” BOEM considered these comments, but decided to retain the statutory language as it is important to explain the goals of the Five Year program. BOEM received no other comments on this subpart.
Section 556.201. Does BOEM consider multiple uses of the OCS? Final rule section 556.201 reiterates the OCSLA requirement that BOEM consider multiple uses of the OCS in its development of the Five Year oil and gas leasing program. This approach derives from a requirement in Section 18 of OCSLA (43 U.S.C. 1344(a)(2)(D)) that the leasing program shall be prepared and maintained in a manner consistent with, among other things, “other uses of the sea and seabed, including fisheries, navigation, existing or proposed sea lanes, potential sites of deepwater ports, and other anticipated uses of the resources and space of the outer Continental Shelf.” Final rule section 556.201 emphasizes that BOEM gathers information about multiple uses of the OCS to assist the Secretary in making decisions on the Five Year program, pursuant to the provisions of 43 U.S.C. 1344. For this purpose, BOEM invites and considers suggestions from States and local governments, industry, and any other interested parties, primarily through public notice and comment procedures. BOEM also invites and considers suggestions from Federal agencies.
Section 256.201 from the proposed rule has been modified in the final rule. As originally worded, proposed rule section 256.201 might have been
Section 556.202. How does BOEM start the Five Year preparation process? This section sets forth the steps BOEM takes in initiating the Five Year program. Final rule section 556.202 substantively repeats proposed rule section 256.202, but the final rule changes the statement in the proposed rule that “[a]ny area properly included on the official 5-year diagrams and maps may be offered for lease for any mineral not already leased” by substituting the explanation that any “area not already leased for oil and gas may be offered for lease.” The statement in the proposed rule was inaccurate because the Five Year program applies only to the leasing of oil and gas.
Section 556.203. What does BOEM do before publishing a proposed Five Year program? This section provides that BOEM will invite comments from governors on a draft proposed program at least sixty days before it publishes a proposed Five Year program. Final rule section 556.203 repeats proposed rule section 256.203, with some minor wording changes.
Section 556.204. How do governments and citizens comment on a proposed Five Year program? This section states the procedures to be followed to obtain inter-governmental and citizens' comments on the proposed Five Year program. Final rule section 556.204 repeats proposed rule section 256.204.
Section 556.205. What does BOEM do before approving a proposed final Five Year program or a significant revision of a previously-approved Five Year program? This section provides that the Secretary must provide a copy of the proposed Five Year Program, or any significant revision thereto, to Congress and the President at least sixty days before approving it. Final rule section 556.205 is substantively the same as proposed rule section 256.205.
Sections in this subpart address the process leading up to a lease sale, the conduct of a lease sale, and the circumstances under which a lease sale that is not on the Five Year Program schedule may be held. Subpart C in the final rule generally tracks Subpart C in the proposed rule, with certain differences, described in the following paragraphs, which discuss final rule sections 556.300 through 556.309.
Section 556.300. What reports may BOEM and other Federal agencies prepare before a lease sale? This section provides that BOEM will prepare a report describing the general geology and potential mineral resources of the area under consideration. Although this final rule section did not appear in the proposed rule, it did appear in the prior BOEM regulations, at prior Subpart C—Reports from Federal Agencies, which consists of one section, 556.22, “General.” The Preamble to the proposed rule stated that the precursor to prior regulations section 556.22 (
Section 556.301. What is a Call for Information and Nominations? The formal lease sale process usually begins with BOEM's publication of a Call for Information and Nominations, sometimes referred to as the “Call.” The Call requests indications of interest from industry in the leasing of specific blocks, and requests comments on other relevant information that BOEM can use in developing a recommendation of leasing areas for the Secretary. This section outlines the process BOEM uses to collect information to inform its determination as to which areas should be made available for leasing.
Final rule section 556.301 is substantively identical to proposed rule section 256.300, except for the addition of an additional topic on which the Call will request comments. The prior regulations, at section 556.23(b), state that the Call “shall also request comments on areas which should receive special concern and analysis.” The proposed rule did not include “areas of special concern and analysis” as one of the topics on which the Call will request comments, but the Preamble to the proposed rule shed no light on why this topic was omitted, stating only that section 256.23 (now 556.23) was “[r]eorganized.” BOEM sees no reason to omit “areas of special concern and analysis” from the list of topics on which the Call will request comments, and so has retained it in the list of such topics stated in final rule section 556.301.
Section 556.302. What does BOEM do with the information from the Call? Using the information received in response to the Call and further analysis of environmental issues, resource potential, stated interest, potential use conflicts, and other relevant information, the Director will develop a recommendation of the area to be included in a lease sale. This recommendation is often termed the “Area Identification,” or “Area ID.” This section explains the process used to arrive at the Area ID.
BOEM received one comment on proposed rule section 256.301, on which final rule section 556.302 is based. The comment noted that the phrase “as soon as possible,” which appeared in the analogous prior regulation (section 556.26(c)), had been deleted by the proposed rule, resulting in the following statement in section 256.301(b) of the proposed rule: “[w]e inform the public of any additions or deletions from the area proposed for leasing in the 5-year program that result from the call process.” The commenter requested that the phrase be retained in the final rule because whether or not areas have been deleted from a sale area is of great importance to potential bidders that are preparing for lease sales. BOEM agrees with this comment and has re-inserted this phrase in final rule section 556.302(c).
Section 256.301 of the proposed rule addressed the Area ID stage of BOEM's lease sale preparation, but omitted several aspects that appeared in the prior BOEM regulations at section 556.26. There is no reason given in the proposed rule as to why certain aspects of this stage of the lease sale process were left out, except the statement that prior section 256.26 was “[r]eorganized.” Final rule section 556.302 contains the substance of proposed rule section 256.301, as well as several paragraphs from the prior section 556.26. Specifically, three aspects of prior section 556.26 were not in the proposed rule, but have been retained in section 556.302 of the final rule. First, subparagraph (a)(2) of final rule section 556.302 states that the Director may, on his or her own motion, include in his or her recommendation areas that were not indicated in response to a Call. (
Final rule section 556.302(d) states that the Director may, upon request, provide relative indications of interest in areas received in response to a Call. Paragraph (d) also addresses the potentially confidential nature of such indications of interest and indicates that BOEM will release this information in such a way so as not to compromise the competitive interest of any of the respondents to the Call. The language of this final rule paragraph was found in the prior regulations at section 556.10(d). The substance of this final rule paragraph 556.302(d) was found in the proposed rule at section 256.100(b)(1) and (2), but BOEM believes it is more appropriately placed in this final rule section, which addresses the treatment of information received in response to a Call.
Section 556.303. What does BOEM do if an area proposed for leasing is within three nautical miles of the seaward boundary of a coastal State? Final rule section 556.303 sets forth the information that BOEM will provide to a State when an area proposed for leasing lies within three nautical miles of the seaward boundary of that State. Section 556.303 is the same as proposed rule section 256.302, except that the final rule corrects the language of the provision to be consistent with OCSLA section 8(g) (43 U.S.C. 1337(g)) in its use of the term “nautical miles” instead of the proposed rule's “geographical miles.”
Section 556.304. How is a proposed notice of sale prepared? This section describes the process utilized to prepare a proposed notice of sale. Final rule section 556.304 retains all the substance of proposed rule section 256.303, but for clarity divides the proposed rule provision's one paragraph into multiple paragraphs. The final rule provision also has a new title because the proposed rule provision's text and its title—“What happens with an approved proposed notice of sale?”—appears to have addressed an already-approved notice of sale without explaining how the agency arrives at the approved notice. The final rule provision helps clarify this by retaining some of the paragraphs from the analogous section in the prior regulations, 556.29, which were left out of proposed rule provision 256.303, but which help to explain BOEM's procedures. The Preamble to the proposed rule stated that proposed rule provision 256.303 represented a “[s]implifi[cation]” of section 256.29 (now 556.29), but some steps were left out in the simplifying process, creating gaps in the regulations. These gaps have been eliminated with the retention of certain concepts from the prior regulations in final rule section 556.305.
Final rule section 556.305(a) states that the Director of BOEM may, in consultation with other Federal agencies, develop lease stipulations and conditions, which will appear or be referenced in the proposed notice of sale. Both the prior regulation section 556.29 and proposed rule section 256.303 contained similar language, but the proposed rule provision went further and stated that the proposed notice of sale also includes “the Director's findings, and all comments and recommendations received on the proposal.” While reviewing the proposed rule, BOEM realized that these last three items are not
BOEM received a comment requesting that the lease form be attached to or referenced in the proposed notice of lease sale because “the terms of an oil and gas lease sale are integral to the lessee/lessor relationship and lessees . . . should have the right to know the lease terms in advance of submitting bids.” BOEM agrees with this comment insofar as potential bidders should be aware of the lease terms and conditions, to the extent possible, in advance of the lease sale. To that end, final rule provision 556.304(c) makes clear that the proposed notice of sale references the lease form.
Section 556.305. How does BOEM coordinate and consult with States regarding a proposed notice of sale? This section outlines the process by which BOEM coordinates with affected States following the proposed notice of sale. Final rule section 556.305 is substantively the same as proposed rule section 256.304. One change was made to the language of the section in the final rule as a result of a comment. The comment requested that the section “actually reference” the Coastal Zone Management Act (CZMA) (16 U.S.C. 1451-1466) “so that if the CZMA is modified or amended or repealed, [BOEM] can continue to follow the process outlined in the act, rather than risking conflict or inconsistency.” BOEM agrees with this suggestion, and has included a reference to the CZMA in final rule section 556.305(b).
Section 556.306. What if a potentially oil-or gas-bearing area underlies both the OCS and lands subject to State jurisdiction? This section provides a process for resolving issues or disputes that may arise between a State and the Federal government when a hydrocarbon-bearing area underlies both the Federal OCS and State submerged lands. This final rule section did not appear in the proposed rule. The substance of the final rule section is, however, found at prior BOEM regulation section 556.25(b)-(d). The Preamble to the proposed rule stated that this section of the prior regulations had been left out in an attempt to simplify the regulations. Upon reconsideration, however, BOEM believes that the proposed rule may have over-simplified the regulations, resulting in a gap. The proposed rule, at section 256.302, addressed potentially leasable areas “within 3 miles of the seaward boundary of a coastal State.” The proposed rule did not, however, address potentially leasable areas that underlie the Federal/State boundary, resulting in potentially leasable resources on both sides of this boundary. The two situations are treated differently in OCSLA, at sections 8(g)(2) and 8(g)(3), respectively (43 U.S.C. 1337(g)(2) and 1337(g)(3)). Therefore, BOEM believes that they should be treated separately in the regulations and BOEM has decided to retain the prior regulations' provisions in the final rule, at section 556.306.
Section 556.307. What does BOEM do with comments and recommendations received on the proposed notice of sale? Final rule section 556.307 addresses BOEM's treatment of comments received on the proposed notice of sale, particularly those received from governors and local governments. This section provides a description of the process that BOEM will use to evaluate recommendations of governors and local governments. Section 556.307 is substantively the same as proposed rule section 256.305, but the final rule section has been divided into paragraphs for ease of reading and reference. The final rule section, at paragraph (b), contains one sentence that does not appear in the proposed rule, but did appear in the analogous prior section, 556.31(b). That sentence merely states that the determination of
Section 556.308. How does BOEM conduct a lease sale? Final rule section 556.308 explains that BOEM will publish a final notice of sale at least 30 days before the scheduled date of a lease sale. This final notice of sale will contain all the information needed to place a bid, as well as the terms and conditions of the lease, including any stipulations necessary to mitigate potential adverse impacts on the environment.
Final rule section 556.308, paragraphs (a)-(c), are substantively the same as proposed rule section 256.306. The final rule section includes a new paragraph (d), which was added at the request of a commenter. The commenter requested that “the Notices of Lease Sale should include the lease form that will be used to grant successful bids.” Therefore, final rule section 556.308 (d) states: “[t]he final notice of lease sale references, or provides a link to, the OCS lease form which will be issued to successful bidders.”
Section 556.309. Does BOEM offer blocks in a sale that is not on the Five Year program schedule (called a Supplemental Sale)? Under certain circumstances, detailed in proposed rule section 256.206 and final rule section 556.309, BOEM is authorized to offer blocks in an otherwise unscheduled sale, referred to as a supplemental sale. The proposed and final rule sections are the same.
Final rule Subpart D—Qualifications, was a sub-subpart in the proposed rule, under proposed rule Subpart D—Issuance of a Lease. The substance of the provisions in Subpart D of the final rule is the same as that found in sections 256.400 through 256.404 of the proposed rule. BOEM decided, however, that the provisions covering the qualifications necessary to hold leases on the OCS were significant enough to merit a separate subchapter in the final rule. BOEM believes it is logical to place “Qualifications” into its own subpart and to remove it from under the heading “Issuance of a Lease,” where it was found in the proposed rule as one must qualify
There are six sections within final rule Subpart D—Qualifications, which generally correspond with the five sections under the subheading “qualifications” in the proposed rule. There are, however, a few minor differences between the sections in the proposed rule and the sections in the final rule, including the lack of a table in the final rule to set out the type of evidence required by BOEM to demonstrate proof of qualification to hold leases on the OCS. The proposed rule laid out the evidence requirements in a table format, but on reconsideration BOEM found this format too limiting, and opted to remove the table and instead use regulatory text to set forth the evidence requirements for qualification. The substance of the regulations remains the same in the final rule.
Generally, there were some logical gaps in the scheme laid out by the proposed rule sections regarding “Qualification” to hold leases on the OCS, which BOEM has rectified in the final rule. For example, BOEM has been issuing “qualification numbers” to qualified potential lessees for many years, but the fact that such a number must be obtained by a potential lessee as a first step in the leasing process has not been clearly spelled out in the regulations. The lay-out of the proposed rule sections on qualification appeared to assume that the reader knew that he or she must obtain a qualification number from BOEM in order to be “qualified” to hold leases on the OCS, without ever saying how that number would be obtained.
The other minor differences between the proposed and final rule provisions dealing with “Qualifications” are set forth, section-by-section, below.
Section 556.400. When must I demonstrate that I am qualified to hold a lease on the OCS? This section provides that, in order to bid on, own, hold, or operate a lease on the OCS, bidders, record title holders, and operating rights owners must first obtain a qualification number from BOEM. The title of this section was reworded to more clearly describe this purpose.
Final rule section 556.400 is an outgrowth of proposed rule section 256.401(a). Proposed rule section 256.401(a) stated that, a person, in order to show that he or she was qualified to be a lessee, must “provide [his] MMS qualification number.” The proposed rule failed to explain, however, that a potential lessee first had to obtain a qualification number from BOEM. Final rule section 556.400 explains that, “in order to bid, own, hold, or operate a lease on the OCS,” one must obtain a qualification number from BOEM. Final rule section 556.400 also makes clear that a bidder must be qualified in order to bid on OCS leases, as was required by prior section 556.46.
Section 556.401. What do I need to show to become qualified to hold a lease on the OCS and obtain a qualification number? This section outlines BOEM's requirements for a prospective lessee to become a qualified bidder. Final rule section 556.401 is essentially proposed rule section 256.400, with a few minor additions, which flow from the language of the proposed rule. Like the proposed rule provision, the final rule provision lists those who may become qualified to hold leases on the OCS, but better describes the entities previously identified only as “associations.” Proposed rule section 256.400(c) listed “[a] private, public or municipal corporation organized under the laws of any State of the U.S., the District of Columbia, or any territory or insular possession subject to U.S. jurisdiction.” A Limited Liability Company (LLC) was not listed in proposed rule section 256.400(c), but LLC was listed in the table in proposed rule section 256.401 as one of the entities that may become qualified to hold leases on the OCS. Therefore, the final rule provision adds to the list in section 556.401 a “Limited Liability Company or Limited Liability Corporation organized under the laws of any State of the United States, the District of Columbia, or any territory or insular possession subject to United States jurisdiction.”
Proposed rule section 556.400(e) listed a “State” as one entity potentially qualified to hold leases on the OCS. The final rule, at section 556.401(a)(5), using language from proposed rule section 256.400(c), instead says: “[a] State, the District of Columbia, or any territory or insular possession subject to United States jurisdiction.” Similarly, proposed rule section 256.400(f) listed a “political subdivision of States” as also potentially qualified to hold leases on the OCS. The final rule, at section 556.401(a)(6) instead says: “[a] political subdivision of a State, the District of Columbia, or any territory or insular possession subject to United States jurisdiction.”
Final rule section 556.401, at paragraph (a)(7) adds “Trust” to the types of entities that are potentially qualified to hold leases on the OCS. A trust is one of the entities listed in the table in proposed rule section 256.401, but it is not among those potentially qualified entities that were listed in proposed rule section 256.400. In order to rectify this oversight, the final rule section adds “Trust” to the list of those potentially qualified set forth in final rule section 556.401, and adds that any such Trust must also be “organized under the laws of any State of the United States, the District of Columbia, or any territory or insular possession subject to United States jurisdiction.”
Final rule section 556.401(c) affirmatively states that BOEM may
Section 556.402. How do I make the necessary showing to qualify and obtain a qualification number? This section describes the types of evidence that BOEM will require in order to qualify a person to hold leases on the OCS. Section 556.402 replaces proposed rule section 256.401, including the table in the latter. There are certain minor differences between the proposed and final rule sections, including the following:
Both proposed rule section 256.401 and final rule section 556.402 list the evidence needed to show that one is qualified to hold leases on the OCS. In the final rule, we added that such evidence must be “acceptable to BOEM.” This requirement was implicit in the proposed rule. There would be no point in requiring evidence of qualification if BOEM were obligated to accept evidence that is not sufficient as to form or content to enable BOEM to be certain of the status of the submitter. In order to be certain of this status, it is reasonable to expect that only evidence “acceptable to BOEM” will be accepted.
Final rule section 556.402, subparagraph (c)(3), adds the requirement that an entity seeking to qualify to hold leases on the OCS provide BOEM with a list of persons authorized to bind the entity, and that such list be kept current. This subparagraph reminds the entity that it is up to the entity, (and therefore, not up to BOEM) to determine who in its organization is authorized to bind it. BOEM believes that the requirement to provide a list of persons authorized to bind an organizational entity is a logical extension of the requirement to provide the various documents listed in the proposed rule table at proposed rule section 256.401. BOEM also believes that providing and updating this list of persons, along with the other evidence required by final rule section 556.402, is a simpler and more manageable way to approach the question of who is authorized to bind a specific entity than the prior regulations or the language used in the proposed rule.
Final rule section 556.402 contains several paragraphs that did not appear in the analogous section of the proposed rule (section 256.401). Both proposed rule section 256.401 and final rule section 556.402 address traditional business entities, such as corporations and partnerships. There are, however, other types of business organizations that are eligible to qualify to hold leases on the OCS, but that would not have been covered by the qualifications provision in the proposed rule.
Paragraph (e) of final rule section 556.402 therefore addresses business entities with non-traditional business forms. Some of these non-traditional business forms do not have standard positions, such as “president” or “secretary.” Accordingly, paragraph (e) of final rule section 556.402 does not name a particular position but states that an individual from the highest level of management of an entity with a non-traditional business form, who is authorized by the entity's operating agreement or governance documents to submit evidence of eligibility to hold OCS leases, must submit such evidence. Paragraph (e) is a clarification of proposed rule sections 256.401(c)(4) and 256.401(d), both of which sought to ensure that BOEM does business with the person within a qualified organization who has the authority to bind that organization. Paragraph (e) is a general catch-all meant to ensure that there are no gaps in BOEM's regulations when it comes to the evidence necessary to demonstrate qualification to hold leases on the OCS.
Final rule section 556.402(f) states the entity that obtains a qualification number is responsible for ensuring that the number is used only for the purposes that the entity's governance documents allow. This was implicit in the proposed rule, but the new final subsection makes it clear that it is not BOEM's responsibility to ensure that entities are not going beyond their allowed powers in their dealings on the OCS.
Lastly, final rule section 556.402(h) makes it clear that one may not hold leases on the OCS until BOEM has issued a qualification number. This concept was also implicit in the proposed rule and in BOEM's prior regulations in the requirement to obtain the qualification number.
Section 556.403. Under what circumstances may I be disqualified from holding a lease on the OCS? This section describes the circumstances under which a person may be excluded or disqualified from holding a lease on the OCS. Final rule section 556.403 substantively replicates proposed rule section 256.402, with some minor language changes. The language at final rule section 556.403, paragraph (b), tracks the language of OCSLA more closely than did the language of the corresponding section in the proposed rule. This was done at the request of a commenter and ensures that paragraph (b) (“You may not hold an OCS lease if . . . The Secretary finds, after notice and hearing, that you or your principals fail to meet due diligence requirements or to exercise due diligence under section 8(d) of OCSLA . . . on any OCS lease”) could not be interpreted to conflict with section 8(d) of OCSLA (“No bid for a lease may be submitted if the Secretary finds, after notice and hearing, that the bidder is not meeting due diligence requirements on other leases.” 43 U.S.C. 1337(d)).
Also, the language at final rule section 556.403, paragraph (c), was revised to make it clear that either BOEM or BSEE could offer notice and opportunity for a hearing to determine whether operating performance is unacceptable, pursuant to either appropriate BOEM regulations or appropriate BSEE regulations. This clarification is necessary because of the division of BOEMRE into two agencies, and the fact that both BOEM and BSEE have a role in determining whether operating performance is unacceptable.
Section 556.404. What do the non-procurement debarment rules require that I do? Final rule section 556.404 details how to comply with the Department's non-procurement debarment rules, specifically those that relate to entering covered transactions and notifying BOEM if you know that you or your principals are excluded or disqualified, or have been indicted or convicted of a crime .It is substantively the same as proposed rule section 256.403, with minor conforming language changes.
Section 556.405. When must I notify BOEM of mergers, name changes, or changes of business form? This section provides that lessees must notify BOEM of any merger, name change, or change of business form as soon as practicable, but in no case later than one year after the change or action. Final rule section 556.405 is the same as the proposed rule section, 256.404, with one exception. The proposed section stated “[y]ou must immediately notify BOEM of a name change,” but then allowed up to one year within which to do so. A commenter pointed out the inconsistency between the word “immediately” and the one-year period, and BOEM has therefore dropped the word “immediately” from final rule section 556.405 and replaced it with “as soon as practicable.”
This same commenter opined that providing BOEM with name changes or changes of business form would be too burdensome and that BOEM has “multiple ways to learn of a merger or name change.” BOEM does not agree
Subpart E—Issuance of a Lease, is divided into four subdivisions in the final rule: “How to Bid,” “Restrictions on Joint Bidding,” “How Does BOEM Act on Bids?” and “Awarding the Lease.” The regulations in the first subdivision delineate the process of submitting a bid to BOEM and the information that must be submitted with the bid. The next subdivision, “Restrictions on Joint Bidding,” explains the effect of being placed on BOEM's Restricted Joint Bidders List and the reporting requirements for those placed on the List. “How Does BOEM Act on Bids?” presents information as to BOEM's acceptance or rejection of bids, the treatment of a tied bid, and the options available to a high bidder whose bid was rejected. The last subdivision of Subpart E, “Awarding the Lease” explains the procedures the bidder must follow after BOEM accepts its bid.
Following is a section-by-section analysis of the sections within Subpart E.
Section 556.500. Once qualified, how do I submit a bid? Final rule section 556.500 states generally that each bidder must submit a separate sealed bid for each tract or bidding unit, along with a bid deposit. The final rule section specifies that information regarding the timing of bid submission, and the amount and payment method of bid deposits, will be set forth in the final notice of sale. Final rule section 556.500 appeared at proposed rule section 256.410.
Paragraph (c) of final rule section 556.500 reaffirms the practice from the prior regulations (section 556.46(b)) and the proposed rule (section 256.410(b)) that the final notice of sale will specify the amount of the bid deposit. Paragraph (c) adds, however, that if not so specified, the “default” deposit amount will be twenty percent of the bid, the deposit amount that has been required for many years. As pointed out by a commenter, a bid deposit of twenty percent is the “status quo.” Another commenter noted that the bid deposit is “typically set at one-fifth of the bonus bid amount.” BOEM finds it unnecessary to seek comments on this “default” language, which merely reflects the “status quo.”
Section 556.501. What information do I need to submit with my bid? Final rule section 556.501 reiterates requirements, found in section 26(a)(1)(A) of OCSLA (43 U.S.C. 1352(a)(1)(A)), to provide geological and geophysical (G&G) data to BOEM upon request. Current BOEM regulations in part 551 of Title 30 of the CFR, “Geological and Geophysical (G&G) Explorations of the Outer Continental Shelf,” already address this requirement, as applied to G&G activities permitted “on unleased lands or on lands leased to a third party,” 30 CFR 551.12(a). Therefore, current part 551 already applies to lands being bid upon, but BOEM has included section 556.501 in this final rule, because part 556 sets forth bidding and leasing procedures/requirements, and the requirement to provide G&G information with a bid logically falls within this comprehensive whole. Including final rule section 556.501 ensures that bidders are aware that they may need to submit requested G&G information at the time of bidding.
In the prior regulations, there are a series of definitions and other provisions that apply only in the context of restricted joint bidding, which were not in the proposed rule. Prior regulation section 556.40 lists 13 definitions, which help explicate the joint bidding restrictions. The proposed rule Preamble stated that section 256.40 (now 556.40) was “[e]liminated as redundant,” but, upon reviewing the proposed rule and the comments, BOEM decided that these definitions and provisions are not “redundant,” but instructive and helpful to explain the concepts underlying restrictions on joint bidding. The definitions have been retained in the final rule, some in the final rule definitions section, 556.106, and some in the provisions under this subheading of “Restrictions on Joint Bidding,” made up of final rule sections 556.511 to 556.515.
Further, there are several provisions previously found at 556.43(d) and (e), which explain how to measure oil, natural gas liquids, and natural gas, for purposes of determining whether a person's production has exceeded 1.6 million barrels in the prior period, and thus whether he or she will be on the Restricted Joint Bidders List (sometimes referred to below as the “List”). For example, prior section 556.43(d) stated that: “[a]ll measurements of crude oil . . . under this section shall be at 60 degrees Fahrenheit.” These important provisions were left out of the proposed rule with no explanation other than that section 256.43 (previously 556.43) was “simplified and reorganized.” BOEM has reconsidered this “simplification and reorganization” and has determined that these measurement-describing provisions should be retained. They appear in final rule section 556.513(d).
Section 556.511. Are there restrictions on bidding with others and do those restrictions affect my ability to bid? This section prohibits joint bidding by major oil and gas producers under certain circumstances. Final rule section 556.511 is substantively the same as proposed rule section 256.411, but the final rule section has one additional paragraph. This additional paragraph, 556.611(d), makes clear that a person on the Restricted Joint Bidders List may not enter into a pre-bidding agreement for the conveyance of any lease interest to another person on the List. The prohibition on pre-bid agreements between persons on the List was addressed in prior section 556.44 (c), but was not addressed in the proposed rule. BOEM has decided to retain this provision because of its continued relevance and applicability.
Section 556.512. What bids may be disqualified? This section provides the circumstances under which a bid for any oil and gas lease will be disqualified and/or rejected. Final rule section 556.512 does not have a counterpart in the proposed rule, but it was found in the prior regulations at section 556.44. The Preamble to the proposed rule stated that section 256.44 (now 556.44) was “simplified,” and the reader was directed to proposed rule section 256.402 in its stead, but this “simplification” would create a discrepancy. Current section 556.44 addresses disqualification of certain types of bids involving persons on the List of Restricted Joint Bidders. Proposed rule section 256.402 has nothing to do with joint bidding, but sets forth three discrete situations where any person may be disqualified from holding a lease (exclusion due to the non-procurement debarment and suspension system, failure to exercise due diligence, or unacceptable operating performance). The substance of prior section 556.44 did not appear anywhere in the proposed rule, but BOEM has decided that it is necessary for a full understanding of the effects and ramifications of being placed on the Restricted Joint Bidders List. Therefore, the text of prior section 556.44 has been retained, verbatim, with only necessary
Section 556.513. When must I file a statement of production? This section explains the circumstances under which a lessee must prepare and send to BOEM a statement describing its oil and gas production and what the statement is to contain. Final rule section 556.513 contains the substance of proposed rule section 256.412, as well as three subparagraphs previously found at prior section 556.40(l) and omitted from the proposed rule. Proposed rule section 256.412 explained that a person on the List of Restricted Joint Bidders would have to file a statement of production when its production exceeded 1.6 million barrels of oil, natural gas liquids, and natural gas during the prior production period. The prior regulations had the same provision, but the prior regulations, at section 556.40(l), also defined what “Production” meant with respect to each of these resources. Appropriate portions of the 556.40(l) definitions have been retained in final rule section 556.513 to make clear what is to be included in the measurement of crude oil, natural gas liquids, and natural gas when determining production chargeable to the prior production period.
Section 556.514. How do I determine my production for purposes of the Restricted Joint Bidders List? This section details what production must be counted when determining whether a company should be considered a “restricted bidder.” Final rule section 556.514 replicates proposed rule section 256.413, with some concepts included from prior sections 556.40 and 556.43. Section 556.43(d) states that “[a]ll measurements of crude oil and liquefied petroleum products [referred to as natural gas liquids in the final rule] . . . shall be at 60 degrees Fahrenheit.” The proposed rule did not include the 60 degree Fahrenheit measurement parameter, but BOEM has decided to retain it as a necessary instruction for those persons who need to determine their production for purposes of the Restricted Joint Bidders List. The measurement parameter is in final rule section 556.514(a)(1).
Also in final rule section 556.514(a)(1) is a reference to the equivalency factors set forth in 42 U.S.C. 6213(b)(2) and (3), which state, respectively: “[o]ne barrel of natural gas equivalent equals 5,626 cubic feet of natural gas measured at 14.73 pounds per square inch [(PSI) relative to the mean sea level, or] (MSL) and 60 degrees Fahrenheit” and “[o]ne barrel of natural gas liquids equivalent equals 1.454 barrels of natural gas liquids at 60 degrees Fahrenheit.” These two equivalencies were found in the prior regulations at section 556.43(e), but were omitted from the proposed rule. BOEM believes that these equivalencies are also necessary instructions for persons attempting to determine whether their production would place them on the Restricted Joint Bidders List.
The final rule, at section 556.514(d), also retains the definition of “subsidiary” found in prior section 556.43(a)(3), but not contained in the proposed rule. Final rule section 556.514(f), which further explains how measurements of resources must be made, was not in the proposed rule, but was found at prior section 556.40(l)(1) and (2).
Final rule section 556.514(e) is a logical extension of the interplay among prior section 556.40's definitions of “economic interest” and “owned” and prior section 556.43(b). The definitions in prior section 556.40 applied to joint bidding and restrictions thereon. The definition of “economic interest” defines certain types of passive interests, such as a royalty interest or a net profits interest. The definition of “owned” in prior 556.40 included “having . . . an economic interest in” the production of crude oil, natural gas, or natural gas liquids. And 556.43(b) stated that a person is chargeable, for purposes of joint bidding restrictions, with production that it “owns.” Therefore, reading these provisions logically together, a person's economic interest in production must be counted in that production chargeable to him or her for purposes of determining whether he or she is on the Restricted Joint Bidders List. This concept from the prior regulations is retained in the final rule in section 556.514(e) and the text was not changed from how it was originally proposed.
Section 556.515. May a person be exempted from joint bidding restrictions? This section provides the circumstances under which a person may be exempted from joint bidding restrictions. Final rule section 556.515 is based on proposed rule section 256.414. Proposed section 256.414, however, did not state the specific regulatory sections from which exemption from the joint bidding restrictions or reporting requirements may be granted. These specific designations were found in the prior regulations, at section 556.41(d), and have been retained in final rule section 556.515.
Section 556.516. What does BOEM do with my bid? This section outlines the procedures BOEM will follow when reviewing bids received for leases on the OCS and when handling tie bids. Section 556.516 of the final rule is based on proposed rule section 256.416. Proposed section 256.416(b) stated that BOEM would accept or reject all bids within 90 days, or a longer time if BOEM extended the 90-day period. Section 556.516(b) of the final rule adds that BOEM will timely notify bidders in writing of a decision to extend the 90-day period. Proposed section 256.416(d) states that the Attorney General may review the results of a sale before BOEM accepts any bid. This requirement is repeated in final rule section 556.516(d), with additional language explaining that the Attorney General must act within 30 days and may consult with the Federal Trade Commission. Both of these strictures are found in section 8(c)(1) of OCSLA (43 U.S.C. 1344(c)(1)).
BOEM received the following comment: “There is no policy reason not to allow co-ownership by agreement of bidders with a tie bid, when the tie bidders are on the restricted joint bidder list. Those parties cannot have communicated or agreed with respect to the bid, but going forward could agree to an assignment creating co-ownership after the lease is awarded.” Neither the prior regulations (see 30 CFR 556.47(c)), nor the proposed rule, (see section 256.416(c)), permit tie high bidders who are both (or all) on the Restricted Joint Bidders List to accept a lease jointly. BOEM considered the comment above but concluded that there is no way to know whether tie bidders “communicated or agreed with respect to the bid.” Therefore, BOEM has decided that the current policy is a sound one and will not be changed.
There is one significant difference between proposed rule section 256.416 and final rule section 556.516. Proposed rule section 256.416(c) addressed tie bids and stated that if there was no agreement among the bidders as to who would receive the lease, BOEM would “award the lease to the high bidder selected by lot.” The prior regulation, at section 556.47(e)(2), did not allow a bid to be awarded by lot, but stated that if an agreement from the tie bidders was not submitted to BOEM within 15 days, “all bids shall be rejected.”
BOEM has reconsidered the “award by lot” policy enunciated in the proposed rule, and has decided not to adopt that policy. The policy is inherently unfair to one of the bidders and is inconsistent with BOEM's long-standing policy that if no bids are accepted, the lease will be withheld by BOEM and offered in the next lease sale. This policy affords BOEM the
Section 556.517. What may I do if my high bid is rejected? This section describes the reconsideration procedures that apply in the event that a high bid is rejected by BOEM. Proposed rule section 256.417 would have allowed a bidder whose bid was rejected to request reconsideration of that rejection within 15 days, and stated that the bidder would receive a written response. The previous regulations at section 556.47(e), and the proposed rule at section 256.410, stated that the request for reconsideration is to be made to the Secretary. The proposed rule section did not address whether such a request could be appealed, but the previous regulations at 556.47 stated that decisions on high bids are not subject to review by the Department's Office of Hearings and Appeals.
BOEM received a comment on proposed section 256.417 that requested more detail regarding reconsideration of rejection of a high bid, specifically as to the review process for a reconsideration request. In response to the comment, BOEM has added detail to the final rule section to clarify the procedures to be followed by the bidder requesting reconsideration, and those that will be followed by BOEM when it receives such a request. Therefore, final rule section 556.517 states that the decision of the authorized officer on bids is the final action of the Department, and that the request for reconsideration of such a decision must be made to the Director, as the Secretary's delegate, and must include evidence as to why the decision should be reconsidered. The final rule section retains the section 556.47 statement that the decision on the reconsideration is not subject to review by the Department's Office of Hearings and Appeals.
Section 556.520. What happens if I am the successful high bidder and BOEM accepts my bid? This section describes the steps involved in the lease award process. BOEM received several comments on proposed section 256.420, which appears at final rule section 556.520, particularly on proposed section 256.420(c). That paragraph stated that if a successful bidder did not return the executed lease in the prescribed time or if it otherwise failed to comply with the regulations, its deposit would be forfeited “and [BOEM] may take appropriate action to collect the full amount bid.” Three commenters pointed out that, traditionally, in the scenario posited above, the bidder's deposit was forfeited, but BOEM had never attempted to collect the full amount bid. One of these commenters stated that “[p]ayment of the one-fifth amount is sufficient penalty,” and payment of amounts beyond that “is not warranted.” Another of the commenters pointed out that forfeiting the “significant penalty” of the one-fifth deposit “allows lessees to make an informed decision on leasing if information relating to the area becomes available after the bids are made.” The third commenter “objected” to the forfeiture of the full bid amount, but also suggested some alternatives for BOEM's implementation of this provision, such as offering the second-highest qualified bidder the lease if the high bidder forfeits.
BOEM generally agrees with the comments. Accordingly, final rule section 556.520 does not include the language that, in a forfeiture situation, BOEM may take action to collect the full amount bid. Nor will BOEM offer the lease to the second-highest bidder, as that could violate BOEM's mandate to obtain fair market value for all leases. Instead, BOEM will retain the current policy, now expressed in the regulations at section 556.47(g), that in the case of forfeiture, the forfeiting bidder will lose its deposit.
BOEM also received a comment on another aspect of proposed section 256.420(c). The comment noted that the proposed section states that a high bidder must “execute and return the lease within 11 business days after receipt” and contrasted that with the prior regulation, which stated that “the bidder shall, not later than the 11th business day after receipt of the lease, execute the lease.”
Section 556.521. When is my lease effective? Final rule section 556.521 and proposed rule section 256.421 are the same. They both state BOEM's long-standing policy that a lease is effective on the first day of the month following the month in which BOEM executes the lease, but that a lessee may request that its lease be made effective as of the first day of the month in which BOEM executes it. The final rule also adds a provision that, if BOEM agrees to make it effective as of the earlier date, it will so indicate when it executes the lease.
Section 556.522. What are the terms and conditions of the lease and when are they published? This section provides that the terms and conditions of the lease will be stated in the final notice of sale, as well as in the lease instrument itself. Final rule section 556.522 is based on prior section 556.49. The prior section stated that oil and gas and sulfur lease forms will be approved by the BOEM Director. The prior section also mentioned forms for other minerals. The section was not included in the proposed rule, the Preamble of which stated that the “[d]iscussion of form[s] for other minerals [was] eliminated as redundant.” However, the proposed rule eliminated all of prior section 556.49 and BOEM has decided to retain, in final rule section 556.522, the statement as to forms for oil and gas and sulfur leases. Final rule section 556.522 also echoes final rule section 556.308(a)(2), which states that the terms and conditions of the lease will be found in the final notice of sale.
Section 556.600. What is the primary term of my oil and gas lease? Final rule section 556.600 (a) and (b) closely follows OCSLA and makes clear that the initial period/primary term of a lease will be five years, unless BOEM determines that a longer initial period/primary term, up to 10 years, is necessary due to unusually deep water or unusually adverse conditions. Proposed section 256.600 stated that an initial period of an oil and gas lease “may range from five to ten years,” but provided no clarification as to why there could be such a range. Section 8(b) of OCSLA (43 U.S.C. 1337(b)) states that the initial period of a lease must be for five years, or for up to 10 years, if extension of the lease term is necessary due to unusually deep water or other unusually adverse conditions.
Final rule section 556.600 (a) and (b) follows OCSLA's example, with one slight difference. OCSLA most commonly refers to the initial term of a lease as the “initial period,” but also refers to the initial term as the “primary term.”
Proposed rule section 256.600 used the term “initial period” to refer to the originally granted length of a lease. The terms “primary term” and “initial period” were used interchangeably throughout BOEM's prior regulations to mean the same thing (for example, 556.37(a) and (b) refer to “initial period,” while 556.68(b) and (c), and 556.70 refer to “primary term”) and BOEM has elected to use the phrase “primary term” rather than “initial period” in this final rule in order to better reflect the lease term description that is most commonly used in the U.S. oil and gas industry.
The final rule removes the provision found in BOEM's previous regulations at section 556.37 and proposed rule section 256.600, which stated that, for leases in water depths between 400 and 800 meters, the primary term will be eight years, subject to administrative cancellation if no exploratory well is begun during the first five years after lease issuance. No further notice and comment are required for this change, as BOEM notified the public of the change in 2009 and provided an opportunity to comment, and all lease sales since 2009 have been consistent with this new practice. Specifically, BOEM stopped issuing leases with eight-year primary terms beginning with Central Gulf of Mexico Lease Sale 213, held on March 17, 2010. On November 16, 2009, eight months after the publication of the proposed rule, the MMS published the Proposed Notice of Sale for Lease Sale 213 (PNOS) (74 FR 58975). The PNOS notified the public that BOEM was considering dropping the eight-year primary term, and replacing it with a five-year primary term, which could be extended another three years if certain conditions were met. The PNOS also detailed that this five-year primary term, with a possible three-year extension, would apply in water depths between 0 and 800 meters, whereas a seven-year primary term, with a possible three-year extension, would apply in water depths between 800 and 1600 meters. In more than 1600 meters of water, the PNOS stated that the primary term would be 10 years.
The PNOS also stated that, if a five- or seven-year primary term were not extended, the lease would expire, removing the need for administrative cancellation. The MMS received comments on the change from an eight-year primary term to a five- or seven-year primary term, as well as on the change from cancellation to expiration. The MMS carefully considered these comments and responded to them in the Final Notice of Sale for Lease Sale 213 (FNOS). In the FNOS, the MMS stated that it had decided to no longer offer leases with eight-year primary terms and to proceed with offering leases in Sale 213 with five- and seven-year primary terms, which would be subject to extension or expiration.
BOEM has offered five- and/or seven-year primary terms in all eight lease sales held since Sale 213 and intends to continue doing so. To avoid any confusion about whether BOEM intends to revert to the pre-2010 practice of issuing leases for eight year terms contingent on drilling in the first five years, however, final rule section 556.600 tracks OCSLA closely in stating that the primary term of all leases will be five years, unless BOEM specifies otherwise. Unlike the prior regulations and the proposed rule, section 556.600 in the final rule does not attempt to “specify otherwise” in the regulation itself. Instead, it states, at subsection 556.600(c), that BOEM will specify the primary term in the final notice of sale and in the lease instrument, giving BOEM flexibility for the future.
The new language will not preclude BOEM from offering eight year leases, nor does the existing regulation mandate eight year leases. Thus, the rule does not change BOEM's current practice. Accordingly, pursuant to 5 U.S.C. 553(b)(3)(B), BOEM, for good cause, finds that notice and public comment are unnecessary. In any event, as noted above, the public had an opportunity to express its views on the underlying policy in response to the PNOS published in the
Section 556.601. How may I maintain my oil and gas lease beyond the primary term? This section lists the ways in which a lessee may maintain its lease for a period of time after the end of the primary term. Final rule section 556.601 is substantively the same as proposed rule section 256.601, with some minor language changes for clarity. Proposed rule section 256.601(a) included, among the ways of maintaining a lease beyond its primary term, the granting of a suspension, but final rule section 556.601(f) retains the more specific language from prior sections 556.37(b) and 556.73 that maintenance of a lease beyond the primary term will not result from a suspension imposed due to gross negligence or willful violation of a lease provision or regulation.
Section 556.602. What is the primary term of my sulfur lease? As described in proposed rule section 256.602, final rule section 556.602 states that the primary term of a sulfur lease will be not more than 10 years, as mandated by section 8(j) of OCSLA. (43 U.S.C. 1337(j)). Proposed section 256.602 stated that a sulfur lease is subject to administrative cancellation if an exploratory well was not begun in the first five years. BOEM is no longer following the practice of cancelling leases in these circumstances, and this provision has been dropped from the final rule. Instead, final rule 556.602 states that the sulfur lease will expire at the end of the primary term if not maintained in accordance with the regulations.
Section 556.603. How may I maintain my sulfur lease beyond the primary term? This section lists the ways in which a lessee may maintain its sulfur lease after the end of the primary term. Final rule section 556.603 is substantively the same as proposed rule section 256.603, with some minor language changes for clarity. Proposed rule section 256.603 included, among ways of maintaining a lease beyond its primary term, the granting of a suspension, but final rule section 556.603 elaborates that such an extension cannot result from a suspension imposed due to gross negligence or willful violation of a lease provision or regulation, as was stated at prior section 556.73.
Section 556.604. What are my rights and obligations as a record title owner? This section outlines the rights and obligations of a record title holder of an OCS lease. Final rule section 556.604 includes, with different subsections and some additional language, proposed rule sections 256.605 and 256.612. Proposed rule section 256.605 was entitled, “What are my obligations as a record title owner?” and proposed rule section 256.612 was entitled, “May I assign operating rights?” In the final rule, BOEM has combined these sections, as they both address the rights and obligations of a record title owner.
Proposed rule section 256.612 stated that a record title owner may assign (sever) operating rights, and refers to these assignments as “subleases,” which they are. The term “assignment of operating rights” has been used in the past, but is inaccurate when referring to an initial severance of operating rights. Operating rights are a part of the whole of a record title interest. When they are initially severed, they are actually
Both proposed rule section 256.612 and final rule sections 556.604(b) and (c) explain that operating rights must be described by officially designated aliquot parts, and that, within any aliquot part, a record title owner may create a maximum of two subleases by depth. The one, or two, subleases may include the entire depth of the lease, but if they do not, any depth intervals not subleased are retained by the lessee/sublessor. Final rule section 556.604(c) elaborates that if two subleases are created by depth level, the two subleases must abut each other, with no gap in between. The “no gap” concept did not appear in the proposed rule, but it is, and has been, BOEM's long-established policy, and imposes no new duty on lessees. Therefore notice and comment is unnecessary.
Both proposed rule section 256.605(a) and final rule section 556.604(d) explain that a record title interest owner is jointly and severally liable, with all other record title owners and all operating rights owners, for all non-monetary obligations of a lease that accrue while it holds record title. Final rule section 556.604(f) also contains the concept that a record title owner who obtained its record title through assignment is responsible for remedying all existing environmental or operational problems on a lease, with subrogation rights against prior lessees. This concept was found in both the prior regulations and in the proposed rule in sections addressing transfers of lease interests, (556.62(e) and 256.618, respectively), as it is in the final rule (556.713 and 556.807), but it is also appropriately included here, as the requirement that an assignee remedy all existing environmental and operational lease problems is an “obligation” of the assignee-record title owner.
Proposed rule section 256.605(b) and final rule section 556.604(f) both also address the responsibility of record title owners for monetary obligations, pursuant to the Federal Oil and Gas Royalty Simplification and Fairness Act. Both sections make clear that, with respect to operating rights retained by a record title owner, the record title owner is primarily liable for monetary obligations, but with respect to those operating rights that have been subleased to others, the record title owner becomes secondarily liable, while the sublessee/operating rights owner is primarily liable.
Section 556.605. What are my rights and obligations as an operating rights owner? Proposed rule section 256.606 and final rule section 556.605 both address the rights and obligations of an operating rights owner, as opposed to a record title owner.
Final rule section 556.605(d) was added as the result of two comments on the proposed rule. The comments pointed out that the proposed rule was inconsistent in that proposed section 256.605(a) stated that operating rights owners were jointly and severally liable with record title owners for all non-monetary obligations, but proposed section 256.606(c) stated that operating rights owners were so liable only with respect to that portion of the lease subject to their operating rights. To make clear that the latter concept is correct, BOEM added final rule section 556.605(d), which states: “[a]n operating rights owner is only liable for obligations arising from that portion of the lease to which its operating rights appertain and that accrue during the period in which the operating rights owner owned the operating rights.”
Proposed rule sections 256.606(c) and (d) are essentially repeated in final rule sections 556.605 (e) and (g). In both cases, the former section states that an operating rights owner is jointly and severally liable, with all other operating rights owners and record title owners, for non-monetary obligations. Also in both cases, the latter section states that an operating rights owner is liable for monetary obligations in proportion to its share of operating rights. Final rule section 556.605(g) goes on to point out that operating rights owners are primarily liable for these monetary obligations, while (as stated in final rule section 556.604(f) and pointed out above) record title owners are secondarily liable.
Final rule section 556.605(f) also makes clear that operating rights owners that obtained rights through assignment are responsible for remedying all existing environmental or operational problems on a lease, with subrogation rights against prior operating rights owners. As mentioned above, this concept was found in both the prior BOEM regulations and in the proposed rule in sections addressing transfers of lease interests, (556.62(e) and 256.618, respectively), as well as in other sections of the final rule (556.712 and 556.807), but it is also appropriately included here, as the requirement that an assignee remedy all existing environmental and operational lease problems is an “obligation” of an assignee of operating rights.
Section 556.606. What must a lessee do if BOEM elects to extract helium from a lease? This section provides that BOEM reserves the ownership of, and the right to extract, helium from all gas produced from an OCS lease, and describes what BOEM will do if it requests you to deliver helium from operations associated with a lease. Final rule section 556.606 repeats proposed rule section 256.630. The final rule makes no changes to the proposed rule, other than conforming changes, such as changing “MMS” to “BOEM.”
The proposed rule followed the general format of the prior regulations in addressing together, in one regulatory subpart, both transfers of record title interests and transfers of operating rights interests. These two types of transfers are not the same, however, and they may have different consequences. Addressing them in the same regulatory sections has sometimes led to confusion and ambiguity. Therefore, in the final rule, BOEM divided the provisions dealing with assignment of different types of lease interests into two different subparts. Subpart G includes those provisions detailing the effects of an assignment of a record title interest, while subpart H includes those provisions detailing the effects of a sublease or subsequent assignment of an operating rights interest. None of the provisions in these subparts contains anything substantively new relative to the prior regulations, but the final rule more clearly separates out and explains the effects of an assignment of each type of lease interest on both the assignor and assignee. Subpart G consists of sections 556.700 through 556.716, and subpart H consists of sections 556.800 through 556.810. A section-by-section analysis of the sections in Subpart G is presented below, followed by a section-by-section analysis of the sections in Subpart H.
Section 556.700. May I assign or sublease all or any part of the record title interest in my lease? This section describes how a company may apply for approval to assign its whole or partial record title interest in its lease, or in any aliquot(s) thereof or to sublease operating rights. Proposed rule sections 256.610, 256.611, and 256.612 were collapsed and subsumed into final rule section 556.700, insofar as they apply to transfers of record title interests. Proposed rule section 256.610 stated that all transfers of lease interests require BOEM approval. Proposed rule section 256.611 and proposed rule section 256.612 repeated this requirement, with respect to transfers of “lease interests,” and operating rights, respectively. The requirement that BOEM approve transfers of record title interests and severances of operating rights interests appears in final rule sections 556.700(a), (b), and (c). Proposed rule sections 256.611 and 256.612 also specified that transfers must be properly described by aliquot parts and/or depth. This requirement of proper description is retained in final rule section 556.700(c).
Proposed rule section 256.611 referred to both “subdivisions” and “aliquot parts” when describing transfers of lease interests, but in final rule section 556.700, we removed the reference to subdivisions, retaining only the reference to aliquot parts, in order to reduce the potential for confusion. We also removed the definition of “aliquot part” from this section and moved it into the definitions section of the rule, section 556.106.
The last sentence of proposed rule section 256.611, stating that BOEM may disapprove a transfer when the assignor or assignee has unsatisfied obligations under this chapter, has been moved to final rule section 556.704, entitled, “When would BOEM disapprove an assignment or sublease of an interest in my lease?” Placement in that final rule section is more appropriate.
Section 556.701. How do I seek approval of an assignment of the record title interest in my lease, or a severance of operating rights from that record title interest? This section describes the process for obtaining BOEM approval of an assignment of a record title or operating rights interest in an OCS lease. Final rule section 556.701(a) was found at proposed rule section 256.613(a). The proposed rule section, at 256.613(a)(1), set out the official form numbers and names that one would use to effectuate and request approval of a transfer of lease interest. The final rule, however, merely states that the BOEM Regional Director will provide the form to be used to request and record such a transfer. BOEM made this change to retain flexibility as to form name and number in case these identifiers change in the future.
Proposed rule section 256.613(b), which provided that BOEM must consult with and consider the views of the Attorney General before approving a transfer of a lease interest, appears at final rule section 556.701(b). Finally, final rule paragraph 556.701(b) retains from prior section 556.65 the statement that the Secretary may act on a transfer if the Attorney General does not respond to a consultation request within 30 days of that request.
Section 556.702. When will my assignment result in a segregated lease? Final rule section 556.702(a) and proposed rule section 256.613(a)(2) both make clear that a transfer of 100% of the record title interest in one or more aliquots of a lease results in segregating the lease into two leases, both of which are referred to as “segregated leases” and are subject to all the terms and conditions of the original lease. (Although it would be uncommon, it is also possible that a lease could be segregated into more than two leases.)
Final rule section 556.702 also contains a subsection that was not found in the proposed rule and was not in the prior regulations—556.702(b). This provision in the final rule clarifies the principles governing lease segregation. It is an outgrowth and corollary of the lease segregation concept expressed in proposed rule section 256.613(a)(2). Specifically, final rule section 556.702(b) sets forth the direct corollary to section 556.702(a) by making clear that transfer of anything less than 100% of the record title interest in a certain aliquot does not create a new lease, but creates a joint ownership situation between the assignee(s) and assignor(s) in the portion of the lease in which part of the ownership was transferred.
The last sentence of final rule section 556.702(b) states that a transfer of less than 100% of the record title to an aliquot(s) is subject to BOEM approval. This sentence reiterates the principle that all transfers of lease interests are subject to approval by BOEM, pursuant to section 8(e) of OCSLA (43 U.S.C. 1337(e)), the lease terms (see section 20 of the current lease form, Form BOEM-2005), and prior regulations. This sentence was added in the final rule to ensure that there is no doubt as to whether a transfer that creates a joint ownership in a portion of a lease would constitute a lease transfer necessitating BOEM approval.
Section 556.703. What is the effect of the approval of the assignment of 100 percent of the record title in a particular aliquot(s) of my lease and of the resulting lease segregation? Final rule section 556.703 addresses the effects of a lease segregation (
An important clarification is made in final rule section 556.703(c). The proposed rule at section 256.613(a)(2) stated that upon lease segregation, “the newly segregated lease . . . is subject to all the terms and conditions of your original lease.” The ambiguity of this language could give rise to an improper inference in certain circumstances that the terms of the original lease pertaining to any applicable royalty suspension volume (RSV) would apply in full and equally to each of the segregated leases.
BOEM's prior regulations in section 556.68(a) were more specific than those from the proposed rule's section 256.613(a)(2), but are still ambiguous on this point. The prior regulation stated that “[r]oyalty, minimum royalty and rental provisions of the original lease shall apply separately to each segregated portion.” The prior regulation mentioned royalty provisions specifically, and stated that such provisions will apply “separately” to each lease, but its relationship to any unused RSV was not clear.
The ambiguity in the prior regulation may have led some to incorrectly infer that when a lease is segregated, each new lease would be allowed the entire amount of remaining available RSV that applied to the original lease. Such an interpretation would not have been justified. In the case of segregation of a deep water lease with an RSV into two leases, for example, that interpretation would have the substantive effect of doubling the remaining volume of royalty-free production. That is not the intent of offering particular leases with specified royalty suspension volumes under the authority of 43 U.S.C. 1337(a)(1)(H) or 1337(a)(3)(C) (the royalty relief provisions of the OCSLA enacted in the Deep Water Royalty
Final rule section 556.703(c) clarifies that in a lease segregation, each segregated lease is not individually entitled to the whole remaining RSV allowed to the original lease. Each lease segregation is unique and presents different circumstances that might affect the allocation of RSV. Therefore, paragraph (c) makes clear that BOEM will allocate the RSV among segregated leases on an equitable basis, considering all of the circumstances. Circumstances that may affect that allocation include the reasons for the segregation, whether the lease is producing, the relative production of the leases after segregation, future development plans, etc. The allocation of any remaining RSV will be stated in BOEM's approval of the assignment and segregation.
Final rule section 556.703(c) grows out of the proposed rule's statement at section 256.613(a)(2) that a newly segregated lease “is subject to all the terms and conditions of [the] original lease.” The final rule section carries forward the concept that the newly segregated lease is “subject to” any RSV provision that applied to the original lease, but clarifies in what manner that RSV provision will be applied to the two now-segregated leases. The language of final rule section 556.703(c) also clarifies the prior regulation's statement that royalty provisions apply “separately” to each lease. The final rule's language continues to apply the RSV provision “separately” to each segregated lease, but clarifies that “separately” does not mean “equally.”
Final rule section 556.703(d) retains from prior section 556.68(b) the principle that each segregated lease continues in effect for the primary term specified in the original lease, unless maintained thereafter pursuant to the regulations. Paragraph (d) makes express the principle that with respect to continuation beyond the primary term, each segregated lease stands on its own. To remain in force after the primary term, each segregated lease must, on its own, meet the requirements of section 556.601, regardless of whether other segregated leases, which were part of the original lease, meet such requirements. Production from one segregated lease will not keep any other lease that was part of the original lease in effect beyond its primary term (unless, of course, the leases are included within the same unit). BOEM believes that the regulations are more clear with both principles expressly stated in the final rule.
Section 556.704. When would BOEM disapprove an assignment or sublease of an interest in my lease? Final rule section 556.704 sets forth when a transfer of a lease interest may be void or disapproved by BOEM. The final rule section combines parts of proposed rule section 256.611 and section 556.62 from BOEM's prior regulations. The last sentence of proposed rule section 256.611 stated that an assignment could be disapproved if the assignor or assignee had outstanding obligations under this chapter of the regulations. This provision appears at final rule section 556.704(a)(1). Prior section 556.62 voided assignments made pursuant to certain prelease agreements. This provision is found at final rule section 556.704(b).
Final rule section 556.704 also contains two provisions, at paragraphs (a)(2) and (a)(3), which make clear that BOEM may disapprove an assignment that is incorrect as to form or that does not comport with the regulations. Provision 556.704(a)(2) more clearly expresses the intent of proposed rule section 256.613, which listed the names and numbers of the forms that BOEM requires to be used to effectuate a transfer of record title or operating rights interests. Pursuant to the proposed rule, BOEM would accept only transfers submitted on these forms. Implicit in the requirement to use these forms is the requirement to complete them correctly. Transfers attempted to be submitted on other forms, on incorrectly completed forms, or using other documentation would not be accepted.
In order to allow more flexibility and avoid restricting BOEM to a particular form name or number stated in the regulations, the final rule states that the Regional Director will provide a form for use in transfers of record title or operating rights. As in the proposed rule, however, only the form provided by the Regional Director will be accepted by BOEM, and only when completed correctly. Therefore, final rule section 556.704(a)(2) makes clear that a transfer request submitted to BOEM may be rejected if not “acceptable as to form or content.” The latter provision, 556.704(a)(3), provides that an attempted transfer that does not comport with the regulations or other applicable law will be disapproved.
Section 556.705. How do I transfer the interest of a deceased natural person who was a lessee? This section outlines the procedures to follow to transfer an interest in an OCS lease from a deceased natural person. Final rule section 556.705 repeats proposed rule section 256.614, with minor wording changes.
Section 556.706. What if I want to transfer record title interests in more than one lease at the same time, but to different parties? Final rule section 556.706 repeats proposed rule section 256.615 with some minor language changes. Both the proposed and final rule sections address a lessee or other interest holder who desires to transfer interests it owns in different leases to different parties. Both sections note that in this situation, each transfer requires its own instrument, which must be originally executed and filed in duplicate with BOEM.
Section 556.707. What if I want to transfer different types of lease interests (not only record title interests) in the same lease to different parties? This section outlines the process for transferring different types of interests in a lease to different parties. Final rule section 556.707 derives from proposed rule section 256.615. That proposed rule section addressed the situation where interests in
Section 556.708. What if I want to transfer my record title interests in more than one lease to the same party? This final rule section addresses lessees who desire to transfer interests in more than one lease to the same party. Final rule section 556.708 derives from the first sentence of proposed rule section 256.615. As noted by both proposed rule section 256.615 and final rule section 556.708, a lessee may not transfer record title interest in more than one lease using the same instrument. If a lessee wishes to transfer record title interest in more than one lease at the same time, the lessee must submit separate, originally executed forms for each transfer. Final rule section 556.708 also retains the statement from prior section 556.64(a)(8) that a separate fee applies to each individual transfer of interest.
Section 556.709. What if I want to transfer my record title interest in one lease to multiple parties? This section describes the requirements associated with transferring the record title interest in a lease to multiple parties. There is no analogous section in the proposed rule to final rule section 556.709, but the final rule section is a clarification of proposed rule section 256.615. That proposed rule section addressed the situations where interests in
Section 556.710. What is the effect of an assignment of a lease on an assignor's liability under the lease? Final rule section 556.710 was found at proposed rule section 256.616. Both the proposed and final rule sections state the long-established regulatory concept that after an assignment an assignor remains liable for all monetary and non-monetary obligations that accrued before approval of the assignment. Proposed rule section 256.616 applied to assignments in general, but final rule section 556.710 applies only to transfers of record title interests, and an analogous final rule section, 556.805, applies only to transfers of operating rights interests.
Section 556.711. What is the effect of a record title holder's sublease of operating rights on the record title holder's liability? This section provides that a record title holder who subleases operating rights remains liable for later accruing obligations of the lease, but is only secondarily liable for monetary obligations accruing thereafter. Parts of proposed rule section 256.616 appear at final rule section 556.711, specifically in 556.711(a) and (b). These two paragraphs, along with final rule section 556.709, retain all of proposed rule section 256.616 and make clear the extent of the liability retained by a party who assigns its record title interest. BOEM received a comment on proposed rule section 256.616 requesting that the final sentence be deleted because it was ambiguous. BOEM agrees with the comment and has deleted that sentence. The scenario it addressed in the proposed rule has been addressed without ambiguity in final rule section 556.711(a).
Final rule section 556.711(c) arises from FOGRMA, and states that a sublessee of operating rights is primarily liable for monetary obligations, but the record title holder, even after the sublease, remains secondarily liable for monetary obligations.
Section 556.712. What is the effective date of a transfer? This section describes the effective date of the transfer of a record title interest in a lease. Final rule section 556.712 is a combination of proposed rule section 256.617 and section 556.62(c) of BOEM's prior regulations. In the proposed rule, section 256.617 stated that an assignment is effective on the first day of the month following the request to assign, not following the date that BOEM approved the assignment. This left open the possibility, for example, that if you made a request to assign in April, it would become effective on the first of May, even if BOEM did not approve it until the fifteenth of May or later. The final rule section clarifies that, unless requested otherwise (see below), the effective date of a transfer of a lease interest is the first day of the next month after BOEM approves the transfer.
Final rule section 556.712, like proposed rule section 256.617, allows the parties to a transfer to specify a date on which their transfer will become effective. The proposed rule stated that BOEM would record the assignment as effective as of the date specified by the parties. The prior regulation, at section 556.62(c), did not affirmatively state that BOEM would accept the date specified by the parties. The prior regulation used the word “request” to refer to the parties' choice of a different effective date, and stated that the effective date would be specified in BOEM's approval. After further consideration of this issue, BOEM has decided to retain the idea in the prior regulation, and to clarify any ambiguity by stating that BOEM must approve a request for a specified effective date for a transfer of record title interest.
Both proposed rule section 256.617 and final rule section 556.712 also make clear that the transferor's obligations continue to accrue until BOEM approves the transfer, no matter when the effective date is specified to be. In other words, the proposed and final rules clarify that if the parties to a transfer specify an effective date that falls before BOEM's approval of the transfer, this date is “effective” between the parties, but it does not have any effect on the obligations of the transferor to BOEM. The accrual of those obligations is ended only by BOEM's approval of the transfer.
Section 556.713. What is the effect of an assignment of a lease on an assignee's liability under the lease? With respect to an assignee of a record title interest, final rule section 556.713 repeats proposed rule section 256.618. Both sections recite the obligations of an assignee, which include complying with the lease terms and regulations, remedying existing environmental and operational problems, and performing decommissioning.
Section 556.714. As a restricted joint bidder, may I transfer an interest to another restricted joint bidder? Final rule section 556.714 requires a person on the Restricted Joint Bidders List, when transferring less than 100% of its interest in a lease to another person on the same list, to file with BOEM all agreements applicable to the acquisition of the interest transferred. Final rule paragraph 556.714(a) retains the language to this effect found in prior section 556.64(i). This same requirement was also found in proposed rule section 256.619, and it engendered a comment that objected to proposed rule section 256.619 on several grounds. The comment stated that the documents requested by proposed section 256.619 may be “sensitive,”
For the most part, BOEM disagrees with this comment. Proposed rule section 256.619 did not introduce a new concept, but restated what was originally in prior section 556.64(i). Nor does BOEM find the section overly vague. The filing of the requested agreements or the provision of the description of the transaction (see below) is necessary to allow the Department of Justice to properly review the antitrust implications of assignments between restricted joint
In response to the comment, however, BOEM has noted in section 556.714(d) that a person submitting the requested agreements may request they be treated confidentially and BOEM will do so to the extent authorized by its regulations and applicable Departmental regulations. Further, as suggested by the commenter, section 556.714(a) allows the assignor/submitter to choose whether to submit the requested agreements or instead to provide BOEM with a description of the timing and nature of the transfer agreement, together with a statement certifying the truth of this description.
Section 556.715. Are there any interests I may transfer or record without BOEM approval? This section provides that a lessee may create, transfer, or assign an economic interest in a lease without BOEM approval, but that such transferor must send BOEM a copy of each instrument creating or transferring such a lease interest within 90 days after the last party executes the transfer instrument. Final rule section 556.715 (along with final rule section 556.808) is the successor to proposed rule section 256.620. Final rule section 556.715 and proposed section 256.620 are substantively similar, but the language of the proposed section was changed somewhat in the final rule. The proposed rule section stated that a lessee could create or transfer “carried working interests, overriding royalty interests, or payments out of production” without BOEM approval. In the final rule, instead of listing these three types of interests, section 556.715(a) states that a lessee may create, transfer, or assign “economic interests” without BOEM approval. The term “economic interest” is defined in final rule section 556.106 to encompass “any right to, or any right dependent upon, production of crude oil, natural gas, or liquefied petroleum products,” and includes, among others, the three types of interests listed in the proposed section.
Final rule section 556.714 also makes clear that the 90-day deadline set forth in prior section 556.64(a)(2) applies to filings memorializing transfers of economic interests. Prior section 556.64(a)(2) did not explicitly state that the 90-day deadline applies to such filings. The 90-day filing deadline appears in final rule section 556.701 with respect to the filings of transfers of record title interests and the severance of operating rights interests, and the final rule makes clear that the deadline also applies to filings of transfers of economic interests by so stating in final rule section 556.714.
BOEM received one comment on proposed section 256.620, which expressed concerns about confidentiality of documents and asked whether the section intended to require the submission of joint operating agreements to BOEM. The comment notes this provision,
Section 556.716. What must I do with respect to the designation of operator on a lease when a transfer of record title is submitted? This section provides the circumstances under which the transfer of a record title interest triggers the need to file a new designation of operator form with BOEM. Final rule section 556.716 is based on several prior and proposed rule sections. Proposed rule section 256.611 and prior section 556.62 explained how a record title, or other lease interest, may be transferred, but did not mention the need, which often arises upon such a transfer, to file a new designation of operator form. Prior regulation section 550.143 stated that, when there is a change of designated operator, you must file a new designation of operator form with BOEM. Prior section 550.143 was, however, in a part of the regulations that does not address transfers of lease interests. Because, as stated above, the need to file a new designation of operator form often arises when lease interests are transferred, BOEM added section 556.716 here in part 556, to augment section 550.143 and ensure that parties to a transfer are aware of their duties with respect to designation of an operator.
Section 556.800. As an operating rights owner, may I assign all or part of my operating rights interest? This section provides that an operating rights owner may assign all or part of its operating rights interests, subject to BOEM approval. Final rule section 556.800 repeats proposed rule section 256.612 with minor language changes.
Section 556.801. How do I seek approval of an assignment of my operating rights? This section describes the process by which an assignor of operating rights must obtain approval of such an assignment. Final rule section 556.801 is based on proposed rule section 256.613. The proposed rule section applied to all transfers of lease interests, but final rule section 556.801 applies only to assignments of operating rights from one operating rights owner to another, in accordance with the approach in the final rule to separate regulatory sections concerning transfers of operating rights and those concerning transfers of record title interests.
Both proposed rule section 256.613 and final rule section 556.801 require that BOEM approve transfers of operating rights. Documents memorializing such transfers must be filed within 90 days of the transfer. Both sections also note BOEM may consult with the Attorney General. The final rule section states the Regional Director will provide the form on which to record the transfer of operating rights, instead of citing particular forms as was done in the proposed rule. For the same reasons laid out above in the discussion of final rule section 556.716, final rule section 556.801 reiterates the requirement found at prior regulation section 550.143 that a new operating rights owner must file a designation of operator form.
One paragraph of final rule section 556.801 did not appear in the proposed rule: 556.801(c) states that if an operating rights owner transfers an undivided interest in its operating rights, that transfer creates a joint ownership of the operating rights in the transferor and the transferee. This provision did not appear in the proposed rule, but it is merely a description of the well-accepted legal consequences of such a transfer. As with a record title interest, an operating rights owner can transfer less than 100% of a certain part of its operating
Section 556.802. When would BOEM disapprove the assignment of all or part of my operating rights interest? Final rule section 556.802 sets forth the circumstances under which BOEM would disapprove an assignment of an operating rights interest. The final rule section is based on proposed rule section 256.611. The last sentence of proposed rule section 256.611 stated an assignment could be disapproved if the assignor or assignee had outstanding obligations under this chapter of the regulations. This provision appears at final rule section 556.802(a).
Final rule section 556.802 also contains two provisions, at paragraphs (b) and (c), which make clear that BOEM may disapprove an assignment of operating rights interests that is incorrect as to form or does not comport with the regulations. The former provision, 556.802(b), derives from proposed rule section 256.613, which listed the names and numbers of the forms that BOEM requires to be used to effectuate a transfer of record title or operating rights interests. Pursuant to the proposed rule, BOEM would accept only transfers submitted on—and consistent with—these forms.
In order to allow more flexibility and avoid restricting BOEM to a particular form name or number stated in the regulations, the final rule states the Regional Director will provide a form for use in transfers of record title or operating rights. As in the proposed rule, only the form provided by the Regional Director will be accepted by BOEM and only when completed correctly. Therefore, final rule section 556.802(b) makes clear that a transfer request submitted to BOEM may be rejected if not “acceptable as to form or content.” The latter provision, 556.802(c), provides that an attempted transfer that does not comport with the regulations and/or applicable law will be disapproved.
Section 556.803. What if I want to assign operating rights interests in more than one lease at the same time, but to different parties? This section addresses the assignment of operating rights interests in more than one lease to different parties. Final rule section 556.803 is based on proposed rule section 256.615. Both the first sentence of the proposed rule section and the final rule section address the situation where a lessee or other interest holder desires to transfer interests it owns in different leases to different parties. Final rule section 556.803, however, applies only to an operating rights owner who desires to simultaneously assign its operating rights in multiple leases. The limited application of final rule section 556.803 is in keeping with the final rule's separation of regulatory sections concerning transfers of record title by record title holders and those concerning transfers of operating rights by operating rights owners.
Section 556.804. What if I want to assign my operating rights in a lease to multiple parties? This section addresses the assignment of operating rights interests in one lease to more than one party. There was no analogous section in the proposed rule to final rule section 556.804, but the final rule section developed out of proposed rule section 256.615. That proposed rule section, also discussed immediately above, addressed the transfer of interests in
Section 556.805. What is the effect of an operating rights owner's assignment of operating rights on the assignor's liability? This final rule section states the long-established regulatory concept that after an assignment, the assignor remains liable for all monetary and non-monetary obligations that accrued before approval of the assignment. Final rule section 556.805 was found at proposed rule section 256.616. That proposed rule section applied to assignments in general, but final rule section 556.805 applies only to assignments of operating rights interests.
Section 556.806. What is the effective date of an assignment of operating rights? This section describes the effective date of the transfer of an operating rights interest in a lease. Final rule section 556.806 is a combination of proposed rule section 256.617 and prior section 556.62(c). In the proposed rule, analogous provision 256.617 stated an assignment is effective on the first day of the month following the request to assign, not following the date that BOEM approved the assignment. As explained above, in the discussion of final rule section 556.712, this left open the possibility that an assignment could ostensibly become “effective' before it was approved. Final rule section 556.806 clarifies that (unless requested otherwise, see below) the effective date of an assignment of an operating rights interest is the first day of the month after the month in which BOEM approves the transfer.
Final rule section 556.806, like proposed rule section 256.617, allows the parties to a transfer to specify a date on which their transfer will become effective. The proposed rule stated that BOEM would record the assignment as effective as of the date specified by the parties. The prior regulation, at section 556.62(c), did not affirmatively state that BOEM would accept the date specified by the parties. The prior regulation used the word “request” to refer to the parties' choice of a different effective date, and stated that the effective date would be specified in BOEM's approval. After further consideration of this issue, BOEM has decided, in the final rule, to retain the idea in the prior regulation, and to clarify any ambiguity by stating that BOEM must approve a request for a specified effective date for a transfer of an operating rights interest.
Both proposed rule section 256.617 and final rule section 556.806 also make clear that the transferor's obligations do not end until BOEM approves the transfer, no matter when the effective date is specified to be. In other words, the proposed and final rules clarify that if the parties to a transfer specify an effective date that falls before BOEM's approval of the transfer, this date is “effective” between the parties, but it does not have any effect on the obligations of the transferor to BOEM. The accrual of those obligations is ended only by BOEM's approval of the transfer.
Section 556.807. What is the effect of an assignment of operating rights on an assignee's liability? This section recites the obligations of an assignee, which include complying with the lease terms and regulations, remedying existing environmental and operational problems on the leasehold, and performing decommissioning obligations. Final rule section 556.807 repeats proposed rule section 256.618, but only with respect to an assignee of an operating rights interest. Proposed rule section 256.618 addressed both assignees of record title interests and operating rights interests, but consistent with the final rule's separate treatment
Section 556.808. As an operating rights owner, are there any interests I may assign without BOEM approval? This section provides that an operating rights owner may create, transfer, or assign economic interests without BOEM approval, but that for record keeping purposes, the operating rights owner must send BOEM a copy of each instrument creating or transferring such interests within 90 days after the last party executes the transfer instrument. Final rule section 556.808 (along with final rule section 556.715) is the successor to proposed rule section 256.620. Final rule section 556.808 is substantively similar to proposed section 256.620, but the final rule section applies to operating rights owners and contains somewhat different language from the proposed section. The proposed rule section stated that you could create or transfer “carried working interests, overriding royalty interests, or payments out of production” without BOEM approval. In the final rule, instead of listing these three types of interests, section 556.808(a) states that you may create, transfer, or assign “economic interests” without BOEM approval. The term “economic interest” is defined in final rule section 556.106 to encompass “any right to, or any right dependent upon, production of crude oil, natural gas, or natural gas liquids,” and includes, among others, the three types of interests listed in the proposed section.
Final rule section 556.808 also makes clear that the 90-day deadline set forth in prior regulation section 556.64(a)(2) also applies to filings memorializing transfers of economic interests. Prior section 556.64(a)(2) did not explicitly state that the 90-day deadline applies to such filings. The 90-day filing deadline appears in final rule section 556.801 with respect to the filings of assignments of operating rights interests, and the final rule makes clear that the deadline also applies to filings of transfers of economic interests by so stating in final rule section 556.808.
BOEM received one comment on proposed section 256.620, which expressed concerns about confidentiality of documents and asked whether the section intended to require the submission of joint operating agreements to BOEM. The comment notes that this provision,
Section 556.810. What must I do with respect to the designation of operator on a lease when a transfer of operating rights ownership is submitted? This section provides the circumstances under which the transfer of an operating rights interest triggers the need to file a new designation of operator form with BOEM. Final rule section 556.810 is a clarification and extension of several prior and proposed rule sections. Proposed rule section 256.611 and section 556.62 from BOEM's previous regulations explained how a record title or operating rights interest may be transferred, but did not mention the need, which often arises upon such a transfer, to file a new designation of operator form. Current section 550.143 states that, when there is a change of designated operator, you must file a new designation of operator form with BOEM. Current section 550.143 is, however, in a part of the regulations that does not address transfers of lease interests. Because the need to file a new designation of operator form often arises when lease interests are transferred, such as operating rights interests, BOEM added section 556.810 here in part 556 to augment prior BOEM regulation section 550.143, and to ensure that parties to an operating rights transfer are aware of their duties with respect to designation of an operator.
Part 560, section 560.500(b) in the final rule, addresses the electronic filing of documents concerning bonding or other financial assurance. The substance of final rule section 560.500(b) was in proposed rule section 256.503(c), which established the circumstances under which BOEM may require, rather than request, electronic document submission. The proposed and final rule sections provide that BOEM reserves the right to mandate the submission of financial assurance information electronically after publishing a 90 day-notice to that effect in the
Other than the electronic filing change that appears in final rule section 560.500(b) and minor administrative changes made to subpart I, as noted below, the regulatory sections in the subpart remain the same as in the prior regulations, where they are located at 30 CFR subpart I, consisting of prior sections 556.52 through 556.59.
Sections 556.900-556.907. These sections establish bonding requirements for the lessee of an OCS oil and gas or sulfur lease. BOEM is not making any substantive changes to Subpart I—Bonding or Other Financial Assurance—relative to the prior regulations. The only changes made to this subpart in the final rule are administrative or conforming changes necessary to avoid inconsistency with the rest of BOEM's regulations. These changes are: (1) Editorial improvement; (2) correction of the inadvertent deletion of cross-references to former MMS regulations now administered by BSEE and ONRR; (3) changes in the section numbers and conforming changes needed in the text due to the section number changes; (4) changing references to “Associate Director” to “Director,” as there are no “Associate Directors” within BOEM; and (5) consistently referring to decommissioning obligations as “decommissioning obligations,” rather than by listing some or all of the constituent parts of decommissioning.
Section 556.1000. Leases formerly eligible for a bonus or royalty credit. This section provides that bonus or royalty credits issued by BOEM pursuant to the Gulf of Mexico Energy Security Act of 2006 (GOMESA) (43 U.S.C. 1331 note) are no longer available. The deadline for applying for such a bonus or royalty credit was October 14, 2010; therefore, lessees may no longer apply for such credits. The proposed rule contained several sections addressing these credits because it was published in May 2009, before the October 2010 deadline. The final rule has only one section addressing these credits—section 556.1000.
Although the GOMESA lease exchange/credit program is no longer active, section 556.1000 has been included in the final rule because
Section 556.1100. How does a lease expire? This section provides the circumstances under which a lease will expire at the end of its primary term. Final section 556.1100 is substantively the same as proposed rule section 256.700, with minor wording changes. The final rule section is also divided into two paragraphs, one addressing oil and gas leases, and one addressing sulfur leases.
BOEM received one comment noting that proposed section 256.700 listed the ways to maintain a lease beyond the primary term, but failed to list production from unitized leases as one of those ways. The comment suggested that BOEM add in section 256.700 a reference to production from unitized leases as one of the ways to maintain a lease. Final rule section 556.1100 refers back to final rule section 556.601 for the ways in which to maintain a lease beyond the primary term, which includes, at 556.601(e), production from unitized leases.
Section 556.1101. May I relinquish my lease or an aliquot part thereof? Final rule section 556.1101 repeats the substance of proposed rule section 256.701. Both sections name the form that must be filed in triplicate by all lessees to effect a lease relinquishment and both note that the relinquishment is effective on the date of filing. Both sections also make clear that a relinquishment does not relieve the relinquisher(s) of any accrued obligations, but to express this concept the final rule section has retained the language in prior section 556.76, rather than using the proposed language.
Prior section 556.76 also stated that no filing fee is required for a relinquishment. The proposed rule, however, said nothing on this subject. It did not contain the statement in the prior regulations that no filing fee is required, but neither did it say that a filing fee was required for a relinquishment. The final rule retains the “no filing fee” statement from prior regulations at section 556.76.
Section 556.1102. Under what circumstances will BOEM cancel my lease? This section provides the circumstances under which BOEM may cancel a producing or a non-producing OCS lease. Final rule section 556.1102 contains the substance of proposed rule section 256.702, with some minor wording changes for clarity. Both sections state that failure to comply with a provision of a lease or of the regulations may result in lease cancellation, but the final rule section also makes clear that failure to provide requested financial assurance may result in lease cancellation or assessment of civil penalties. (See final rule section 556.1102(f).) Final rule section 556.1102(f) is a clarification of proposed rule subsections 256.702(b) and (c). Both these subsections state that failure to comply with any provision of the regulations may result in lease cancellation, and this includes failure to comply with those regulations requiring the maintenance of financial assurance.
Proposed rule section 256.702 generally referred to section 5(a) of OCSLA (43 U.S.C. 1334(a)), whereas final rule section 556.1102 was written to more closely follow sections 5(a)(2)(A) and (B) of OCSLA (43 U.S.C. 1334(a)(2)(A) and 1334(a)(2)(B)). Both the final and proposed rule sections repeat section 5(a)'s directive that a lease may be cancelled any time BOEM finds that continued activity will probably cause harm or damage to
Subpart L consists of two final rule sections, 556.1200 and 556.1201, which have been retained from prior sections 556.79 and 556.80, respectively. These two sections were not in the proposed rule. The Preamble to the proposed rule stated that prior section 256.79 (now 556.79) was “[e]liminated as unnecessary repetition” of OCSLA section 6(b) (43 U.S.C. 1335(b)) and prior section 256.80 (now 556.80) was “covered in 30 CFR part 281” (now part 581).
BOEM has reconsidered its decision to eliminate subpart L from its regulations, and, for the reasons outlined below, has decided to retain it in this final rule.
Section 556.1200. Effect of regulations on lease. Final rule section 556.1200 makes clear the relationship between BOEM's regulations and the lease provisions of those leases maintained under section 6 of OCSLA (43 U.S.C. 1335). Section 6 of OCSLA applies to a specific group of leases—State-issued OCS leases issued before December 21, 1948.
BOEM has retained this provision, derived from prior section 556.79, even though it includes some repetition of Section 6 of OCSLA. Retaining this in final rule section 556.112 is helpful to BOEM's stakeholders because it clarifies the interplay between BOEM's regulations and Section 6 leases.
Section 556.1201. Section 6(a) leases and leases other than those for oil, gas, or sulfur. BOEM has determined that the proposed rule was incorrect in asserting that prior part 556, subpart L, which consisted of prior sections 556.79 and 556.80, was an unnecessary duplication of provisions in another part of the regulations. BOEM has therefore decided to retain, in final rule section 556.1201, the substance of prior section 556.80. Final rule section 556.1201 states that the existence of a Section 6 oil and gas lease does not preclude the issuance, in the same area, of other types of leases under OCSLA. BOEM has determined that this section should be retained to clarify the circumstances surrounding Section 6 leases.
Section 556.1300. Environmental studies. Subpart M—Environmental Studies consists of section 556.1300 in the final rule and provides that BOEM will conduct studies of any area or region included in any oil and gas lease sale as needed to assess and manage impacts on the human, marine and coastal environments, which may be affected by OCS oil and gas or other mineral activities in such area or region. Subpart M in the previous regulations consisted of section 556.82. The proposed rule deleted subpart M as an “unnecessary recitation of internal procedures,” but section 20(c) of OCSLA specifically states that the “Secretary shall, by regulation, establish procedures for carrying out his duties [to conduct environmental studies] under this section.” (43 U.S.C. 1346(c)). BOEM has determined to retain subpart M to comply with section 20 of OCSLA and to set forth in the regulations, procedures for the conduct of environmental studies with minor revisions to clarify text.
Prior part 559 was moved into final rule part 560, as explained below, in the discussion of final rule part 560.
The final rule updates the authority citation for part 560 and amends the Table of Contents for part 560 by removing prior subpart D, reserving the subpart, and adding new subparts C and E.
Also, in this final rule, BOEM has moved the definitions from prior part 559 into final rule part 560 and deleted part 559. Prior part 559 consisted of only two sections. The first section, 559.001, stated that “[t]he purpose of this part 559 is to define various terms appearing in part 560.” The second section, 559.002, listed these definitions. This relocation did not appear in the proposed rule, but it is merely an administrative change, which streamlines the regulations and does not trigger the need for notice and comment.
The wording of the definition of “person” in part 560 has been made consistent with that in part 556, but no change is being made to the other definitions except their re-location within the regulations.
Section 560.100. Authority. This section provides a listing of the statutes that provide the legal basis for the regulations promulgated under this part. The authority provisions of part 560 have been revised in this new section, and the titles of the public laws corresponding to the relevant statutes have been added. FOGRMA (30 U.S.C. 1701-1759) has been updated to include the amendments made to it by the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996, (FOGRSFA, 30 U.S.C. 1701 note).
Section 560.101. What is the purpose of this part? This final rule section retains the language of section 560.1 in the prior regulations, with no changes, but redesignated.
Section 560.102. What definitions apply to this part? This section consolidates and updates the definitions previously located in part 559 with the definitions previously located in section 560.2.
Section 560.103. What is BOEM's authority to collect information? This section provides that BOEM may not conduct or sponsor a collection of information unless the information collection displays a currently valid OMB control number, and specifies the circumstances under which comments regarding any aspect of the collection of information under this part may be submitted to BOEM. This section is unchanged from section 560.3 but has been redesignated.
Sections 560.200-560.230. These provisions establish the bidding systems that BOEM may use to offer and sell Federal leases for the exploration, development, and production of oil and gas resources located on the OCS. No changes were made to this subpart, except that all section numbers have been changed to conform to the numbering convention used throughout the final rule.
Section 560.300. Operating allowances. The final rule includes a new subpart C, which consists of one section—556.300—that reestablishes a provision concerning operating allowances in the BOEM regulations. Operating allowance provisions were originally added into MMS (later BOEMRE) regulations by RIN 1010-AB93, 61 FR 3800,
Subpart C re-establishes the operating allowance provisions in BOEM's regulations. It does not make any change to the regulatory provisions with respect to what sort of operating allowance would be available or when one might be granted.
Both the proposed and final rules amend part 560 by removing subpart D, which concerned joint bidding. All the provisions in the prior subpart D have been moved to part 556 in the final rule (see sections 556.511-556.515, and 556.106, definitions of “average daily production,” “barrel,” “crude oil,” “economic interest,” “joint bid,” “natural gas,” “natural gas liquids,” “owned,” “single bid,” “six-month bidding period,” and “statement of production”). The regulation sections that were in part 560, subpart D, more appropriately belong in part 556, subpart E, under the subheading, “Restrictions on Joint Bidding,” because subpart E contains the full panoply of regulations relating to the restrictions on joint bidding. There is no clear rationale supporting retention of these sections in part 560 as well, and including these provisions twice in the regulations may cause confusion. Therefore, part 560, subpart D is being removed.
In part 560, the final rule includes a new subpart E, “Electronic Filings,” which provides that BOEM may notify lessees and other parties that it will allow or request the submission of information electronically through BOEM's secure electronic filing system, through an alternate secure electronic filing system supported and maintained by the Department, or through some other electronic filing system that BOEM has approved for this purpose. This subpart did not appear in the proposed rule, nor did it appear in the prior regulations, but notice and an opportunity to comment on these new provisions are unnecessary because the subpart does not impose any requirements. Rather, it provides that anyone submitting documents to BOEM may do so electronically. The electronic-submittal option will likely reduce the burden on those making the submissions. Moreover, the option furthers the Federal government's move toward all-electronic document production, submission, and filing, a goal evidenced by the Government Paperwork Elimination Act (GPEA), Public Law 105-277, 112 Stat. 2681 (1998), and the U.S. Office of Management and Budget's guidance for implementing that Act (Memorandum 00-10 OMB Procedures and Guidance on Implementing the Government Implementation of the Government Paperwork Elimination Act, April 25, 2000). Because subpart E imposes no requirements on the public, it constitutes a procedural rule that does not require notice and comment.
Subpart E consists of three sections, which are individually addressed below.
Section 560.500. Electronic documents and data transmission. Final rule section 560.500 lists the types of information that may be filed electronically. The section also makes clear that if BOEM sends a document in an electronic format, return of the document using the same format or in print is acceptable (560.500(c)), and that BOEM may electronically approve or execute documents referenced in this section (560.500(d)).
Final rule section 560.500(b) repeats proposed rule section 256.503(c), which
Section 560.501. How long will the confidentiality of electronic document and data transmissions be maintained? Final rule section 560.501 states that electronically-submitted confidential information will be maintained as confidential for the same amount of time that corresponding non-electronic information would be so maintained.
Section 560.502. Are electronically filed document transmissions legally binding? Final rule section 560.502 has been included to ensure that electronic submission will not be a bar to legal viability. Pursuant to section 560.502, documents that are properly submitted through an approved electronic format will be considered legally binding (assuming they are properly prepared, executed, or whatever else may be necessary in each individual case), without the need to also submit a paper copy of such document. In other words, if all else has been done properly with regard to a document submission, the fact that it has been submitted electronically will not bar it from being legally binding.
Final rule section 560.502 was not in the proposed rule and is being included in the final rule without a period of notice and comment. The Government Paperwork Elimination Act, found within the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Public Law 105-277, 112 Stat. 2681 (1999)), at sections 1701
Further, section 7001(a) of the Electronic Signatures in Global and National Commerce Act (ESIGN) (15 U.S.C. 7001-7031) states: “Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II of this chapter), with respect to any transaction in or affecting interstate or foreign commerce—(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.”
Final rule section 560.502 is administrative and serves to reduce the burden on those submitting filings to BOEM, but more importantly it is necessary to effectuate BOEM's electronic filing system and to ensure electronic submissions are considered legally valid documents.
We do not provide responses to comments on subpart I because no substantive changes were made to that subpart as part of this final rule.
E.O. 13563,
E.O. 13563 supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in E.O. 12866 of September 30, 1993. As stated in that E.O., and to the extent permitted by law, each agency must, among other things: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts, and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing information upon which the public can base choices, or providing economic incentives to encourage the desired behavior, such as user fees or marketable permits.
This final rule is not a significant rule, as determined by the Office of Management and Budget (OMB), and is not subject to review under E.O. 12866,
(1) This final rule does not have an annual effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The rule rewrites 30 CFR part 556 in plain language, as well as portions of 30 CFR parts 550 and 560, and contains similar reporting and recordkeeping requirements and attendant costs as the prior regulations. A cost-benefit analysis was not performed because this is a rule of administrative procedure for which such an analysis is not required. However, an overall economic analysis was performed pursuant to the Regulatory Flexibility Act.
(2) This rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. Nominal user fees imposed by the rule are not material in size or nature. The final rule includes a new fee for recording certain secondary lease interests, $29, and continues existing fees for submitting non-required documents, $29, and requesting approval of the assignment or transfer of certain lease interests, $198.
(4) This rule does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866. The final rule supersedes the existing regulations.
The Department certifies that this final rule does not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601-612).
The changes in this final rule affect lessees and potential lessees, of which there are approximately 130 different companies. These companies are generally classified under the North American Industry Classification System (NAICS) Code 211111, which includes companies that extract crude petroleum and natural gas. For this NAICS code classification, a small
The costs associated with the information collection (IC) activities related to this rulemaking should not have any significant economic effect on small businesses. This rule contains most of the same burden hour requirements and non-hour cost burdens as were in effect with BOEM's prior regulations. The changes in reporting requirements that are implemented with this rule do not significantly increase the IC burden on respondents—large or small. BOEM estimates an annual cumulative increase of 2,441 hours in the paperwork burden for all lessees over that imposed by the prior regulations. There is also a new $29 non-hour cost burden for recording certain secondary lease interests resulting in an annual increase of $20,300 ($29 × an estimated 700 filings). A regulatory flexibility analysis is not required. Accordingly, a small entity compliance guide is also not required.
This final rule is not a major rule under 5 U.S.C. 801-808), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million or more;
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.
The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of BOEM, call 1-888-734-3247. You may comment to the Small Business Administration (SBA) without fear of retaliation. Allegations of discrimination/retaliation filed with the Small Business Administration will be investigated for appropriate action.
This final rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The final rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) is not required.
Under the criteria in E.O. 12630,
Under the criteria in E.O. 13132,
This rule complies with the requirements of E.O. 12988,
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
Under the criteria in E.O. 13175,
This rule contains new IC requirements; therefore, a submission to OMB under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521) was required. The OMB has approved the IC for the final rulemaking and assigned OMB Control Number 1010-0006 for a total of 19,454 burden hours and $766,053 non-hour cost burdens.
The title of the IC is “Leasing of Sulfur or Oil and Gas in the Outer Continental Shelf (30 CFR part 550, part 556, and part 560)”. Respondents are Federal sulfur or oil and gas lessees and/or operators. Some responses to this IC are required to obtain or retain a benefit, and some are mandatory. The frequency of response varies but is primarily on occasion. The IC does not include questions of a sensitive nature. BOEM will protect proprietary information according to section 26 of OCSLA; the Freedom of Information Act (5 U.S.C. 552), its implementing regulations at 43 CFR part 2; and the regulations at 30 CFR 556.104(b) and 550.197, addressing proprietary data and data and information to be made available to the public or for limited inspection.
This rulemaking is a partial rewrite of 30 CFR part 556, Leasing of Sulfur or Oil and Gas and Bonding Requirements in the Outer Continental Shelf and of 30 CFR part 560, OCS Oil and Gas Leasing. It also refers to, but does not change current requirements and burdens already approved by OMB under 30 CFR part 550, subpart A (1010-0114). BOEM uses the information collected in the rulemaking to help determine specific areas of leasing interest, to determine if applicants are qualified to hold leases in the OCS, to identify parties ineligible to bid jointly, and to track owners of, and operators on, leaseholds.
In response to the proposed rule (74 FR 25177, May 27, 2009), BOEM received comments from the American Petroleum Institute, Shell Exploration and Production Company, Chevron North America Exploration and Production, Anglo Suisse Offshore Partners, LLC. (and Anglo Suisse Texas Offshore Partners, LLC.), Dynamic Offshore Resources, RLI Insurance Company, and two private citizens. Comments that addressed aspects of the information collection for this rulemaking are summarized below. All comments are addressed in detail in the preamble of this final rule.
Commenting on proposed rule section 256.404, one company indicated that it is burdensome to submit merger or name change information and that BOEM can obtain the information from the Secretary of State in most States. In the final rule, BOEM is retaining the requirement to submit such information in order to address the problems that the Bureau has had in the past with name/
Concerning proposed rule sections 256.619 and 256.620, one company questioned submitting commercial agreements relating to certain transfers between restricted joint bidders because of the information's sensitivity. In final rule section 556.714, BOEM provided an option for the submission of a description of the timing and nature of the agreement(s) by which the assignor or transferor acquired the interest it now wishes to transfer. No change in the hour burden resulted. However, partially in response to the comment, BOEM added a general provision to the part (section 556.104(b)) to protect proprietary information (+ 125 hours).
In addition, between the proposed and final rules, several actions occurred that affected the information collection.
• The MMS was reorganized, per Secretarial Orders 3302 and 3299, resulting in a realignment of the regulations, with the leasing regulations going to BOEM, under 30 CFR chapter 5 (
• The IC burden for 30 CFR part 550, subpart J, bonding requirements for pipelines and pipeline rights-of-way, was consolidated into the collection being revised for this rulemaking for 30 CFR part 556 (1010-0006) due to the regulations realignment. The consolidation was approved by OMB on 11/14/2011.
• The proposed rule included a total rewrite of 30 CFR part 556; however, the final rule does not make substantive revisions to the regulations for general and supplemental bonding in prior part 556 (subpart I). After the proposed rule was published, questions arose about possible inconsistencies between the revised bonding regulations and p regulations for oil-spill financial responsibility under 30 CFR part 553. Also, since the publication of the proposed rule, BOEM has decided to engage in an overhaul of its financial assurance processes, and subpart I will be revised in a separate rulemaking. Therefore, the regulations and the associated IC burden for 30 CFR part 550, subpart I, will remain in effect, but the sections in subpart I have been renumbered to fit within the numbering scheme of this rule (
• In the final rule, BOEM rearranged discussions to make the regulations easier to read and follow. Thus, all rule sections and citations have been renumbered from the proposed rule, as explained in the preamble of the final rule.
• The information collection for prior 30 CFR part 556 regulations (1010-0006) was renewed by OMB, thereby updating burden hours based on public outreach. BOEM has therefore used those updated estimates where relevant instead of those used in the proposed rulemaking.
• The proposed rule included regulatory text concerning the reporting of decommissioning costs in 30 CFR part 250, subpart Q, and text concerning reports on lease-term pipelines in section 256.621. Due to the realignment of regulations and bureau responsibilities, BOEM removed these requirements from the final rule as they were addressed in the Bureau of Safety and Environmental Enforcement (BSEE) regulations (−820 hours for removing Subpart Q and −1,500 hours for removing section 256.621 in the final rule).
• The final rule also removed the provisions under proposed rule sections 256.902(a) and 256.905 for requesting/transferring a bonus or royalty credit, because the program has officially ended (−2 hours from current collection).
• BOEM also divided the IC requirements for commenting on the 5-Year Program and responding to Calls for Information, etc. (sections 556.201-204 and sections 556.301-302) into general (not considered IC per the PRA) and specific, in accordance with the currently approved collection for part 556 (+ 596 hours). Where applicable, all estimates were updated according to the recent Office of Management and Budget (OMB) approved renewal of the 30 CFR part 556 information collection.
• BOEM also included a burden that was overlooked in the proposed rule (section 256.100, now section 556.302(d)) for requesting a summary of interest on Calls for Information (+ 5 hours).
• The proposed rule (section 256.620) introduced a new cost recovery fee ($27) for filing required documents for record purposes. In the final rule (section 556.715(a)), the fee has been increased to $29 in accordance with changes BOEM made, due to inflation, to other such fees on January 28, 2013 (78 FR 5837).
• To make the regulations easier to follow, in the final rule BOEM split the discussion (requirements and associated fee) of assignment/transfer of record title and that of operating rights interests (30 CFR part 256, subpart G, in the proposed rule) into two subparts (30 CFR part 556, subparts G and H). With this reorganization, BOEM discovered that it had not properly counted the number of submissions for transfers of operating rights; therefore, in the final rule, BOEM is reporting an adjustment increase for such transfers of record title/operating rights (+ 421 hours; + $83,358 non-hour costs).
In addition, to streamline activities, reduce the burden in the future, and assist respondents, the final rule includes:
• A clarification of the proposed rule (section 256.611) and BOEM's prior regulations (section 556.62), which both explained how a record title, or other lease interest may be transferred, but did not mention the need to file a new Designation of Operator form (BOEM-1123, 30 CFR part 550, subpart A), which often arises when a lease interest is transferred. This clarification in part 556 (sections 701(c); 715(b); 801(b); 810(b)) will result in a one-time increase in the number of submissions after the rule becomes effective (+ 80 hours); otherwise the requirement is covered under OMB Control No. 1010-0114.
• A clarification that geophysical statements and maps are included with bid submissions (sections 556.500-501). This requirement and its hour burden have always been part of the bid process but not specifically stated (no change in hour burden).
• A provision (section 556.107) to allow a company's one-time submission of documentation, with a corporate seal, to establish the legal status of future submissions without such seals, where such seals would otherwise be required (+ 67 hours as a one-time burden but expected to reduce the net burden for companies in the future).
• An expansion of a provision from the proposed rule (section 256.503(c)) to allow implementation of electronic submission systems (
The following table shows the breakdown of the hour and non-hour cost burdens for this final rulemaking.
[
An agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. The public may comment, at any time, on the accuracy of the IC burden estimate in this rule and may submit any comments to the Information Collection Clearance Officer, Office of Policy, Regulations, and Analysis; Bureau of Ocean Energy Management; U.S. Department of the Interior; VAM-BOEM DIR; 45600 Woodland Rd, Sterling, Virginia 20166.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. BOEM has considered the rule under the criteria of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4370h) and 516 Departmental Manual 15. This rule meets the criteria set forth in 43 CFR 46.210(5) for a Departmental “categorical exclusion” in that this final rule is “. . . of an administrative, financial, legal, technical, or procedural nature or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis. . . .” This rule also meets the criteria set forth in 516 Departmental Manual 15.4(C)(1) for a BOEM “categorical exclusion” in that its impacts are limited to administrative, economic or technological effects. Further, BOEM has analyzed this rule to determine if it meets any of the extraordinary circumstances that require an environmental assessment or an environmental impact statement as set forth in 43 CFR 46.215 and has concluded that it does not.
In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (44 U.S.C. 3516-3521), Public Law 106-554, app. C section 515, 114 Stat. 2763, 2763A-153-154).
This rule is not a significant energy action under the definition in E.O. 13211,
Administrative practice and procedure, Continental shelf, Environmental impact statements, Environmental protection, Federal lands, Government contracts, Investigations, Mineral resources, Oil and gas exploration, Outer continental shelf, Penalties, Pipelines, Reporting and recordkeeping requirements, Rights-of-way, Sulfur.
Administrative practice and procedure, Continental shelf, Environmental protection, Federal lands, Government contracts, Intergovernmental relations, Oil and gas exploration, Outer continental shelf, Mineral resources, Rights-of-way, Reporting and recordkeeping requirements.
Continental shelf, Federal lands, Federal lease, Gas, Government contracts, Mineral resources, Mineral royalties, Oil and gas exploration, Outer continental shelf, Reporting and recordkeeping requirements.
Continental shelf, Federal lands, Government contracts, Mineral resources, Mineral royalties, Oil and gas exploration, Outer continental shelf, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Bureau of Ocean Energy Management, (BOEM) amends 30 CFR parts 550, 556, 559 and 560 as follows:
31 U.S.C. 9701, 43 U.S.C. 1334.
BOEM will regulate all activities under a lease, a right-of-use and easement, or a right-of-way to:
(a) Promote the orderly exploration, development, and production of mineral resources;
(b) Prevent injury or loss of life;
(c) Prevent damage to or waste of any natural resource, property, or the environment; and
(d) Ensure cooperation and consultation with affected States, local governments, other interested parties, and relevant Federal agencies.
The Director may require additional measures to ensure the use of Best Available and Safest Technology (BAST) as identified by BSEE:
(a) To avoid the failure of equipment that would have a significant effect on safety, health, or the environment;
(b) If it is economically feasible; and
(c) If the incremental benefits justify the incremental costs.
The revisions and addition read as follows:
BOEM will protect data and information that you submit under this chapter, as described in this section. * * *
(b) * * *
(c) BOEM may allow limited data and information inspection, but only by a person with a direct interest in related BOEM decisions and issues in a specific geographic area, and who agrees in writing to maintain the confidentiality of geological and geophysical (G&G) data and information submitted under this part that BOEM uses to:
(1) Promote operational safety;
(2) Protect the environment; or
(3) Make field determinations.
(d) No proprietary information received by BOEM under 43 U.S.C. 1352 will be transmitted to any affected State unless the lessee, or the permittee and all persons to whom such permittee has sold such information under promise of confidentiality, agree to such transmittal.
(a) Any area of the OCS, which has been appropriately platted as provided in paragraph (b) of this section, may be leased for any mineral not included in an existing lease issued under the Act or meeting the requirements of subsection (a) of section 6 of the Act. Before any lease is offered or issued an area may be:
(1) Withdrawn from disposition pursuant to section 12(a) of the Act; or
(2) Designated as an area or part of an area restricted from operation under section 12(d) of the Act.
(b) BOEM will prepare leasing maps and official protraction diagrams of areas of the OCS. The areas included in each mineral lease will be in accordance with the appropriate leasing map or official protraction diagram.
30 U.S.C. 1701 note, 30 U.S.C. 1711, 31 U.S.C. 9701, 42 U.S.C. 6213, 43 U.S.C. 1331 note, 43 U.S.C. 1334, 43 U.SC. 1801-1802.
The management of Outer Continental Shelf (OCS) resources is to be conducted in accordance with the findings, purposes, and policy directions provided by the Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA or the Act) (43 U.S.C. 1332, 1801, 1802), and other executive, legislative, judicial and departmental guidance. The Secretary of the Interior (the Secretary) will consider available environmental information in making decisions affecting OCS resources.
The purpose of the regulations in this part is to establish the procedures under which the Secretary will exercise the authority to administer a leasing program for oil and gas, and sulfur. The regulations pertaining to the procedures under which the Secretary will exercise the authority to administer a program to grant rights-of-use and easements are found in part 550 of this chapter.
(a) The Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1334) authorizes the Secretary of the Interior to issue, on a competitive basis, leases for oil and gas, and sulfur, in submerged lands of the OCS. The Act authorizes the Secretary to grant rights-of-way and easements through the submerged lands of the OCS.
(b) The Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA) (30 U.S.C. 1711) governs oil and gas royalty management and requires the development of enforcement practices to ensure the prompt and proper collection of oil and gas revenues owed to the U.S.
(c) The Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 9701) authorizes fees and charges for Federal government services.
(d) The Energy Policy and Conservation Act of 1975 (42 U.S.C. 6213) prohibits joint bidding by major oil and gas producers.
(e) The Gulf of Mexico Energy Security Act of 2006 (GOMESA) (Pub. L. 109-432, 43 U.S.C. 1331 note):
(1) Shares leasing revenues with Gulf producing states and the Land & Water Conservation Fund for coastal restoration projects; and
(2) Allows companies to exchange certain existing leases in moratorium areas for bonus and royalty credits to be used on other Gulf of Mexico leases.
The following includes some of the major regulations relevant to offshore oil and gas development:
(a) For other applicable Bureau of Ocean Energy Management (BOEM) oil and gas regulations, see 30 CFR parts 550 through 560.
(b) For Bureau of Safety and Environmental Enforcement (BSEE) regulations governing exploration, development and production, and oil spill response, see 30 CFR chapter II.
(c) For Office of Natural Resources Revenue (ONRR) regulations related to rentals, royalties, and fees, see 30 CFR chapter XII.
(d) For BOEM regulations governing the appeal of an order or decision issued under the regulations in this part, see 30 CFR part 590.
(e) For regulations on the National Environmental Policy Act (NEPA), see 40 CFR 1500-1508 and 43 CFR part 46.
(f) For ocean dumping sites, see the U.S. Environmental Protection Agency (USEPA) listing—40 CFR part 228.
(g) For air quality, see USEPA regulations at 40 CFR part 55 and BOEM regulations at 30 CFR part 550 subparts B and C.
(h) For related National Oceanic and Atmospheric Administration (NOAA) programs, see:
(1) Marine Sanctuary regulations, 15 CFR part 922;
(2) Fishermen's Contingency Fund, 50 CFR part 296;
(3) Coastal Zone Management Act (CZMA), 15 CFR part 930;
(4) Essential Fish Habitat, 50 CFR 600.90.
(i) For U.S. Coast Guard (USCG) regulations on the oil spill liability of vessels and operators, see 33 CFR parts 132, 135, and 136.
(j) For USCG regulations on port access routes, see 33 CFR part 164.
(k) For Department of Transportation regulations on offshore pipeline facilities, see 49 CFR part 195.
(1) For Department of Defense regulations on military activities on offshore areas, see 32 CFR part 252.
(a)
(2) BOEM collects this information to determine if an applicant seeking to obtain a lease or right-of-use and easement (RUE) on the OCS is qualified to hold such a lease or RUE and to determine whether any such applicant can meet the monetary and non-monetary requirements associated with a lease or RUE. Responses to this information collection are either required to obtain or retain a benefit or are mandatory under OCSLA (43 U.S.C. 1331-1356a). BOEM will protect proprietary information collected according to section 26 of OCSLA (43 U.S.C. 1352), and this section.
(3) The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires us to inform the public that an agency may not conduct or sponsor, and that no one is required to respond to, a collection of information unless it displays a current and valid OMB control number.
(4) Send comments regarding any aspect of the collection of information under this part, including suggestions for reducing the burden, to the Information Collection Clearance Officer, Bureau of Ocean Energy Management, by mail at 45600 Woodland Road, Sterling, VA 20166 or by email to
(b)
(2) No proprietary information received by BOEM under 43 U.S.C. 1352(c) will be transmitted to any affected State unless the lessee, to whom such information applies, or the permittee and all persons, to whom such permittee has sold such information under promise of confidentiality, agree to such transmittal.
(c) Proprietary information in response to a Call for Information and Nominations (Call).
(1) A specific indication of interest in an area received in response to a Call issued by the Secretary is proprietary information.
(2) Notwithstanding paragraph (c)(1) of this section, BOEM may provide a summary of indications of interest in areas received in response to a Call for a proposed sale.
(a) Acronyms and terms used in this part have the following meanings:
(b) As used in this part, each of the terms and phrases listed below has the meaning given in the Act or as defined in this section.
(i) The laws of which are declared, pursuant to section 4(a)(2) of OCSLA (43 U.S.C. 1333(a)(2)), to be the law of the United States for the portion of the OCS on which such activity is, or is proposed to be, conducted;
(ii) Which is, or is proposed to be, directly connected by transportation facilities to any artificial island or structure referred to in section 4(a)(1) of OCSLA (43 U.S.C. 1333(a)(1));
(iii) Which is receiving, or in accordance with the proposed activity will receive, oil for processing, refining, or transshipment that was extracted from the OCS and transported directly to that State by means of one or more vessels or by a combination of means, including a vessel;
(iv) Which is designated by the Secretary as a State in which there is a substantial probability of significant impact on or damage to the coastal, marine, or human environment; or a State in which there will be significant changes in the social, governmental, or economic infrastructure resulting from the exploration, development, and production of oil and gas anywhere on the OCS; or
(v) In which the Secretary finds that because of such activity, there is, or will be, a significant risk of serious damage, due to factors such as prevailing winds and currents, to the marine or coastal environment in the event of any oil spill, blowout, or release of oil or gas from one or more vessels, pipelines, or other transshipment facilities.
(i) For purposes of computing production and reporting of natural gas, 5,626 cubic feet of natural gas at 14.73 pounds per square inch equals one barrel.
(ii) For purposes of computing production and reporting of natural gas liquids, 1.454 barrels of natural gas liquids at 60 °F equals one barrel of crude oil.
(i) Condensate—natural gas liquids recovered from gas well gas (associated and non-associated) in separators or field facilities; or
(ii) Gas plant products—natural gas liquids recovered from natural gas in gas processing plants and from field facilities. Gas plant products include the following, as classified according to the standards of the Natural Gas Processors Association (NGPA) or the American Society for Testing and Materials (ASTM):
(A) Ethane—C
(B) Propane—C
(C) Butane—C
(D) Butane-Propane Mixtures—All products covered by NGPA specifications for butane-propane mixtures;
(E) Natural Gasoline—A mixture of hydrocarbons extracted from natural gas, that meets vapor pressure, end point, and other specifications for natural gasoline set by NGPA;
(F) Plant Condensate—A natural gas plant product recovered and separated as a liquid at gas inlet separators or scrubbers in processing plants or field facilities; and
(G) Other Natural Gas plant products meeting refined product standards (
(i) With respect to crude oil—having either an economic interest in or a power of disposition over the production of crude oil;
(ii) With respect to natural gas—having either an economic interest in or a power of disposition over the production of natural gas; and
(iii) With respect to natural gas liquids—having either an economic interest in or a power of disposition over any natural gas liquids at the time of completion of the liquefaction process.
(i) From May 1 through October 31; or
(ii) from November 1 through April 30.
(i) The average daily production in barrels of crude oil, natural gas, and natural gas liquids which it owned worldwide;
(ii) The average daily production in barrels of crude oil, natural gas, and natural gas liquids owned worldwide by every subsidiary of the reporting person;
(iii) The average daily production in barrels of crude oil, natural gas, and natural gas liquids owned worldwide by any person or persons of which the reporting person is a subsidiary; and
(iv) The average daily production in barrels of crude oil, natural gas, and natural gas liquids owned worldwide by any subsidiary, other than the reporting person, of any person or persons of which the reporting person is a subsidiary.
(a) The table in this paragraph shows the fees you must pay to BOEM for the services listed. BOEM will adjust the fees periodically according to the Implicit Price Deflator for Gross Domestic Product and publish a document showing the adjustment in the
(b) Evidence of payment via pay.gov of the fees listed in paragraph (a) of this section must accompany the submission of a document for approval or filing, or be sent to an office identified by the Regional Director.
(c) Once a fee is paid, it is nonrefundable, even if your service request is withdrawn.
(d) If your request is returned to you as incomplete, you are not required to submit a new fee with the amended submission.
(e) The pay.gov Web site is accessible at
(f) The fees listed in the table above apply equally to any document or information submitted electronically pursuant to part 560, subpart E, of this chapter.
(a) If you electronically submit to BOEM any document or information referenced in § 560.500 of this chapter, any requirement to use a corporate seal under this chapter will be satisfied, and you will not need to affix your corporate seal to such document or information, if:
(1) You properly file with BOEM a paper, with a corporate seal and the signature of the authorized person(s), stating that electronic submissions made by you will be legally binding, as set forth in § 560.502 of this chapter; and
(2) You make electronic submissions to BOEM through a secure electronic filing system that conforms to the requirements of § 560.500; or,
(b) You may file with BOEM a non-electronic document, containing a corporate seal and the signature of an authorized person(s), attesting that future documents and information filed by you by electronic or non-electronic means will be legally binding without an affixed corporate seal. If you file such a non-electronic attestation document with BOEM, any requirement for use of a corporate seal under the regulations of this chapter will be satisfied, and you will not need to affix your corporate seal to submissions where they would have been otherwise required.
(c) If the State or territory in which you are incorporated does not issue or require corporate seals, the document referred to in paragraphs (a) and (b) of this section need not contain a corporate seal, but must still contain the signature of the authorized person(s), a statement that the State in which you are incorporated does not issue or require corporate seals, and a statement that submissions made by you will be legally binding.
(d) Any document, or information submitted without corporate seal must still contain the signature of an individual qualified to sign who has the requisite authority to act on your behalf.
(e) Any document or information submitted pursuant to this section is submitted subject to the penalties of 18 U.S.C. 1001, as amended by the False Statements Accountability Act of 1996.
Section 18(a) of OCSLA (43 U.S.C. 1344(a)), requires the Secretary to prepare an oil and gas leasing program that consists of a five-year schedule of proposed lease sales to best meet national energy needs, showing the size, timing, and location of leasing activity as precisely as possible. BOEM prepares the five year schedule of proposed lease sales consistent with the principles set out in section 18(a)(1) and (2)(A)-(H) of OCSLA (43 U.S.C. 1344(a)(1) and (2)(A)-(H)) to obtain a proper balance among the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone, as required by OCSLA section 18(a)(3) (43 U.S.C. 1344(a)(3)).
BOEM gathers information about multiple uses of the OCS in order to assist the Secretary in making decisions on the 5-year program pursuant to provisions of 43 U.S.C. 1344. For this purpose, BOEM invites and considers suggestions from States and local governments, industry, and any other interested parties, primarily through public notice and comment procedures. BOEM also invites and considers suggestions from Federal agencies.
To begin preparation of the Five Year program, BOEM invites and considers nominations for any areas to be included or excluded from leasing, by doing the following:
(a) BOEM prepares and makes public official protraction diagrams and leasing maps of OCS areas. In any area properly included in the official Five Year diagrams and maps, any area not already leased for oil and gas may be offered for lease.
(b) BOEM invites and considers suggestions and relevant information from governors of States, local governments, industry, Federal agencies, and other interested parties, through a publication of a request for information in the
(c) BOEM sends a letter to the governor of each affected State asking the governor to identify specific laws, goals, and policies that should be considered. Each State governor, as well as the Department of Commerce, is requested to identify the relationship between any oil and gas activity and the State under sections 305 and 306 of the CZMA, 16 U.S.C. 1454 and 1455.
(d) BOEM asks the Department of Energy for information on regional and national energy markets and transportation networks.
After considering the comments and information described in § 556.202, BOEM will prepare a draft proposed Five Year program.
(a) At least 60 days before publication of a proposed program, BOEM will send a letter, together with the draft proposed program, to the governor of each affected State, inviting the governor to comment on the draft proposed program.
(b) A governor, whether for purposes of preparing that State's comments or otherwise, may solicit comments from local governments that he determines may be affected by an oil and gas leasing program.
(c) If a governor's comments on the draft proposed program are received by
BOEM publishes the proposed program in the
(a) Governors are responsible for providing a copy of the proposed program to affected local governments in their States. Local governments may comment directly to BOEM, but must also send their comments to the governor of their State.
(b) All comments from any party are due within 90 days after publication of the request for comments in the
At least 60 days before the Secretary may approve a proposed final Five Year program or a significant revision to a previously approved final Five Year program, BOEM will submit a proposed final program or proposed significant revision to the President and Congress. BOEM will also submit comments received and indicate the reasons why BOEM did or did not accept any specific recommendation of the Attorney General of the United States, the governor of a State, or the executive of a local government.
For an oil and gas lease sale in a Five Year program, and as the need arises for other mineral leasing pursuant to part 581 of this chapter, BOEM will prepare a report describing the general geology and potential mineral resources of the area under consideration. The Director may request other interested Federal agencies to prepare reports describing, to the extent known, any other valuable resources contained within the general area and the potential effect of mineral operations upon the resources or upon the total environment or other uses of the area.
BOEM issues a Call for Information and Nominations (“Call”) on an area proposed for leasing in the Five Year program through publication in the
(a) Industry interest in the area proposed for leasing, including nominations or indications of interest in specific blocks within the area;
(b) Geological conditions, including bottom hazards;
(c) Archaeological sites on the seabed or near shore;
(d) Potential multiple uses of the proposed leasing area, including navigation, recreation, and fisheries;
(e) Areas that should receive special concern and analysis; and
(f) Other socioeconomic, biological, and environmental information.
(a) Based upon information and nominations received in response to the Call, and in consultation with appropriate Federal agencies, the Director will develop a recommendation of areas proposed for leasing for the Secretary for further consideration for leasing and/or environmental analysis.
(1) In developing the recommendation, the Director will consider available information concerning the environment, conflicts with other uses, resource potential, industry interest, and other relevant information, including comments received from State and local governments and other interested parties in response to the Call.
(2) The Director, on his/her own motion, may include in the recommendation areas in which interest has not been indicated in response to a Call. In making a recommendation, the Director will consider all available environmental information.
(3) Upon approval by the Secretary, the Director will announce the area identified in the
(b) BOEM will evaluate the area(s) identified for further consideration for the potential effects of leasing on the human, marine, and coastal environments, and may develop measures to mitigate adverse impacts, including lease stipulations, for the options to be analyzed. The Director may hold public hearings on the environmental analysis after an appropriate notice.
(c) BOEM will seek to inform the public, as soon as possible, of changes from the area(s) proposed for leasing that occur after the Call process.
(d) Upon request, the Director will provide relative indications of interest in areas, as well as any comments filed in response to a Call for a proposed sale. However, no information transmitted will identify any particular area with the name of any particular party so as not to compromise the competitive position of any participants in the process of indicating interest.
(e) For supplemental sales provided for by § 556.308, the Director's recommendation will be replaced by a statement describing the results of the Director's consideration of the factors specified above in this section.
For an area proposed for leasing that is within three nautical miles of the seaward boundary of a coastal State, as governed by section 8(g)(1) of OCSLA (43 U.S.C. 1337(g)(1)):
(a) BOEM provides the governor of the coastal State, subject to the confidentiality requirements in this chapter:
(1) A schedule for leasing; and
(2) An estimate of the potential oil and gas resources.
(b) At the request of the governor of a coastal State, BOEM will provide to that governor, subject to the confidentiality requirements in this chapter:
(1) Information concerning geographical, geological, and ecological characteristics; and
(2) An identification of any field, geological structure, or trap, or portion thereof, that lies within three nautical miles of the State's boundary.
(a) The Director will, in consultation with appropriate Federal agencies, develop measures, including lease stipulations and conditions, to mitigate adverse impacts on the environment, which will be contained, or referenced, in the proposed notice of sale.
(b) A proposed notice of sale will be submitted to the Secretary for approval. All comments and recommendations received and the Director's findings or actions thereon, will also be forwarded to the Secretary.
(c) Upon approval by the Secretary, BOEM will send a proposed notice of sale to the governors of affected States and publish the notice of its availability in the
(a) Within 60 days after receiving the proposed notice of sale, governors of affected States may submit comments and recommendations to BOEM regarding the size, timing, and location of the proposed sale. Local governments may comment to BOEM directly, but must also send their comments to the governor of their State.
(b) BOEM will provide a consistency determination under the Coastal Zone Management Act (CZMA) (16 U.S.C. 1456) to each State with an approved coastal zone management program that will determine whether the proposed sale is consistent, to the maximum extent practicable, with the enforceable policies of the State's approved coastal zone management program.
(a) Whenever the Director or the governor of a coastal State determines that a common potentially hydrocarbon-bearing area may underlie the Federal OCS and State submerged lands, the Director or the governor will notify the other party in writing of the determination.
(b) Thereafter the Director will provide to the governor of the coastal State, subject to the confidentiality requirements in this chapter:
(1) An identification of the areas proposed for leasing and a schedule for, leasing; and
(2) An estimate of the oil and gas resources.
(c) At the request of the governor of the coastal State, the Director will provide to such governor, subject to the confidentiality requirements in this chapter:
(1) All geographical, geological, and ecological characteristics of the areas proposed for leasing; and
(2) An identification of any field, geological structure, or trap that lies within 3 miles of the State's seaward boundary.
(d) If BOEM intends to lease such blocks or tracts, the Director and the governor of the coastal State may enter into an agreement for the equitable disposition of the revenues from production of any common potentially hydrocarbon-bearing area, pursuant to OCSLA section 8(g)(3) (43 U.S.C. 1337(g)(3)). Any revenues received by the United States under such an agreement are subject to the requirements of OSCLA section 8(g)(2) (43 U.S.C. 1337(g)(2)).
(e) If the Director and the governor do not enter into an agreement under paragraph (d) of this section within 90 days, BOEM may nevertheless proceed with the leasing of the tracts, in which case all revenues will be deposited in a separate account in the Treasury of the United States, pending disposition of 27% (twenty-seven percent) of the revenues to the relevant coastal state(s), pursuant to the requirements of OCSLA section 8(g)(2). (43 U.S.C. 1337(g)(2)).
(a) BOEM will consider all comments and recommendations received in response to the proposed notice of sale.
(b) If the Secretary determines, after providing opportunity for consultation, that a governor's comments, and those of any affected local government, provide a reasonable balance between the national interest and the well-being of the citizens of the State, the Secretary will accept the recommendations of a State and/or local government(s). Any such determination of the national interest will be based on the findings, purposes and policies of the Act set forth in 43 U.S.C. 1332 and 43 U.S.C. 1801.
(c) BOEM will send to each governor written reasons for its determination to accept or reject each governor's recommendation, and/or to implement any alternative means to provide for a reasonable balance between the national interest and the interests of the citizens of the State.
(a) BOEM publishes a final notice of sale in the
(1) States the place, time, and method for filing bids and the place, date, and hour for opening bids; and
(2) Contains or references a description of the areas offered for lease, the lease terms and conditions of sale, and stipulations to mitigate potential adverse impacts on the environment.
(b) Oil and gas tracts are offered for lease by competitive sealed bid in accordance with the terms and conditions in the final notice of sale and applicable laws and regulations.
(c) Unless BOEM finds that a larger area is necessary for reasonable economic production, no individual tract for oil and gas leasing will exceed 5,760 acres in area. If BOEM finds that an area larger than 5,760 acres is necessary in any particular area, the size of any such tract will be specified in the final notice of sale.
(d) The final notice of sale references, or provides a link to, the OCS lease form which will be issued to successful bidders.
(a) Except as provided in paragraph (c) of this section, BOEM may offer a block within a planning area included in the Five Year program in an otherwise unscheduled sale, if the block:
(1) Received a bid that was rejected in an earlier sale;
(2) Had a high bid that was forfeited in a scheduled sale; or
(3) Is a development block subject to drainage.
(b) For an unscheduled sale, BOEM may disclose the classification of the block as a development block.
(c) Blocks in the Central or Western Gulf of Mexico Planning Areas cannot be offered in a sale that is not on the schedule.
In order to bid on, own, hold, or operate a lease on the OCS, bidders, record title holders, and operating rights owners must first obtain a qualification number from BOEM.
(a) You may become qualified to hold a lease on the OCS and obtain a qualification number in accordance with § 556.402, if you submit evidence demonstrating that you are:
(1) A natural person who is a citizen or national of the United States;
(2) A natural person who is an alien lawfully admitted for permanent residence in the United States, as defined in 8 U.S.C. 1101(a)(20);
(3) A private, public, or municipal corporation or Limited Liability Company or Limited Liability Corporation (either/both sometimes herein referred to as “LLC”) organized under the laws of any State of the United States, the District of Columbia, or any territory or insular possession subject to United States jurisdiction;
(4) An association of such citizens, nationals, resident aliens, or corporations;
(5) A State, the District of Columbia, or any territory or insular possession subject to United States jurisdiction;
(6) A political subdivision of a State, the District of Columbia, or any territory or insular possession subject to United States jurisdiction; or
(7) A Trust organized under the laws of any State of the United States, the District of Columbia, or any territory or insular possession subject to United States jurisdiction;
(b) Statements and evidence submitted to demonstrate qualification under paragraphs (a)(1) through (6) of this section are subject to the penalties of 18 U.S.C. 1001.
(b) BOEM may issue you a qualification number after you have provided evidence acceptable to BOEM.
(a) If BOEM has already issued you a qualification number, you may present that number to BOEM. If not, in order to become qualified, you must provide the information in paragraph (b) or (c) of this section before BOEM will issue you a BOEM qualification number.
(b) A natural person must be a citizen or national of the United States, or a resident alien, to qualify. A United States citizen or national must submit written evidence acceptable to BOEM attesting to United States citizenship or national status. A resident alien must submit an original or a photocopy of the United States Citizenship and Immigration Services form evidencing legal status as a resident alien.
(c) A person who is not a natural person must submit evidence (refer to paragraph (d) of this section) acceptable to BOEM that:
(1) It is authorized to conduct business under the laws of a State, the District of Columbia, or any territory or insular possession subject to United States jurisdiction under which it is organized;
(2) Under the operating rules of its business, it is authorized to hold OCS leases; and
(3) Includes an up-to-date list of persons, and their titles, who are authorized to bind the corporation, association or other entity when conducting business on the OCS. It is up to you, in accordance with your organizational structure or rules, to identify the individual, or group of individuals, who has actual authority to bind your organization, and the title(s) they will use when they sign documents to bind the organization. You must maintain and regularly update the information as to who has the authority to bind the organization whenever that information changes.
(d) Acceptable evidence under paragraph (c) of this section includes, but is not limited to:
(1) For a corporation,
(i) A statement by the Secretary of the corporation, over corporate seal, certifying that the corporation is authorized to hold OCS leases; and
(ii) Evidence of authority of holders of positions entitled to bind the corporation, certified by Secretary of the corporation, over corporate seal, such as:
(A) Certified copy of resolution of the board of directors with titles of officers authorized to bind corporation;
(B) Certified copy of resolutions granting corporate officer authority to issue a power of attorney; or
(C) Certified copy of power of attorney or certified copy of resolution granting power of attorney.
(2) For a Limited or General Partnership,
(i) A statement by an authorized party certifying that the partnership is authorized to hold OCS leases;
(ii) A copy of your signed partnership formation documents, including a partnership agreement;
(iii) A statement from each partner indicating, as appropriate, U.S. citizenship or incorporation or organization under the laws of a State, the District of Columbia, or any territory or insular possession subject to U.S. jurisdiction; and
(iv) Documentation evidencing the existence of the partnership and that it was properly created, either from the Secretary of State of the State in which the partnership is registered or by an equivalent State or governmental office.
(3) For a Limited Liability Company or Limited Liability Corporation,
(i) A certificate of formation of the LLC;
(ii) A statement by an individual authorized to bind the LLC, as listed under (c)(4) above, certifying that the LLC is authorized to hold OCS leases;
(iii) A statement from each member indicating, as appropriate, U.S. citizenship, or incorporation or organization under the laws of a State, the District of Columbia, or any territory or insular possession subject to U.S. jurisdiction; and
(iv) Evidence of authority of holders of positions entitled to bind the LLC, certified by an individual authorized to bind the LLC.
(4) For a Trust,
(i) A copy of the trust agreement or document establishing the trust and all amendments, properly certified by the trustee; and
(ii) A statement indicating the law under which the trust is established and that the trust is authorized to hold OCS leases.
(e) In the event that a person may be eligible to hold OCS leases, but that type of person is not listed in paragraphs (c) or (d) of this section, evidence of such eligibility will be submitted and certified by the highest level of management of the person authorized to do so pursuant to its operating agreement or governance documents.
(f) Any person who obtains a qualification number from BOEM is responsible to ensure that it is not using the qualification number approved by BOEM for any purpose that its operating rules do not allow.
(g) Any evidence submitted in response to paragraphs (c), (d), or (e) of this section is submitted subject to 18 U.S.C. 1001.
(h) A person may not hold leases on the OCS until the evidence requested in this section has been accepted and approved by BOEM and BOEM has issued a qualification number to that person.
(i) If use of a corporate seal is required by this section, you may meet the requirement as specified in § 556.107.
You may not hold an OCS lease if:
(a) You or your principals are excluded or disqualified from participating in a transaction covered by Federal non-procurement debarment and suspension (2 CFR parts 180 and 1400), unless the Department explicitly approves an exception for a transaction pursuant to the regulations in those parts;
(b) The Secretary finds, after notice and hearing, that you or your principals (including in the meaning of “you,” for purposes of this subparagraph, a bidder or prospective bidder) fail to meet due diligence requirements or to exercise due diligence under section 8(d) of OCSLA (43 U.S.C. 1337(d)) on any OCS lease; or
(c) BOEM disqualifies you from holding a lease on the OCS based on your unacceptable operating performance. BOEM will give you adequate notice and opportunity for a hearing before imposing a disqualification, unless BSEE has already provided such notice and opportunity for a hearing.
You must comply with the Department's non-procurement
(a) You must notify BOEM if you know that you or your principals are excluded, disqualified, have been convicted or are indicted of a crime as described in 2 CFR part 180, subpart C. You must make this notification before you sign a lease, sublease, or an assignment of record title interest or operating rights interest, or become a lease or unit operator. This paragraph does not apply if you have previously provided a statement disclosing this information, and you have received an exception from the Department, as described in 2 CFR 180.135 and 2 CFR 1400.137.
(b) If you wish to enter into a covered transaction with another person at a lower tier, as described in 2 CFR 180.200, you must first:
(1) Verify that the person is not excluded or disqualified under 2 CFR part 180; and
(2) Require the person to:
(i) Comply with 2 CFR part 180, subpart C; and
(ii) Include the obligation to comply with 2 CFR part 180, subpart C in its contracts and other transactions.
(c) After you enter into a covered transaction, you must immediately notify BOEM in writing if you learn that:
(1) You failed to disclose pertinent information earlier; or
(2) Due to changed circumstances, you or your principals now meet any of the criteria in 2 CFR 180.800.
You must notify BOEM of any merger, name change, or change of business form as soon as practicable, but in no case later than one year after the earlier of the effective date or the date of filing the change or action with the Secretary of State or other authorized official in the State of original registry.
(a) You must submit a separate sealed bid for each tract or bidding unit to the address provided and by the time specified in the final notice of sale. You may not bid on less than an entire tract or bidding unit.
(b) BOEM requires a deposit for each bid. The final notice of sale will specify the amount and method of payment.
(c) Unless otherwise specified in the final notice of sale, the bid deposit amount will be 20 percent of the amount of the bid for any given tract or bidding unit.
(d) You may not submit a bid on an OCS tract if, after notice and hearing under section 8(d) of OCSLA (43 U.S.C. 1337(d)), the Secretary finds that you are not meeting the diligence requirements on any OCS lease.
(e) If the authorized officer within BOEM rejects your high bid, the decision is final for the Department, subject only to reconsideration upon your written request as set out in § 556.517.
In accordance with OCSLA section 18(a)(4) (43 U.S.C. 1344(a)(4)), BOEM must evaluate every bid to ensure that the federal government receives fair market value for every lease. Section 26(a)(1)(A) of OCSLA (43 U.S.C. 1352(a)(1)(A)) provides that, in accordance with regulations prescribed by the Secretary, any lessee or permittee conducting any exploration for, or development or production of, oil or gas must provide the Secretary access to all data and information (including processed, analyzed, and interpreted information) obtained from that activity and must provide copies of that data and information as the Secretary may request.
(a) As part of the lease sale process, every bidder submitting a bid on a tract, or participating as a joint bidder in such a bid, may at the time of bid be required to submit various information, including a Geophysical Data and Information Statement (GDIS) corresponding to that tract, as well as the bidder's exclusive/proprietary geophysical data in order for BOEM to properly evaluate the bid. If a GDIS required, each GDIS must include, as required by § 551.12(b) and (c) of this chapter:
(1) A list of geophysical surveys or other information used as part of the decision to bid or participate in a bid on the block.
(2) An accurate and complete record of each geophysical survey conducted, including digital navigational data and final location maps. The bidder and any joint bidder must include a map for each survey identified in the GDIS that illustrates the actual areal extent of the proprietary geophysical data.
(b) If a bidder is required to submit a GDIS, the GDIS must be submitted even if the bidder did not rely on proprietary geophysical data and information in deciding to bid or participate as a joint bidder in the bid for any particular block, and must include entries for all such blocks.
(c) The bidder must submit each GDIS in a separate and sealed envelope, or in an electronically readable spreadsheet format, with proprietary seismic data maps also available in an electronic format. Each bidder must submit the GDIS even if its joint bidder or bidders on a specific block also have submitted a GDIS.
(d) If BOEM requires additional information related to bidding, it will describe the additional information requirements in the final notice of sale.
(e) BOEM will reimburse bidders for the costs of complying with the requirements of this section, in accordance with § 550.196 (on lease) and/or § 551.13 (off lease) of this chapter.
(f) Bids that are not made in compliance with this section will be considered incomplete and invalid.
The Energy Policy and Conservation Act of 1975, 42 U.S.C. 6213, prohibits joint bidding by major oil and gas producers under certain circumstances. BOEM implements 42 U.S.C. 6213 as follows:
(a) BOEM publishes twice yearly in the
(1) Consists of the persons chargeable with an average worldwide daily production in excess of 1.6 million barrels of crude oil and/or its equivalent in natural gas liquids and natural gas for the prior production period; and
(2) Is based upon the statement of production that filed as required by § 556.513.
(b) If BOEM places you on the restricted joint bidders list, BOEM will send you a copy of the order placing you on the list. You may appeal this order to the Interior Board of Land Appeals under 30 CFR part 590, subpart A.
(c) If you are listed in the
(1) Jointly with another person in any other group of restricted bidders for the applicable 6-month bidding period; or
(2) Separately during the 6-month bidding period if you have an agreement with another restricted bidder that will result in joint ownership in an OCS lease.
(d) If you are listed in the
(e) Even if you are not listed in the
(f) As a bidder, you are prohibited from unlawful combination with, or intimidation of, bidders under 18 U.S.C. 1860.
The following bids for any oil and gas lease will be disqualified and rejected in their entirety:
(a) A joint bid submitted by two or more persons who are on the effective List of Restricted Joint Bidders; or
(b) A joint bid submitted by two or more persons when:
(1) One or more of those persons is chargeable for the prior production period with an average daily production in excess of 1.6 million barrels of crude oil, natural gas and natural gas liquids and has not filed a Statement of Production, as required by § 556.513 of this part for the applicable 6-month bidding period, or
(2) Any of those persons have failed or refused to file a detailed report of production when required to do so under § 556.513, or
(c) A single or joint bid submitted pursuant to an agreement (whether written or oral, formal or informal, entered into or arranged prior to or simultaneously with the submission of such single or joint bid, or prior to or simultaneously with the award of the bid upon the tract) that provides:
(1) For the assignment, transfer, sale, or other conveyance of less than a 100 percent interest in the entire tract on which the bid is submitted, by a person or persons on the List of Restricted Joint Bidders, effective on the date of submission of the bid, to another person or persons on the same List of Restricted Joint Bidders; or
(2) For the assignment, sale, transfer or other conveyance of less than a 100 percent interest in any fractional interest in the entire tract (which fractional interest was originally acquired by the person making the assignment, sale, transfer or other conveyance, under the provisions of the act) by a person or persons on the List of Restricted Joint Bidders, effective on the date of submission of the bid, to another person or persons on the same List of Restricted Joint Bidders; or
(3) For the assignment, sale, transfer, or other conveyance of any interest in a tract by a person or persons not on the List of Restricted Joint Bidders, effective on the date of submission of the bid, to two or more persons on the same List of Restricted Joint Bidders; or
(4) For any of the types of conveyances described in paragraphs (c)(1), (2), or (3) of this section where any party to the conveyance is chargeable for the prior production period with an average daily production in excess of 1.6 million barrels of crude oil, natural gas and natural gas liquids and has not filed a Statement of Production pursuant to § 556.513 for the applicable six-month bidding period. Assignments expressly required by law, regulation, lease or lease stipulation will not disqualify an otherwise qualified bid; or
(d) A bid submitted by or in conjunction with a person who has filed a false, fraudulent or otherwise intentionally false or misleading detailed Report of Production.
(a) You must file a statement of production if your average worldwide daily production exceeded 1.6 million barrels for the prior production period, as determined using the method set forth in § 556.514. Your statement of production must specify that you were chargeable with an average daily production in excess of 1.6 million barrels for the prior production period.
(b) The prior production periods are as follows:
(c) You must file the statement of production by the following deadlines:
(d) If you are required to file a statement of production, BOEM may require you to submit a detailed report of production.
(1) The detailed report of production must list crude oil, natural gas liquids, and natural gas produced worldwide from reservoirs during the prior production period, and therefore chargeable to the prior production period.
(i) The amount of crude oil chargeable to the prior production period will be established by measurement of volumes delivered at the point of custody transfer (
(ii) The amount of natural gas liquids chargeable to the prior production period must include gas liquefied at surface separators, field facilities, or gas processing plants.
(iii) The amount of natural gas chargeable to the prior production period must include adjustments, where applicable, to reflect the volume of gas returned to natural reservoirs, and the reduction of volume resulting from the removal of natural gas liquids and non-hydrocarbon gases.
(2) You must submit the detailed report of production within 30 days after receiving BOEM's request.
(3) BOEM may inspect and copy any document, record of production, analysis, and other material to verify the accuracy of any earlier statement of production.
(e) If you submit a statement of production that misrepresents your chargeable production, the Department may cancel any lease awarded in reliance upon the statement.
(a) To determine the amount of production chargeable to you, add together:
(1) Your average daily production in barrels of crude oil, natural gas liquids, and natural gas worldwide, all measured at 60 °F, using the equivalency or conversion factors for natural gas liquids and natural gas set out in 42 U.S.C. 6213(b)(2) and (3); and
(2) Your proportionate share of the average daily production owned by any person that has an interest in you and/or in which you have an interest.
(b) For the purpose of paragraph (a)(1) of this section, your production includes 100 percent of production owned by:
(1) You;
(2) Every subsidiary of yours;
(3) Every person of which you are a subsidiary; and
(4) Every subsidiary of any person of which you are a subsidiary.
(c) For purposes of paragraph (a)(2) of this section, interest means at least a five percent ownership or control of you or the reporting person and includes any interest:
(1) From ownership of securities or other evidence of ownership; or,
(2) By participation in any contract, agreement, or understanding regarding control of the person or their production of crude oil, natural gas liquids, or natural gas.
(d) For purposes of this section, subsidiary means a person, 50 percent or more of whose stock or other interest having power to vote for the election of a controlling body, such as directors or trustees, is directly or indirectly owned or controlled by another person.
(e) For purposes of this section, production chargeable to you includes, but is not limited to, production obtained as a result of a production payment or a working, net profit, royalty, overriding royalty, or carried interest.
(f) For purposes of this section, production must be measured with appropriate adjustments for:
(1) Basic sediment and water;
(2) Removal of natural gas liquids and non-hydrocarbon gases; and
(3) Volume of gas returned to natural reservoirs.
BOEM may exempt you from some or all of the reporting requirements listed in § 556.513, and/or some or all of the joint bidding restrictions listed in §§ 556.511 and/or 556.512(a), (b), and/or (c), if, after opportunity for a hearing, BOEM determines that the extremely high costs in an area will preclude exploration and development without an exemption.
(a) BOEM opens the sealed bids at the place, date, and hour specified in the final notice of sale for the sole purpose of publicly announcing and recording the bids. BOEM does not accept or reject any bids at that time.
(b) BOEM reserves the right to reject any and all bids received, regardless of the amount offered. BOEM accepts or rejects all bids within 90 days of opening. BOEM reserves the right to extend that time if necessary, and in that event, BOEM will notify bidder(s) in writing prior to the expiration of the initial 90-day period, or of any extension. Any bid not accepted within the prescribed 90-day period, or any extension thereof, will be deemed rejected. If your bid is rejected, BOEM will refund any money deposited with your bid, plus any interest accrued.
(c) If the highest bids are a tie, BOEM will notify the bidders who submitted the tie bids. Within 15 days after notification, those bidders, if qualified, and not otherwise prohibited from bidding together, may:
(1) Agree to accept the lease jointly. The bidders must notify BOEM of their decision and submit a copy of their agreement to accept the lease jointly.
(2) Agree between/among themselves which bidder will accept the lease. The bidders must notify BOEM of their decision.
(d) If no agreement is submitted pursuant to paragraph (c) of this section, BOEM will reject all the tie bids.
(e) The Attorney General, in consultation with the Federal Trade Commission, has 30 days to review the results of the lease sale before BOEM may accept the bid(s) and issue the lease(s).
(a) The decision of the authorized officer on bids is the final action of the Department, subject only to reconsideration of the rejection of the high bid by the Director, in accordance with paragraph (b) of this section.
(b) Within 15 days of bid rejection, you may file a written request for reconsideration with the Director, with a copy to the authorized officer. Such request must provide evidence as to why the Director should reconsider your bid. You will receive a written response either affirming or reversing the rejection of your bid.
(c) The Director's decision on the request for reconsideration is not subject to appeal to the Interior Board of Land Appeals in the Department's Office of Hearings and Appeals.
(a) If BOEM accepts your bid, BOEM will provide you with the appropriate number of copies of the lease for you to execute and return to BOEM. Within 11 business days after you receive the lease copies, you must:
(1) Execute all copies of the lease;
(2) Pay the first year's rental;
(3) Pay the balance of the bonus bid, unless deferred under paragraph (b) below;
(4) Comply with subpart I of this part; and,
(5) Return all copies of the executed lease, including any required bond or other form of security approved by the Regional Director, to BOEM.
(b) If provided for in the final notice of sale, BOEM may defer any part of the bonus and bid payment for up to five years after the sale according to a schedule included in the final notice of sale. You must provide a bond acceptable to BOEM to guarantee payment of a deferred bonus bid.
(c) If you do not make the required payments and execute and return all copies of the lease and any required bond within 11 business days after receipt, or if you otherwise fail to comply with applicable regulations, your deposit will be forfeited. However, BOEM will return any deposit with interest if the tract is withdrawn from leasing before you execute the lease.
(d) If you use an agent to execute the lease, you must include evidence with the executed copies of the lease that a person who is on the list of persons referenced in § 556.402(c)(3) authorized the agent to act for you.
(e) After you comply with all requirements in this section, and after BOEM has executed the lease, BOEM will send you a fully executed lease.
Your lease is effective on the first day of the month following the date that BOEM executes the lease. You may request in writing, before BOEM executes the lease, that your lease be effective as of the first day of the month in which BOEM executes the lease. If BOEM agrees to make the lease effective as of the earlier date, BOEM will so indicate when it executes the lease.
The terms and conditions of the lease will be stated in the final notice of sale and contained in the lease instrument itself. Oil and gas leases and leases for sulfur will be issued on forms approved by the Director.
(a) The primary term of an oil and gas lease will be five years, unless BOEM determines that:
(1) The lease is located in unusually deep water or involves other unusually adverse conditions; and,
(2) A lease term longer than five years is necessary to explore and develop the lease.
(b) If BOEM determines that the criteria in paragraphs (a)(1) and (2) of this section are met, it may specify a longer primary term, not to exceed 10 years.
(c) BOEM will specify the primary term in the final notice of sale and in the lease instrument.
(d) The lease will expire at the end of the primary term, unless maintained beyond that term in accordance with the provisions of § 556.601.
You may maintain your oil and gas lease beyond the expiration of the primary term as long as:
(a) You are producing oil or gas in paying quantities;
(b) You are conducting approved drilling or well reworking operations with the objective of establishing production in paying quantities, in accordance with 30 CFR 250.180;
(c) You are producing from, or drilling or reworking, an approved well adjacent to or adjoining your lease that extends directionally into your lease in accordance with 30 CFR 256.71;
(d) You make compensatory payments on your lease in accordance with 30 CFR 256.72;
(e) Your lease is included in a BSEE-approved unit, in accordance with 30 CFR part 250, subpart M; or
(f) Your lease is subject to a suspension of production or a suspension of operations, in accordance with 30 CFR 250.168 through 250.180, for reasons other than gross negligence or a willful violation of a provision of your lease or any governing regulations.
(a) Your sulfur lease will have a primary term of not more than 10 years, as specified in the lease.
(b) BOEM will announce the primary term prior to the lease sale.
(c) The lease will expire at the end of the primary term unless maintained beyond that term in accordance with the provisions of § 556.603.
You may maintain your sulfur lease after the primary term as long as you are producing sulfur in paying quantities, conducting drilling, well reworking or plant construction, or other operations for the production of sulfur or you are granted a suspension by BSEE; or your lease is subject to a suspension directed by BSEE for reasons other than gross negligence or a willful violation of a provision of your lease or governing regulations.
(a) As a record title owner, you are responsible for all administrative and operating performance on the lease, including paying any rent and royalty due.
(b)(1) A record title owner owns operating rights to the lease, unless and until he or she severs the operating rights by subleasing them to someone else.
(2) A sublease of operating rights from record title may be for a whole or undivided fractional interest in the entire lease or a described aliquot portion of the lease and/or a depth interval. The sublease creates an operating rights interest in the sublessee, herein referred to as the operating rights owner.
(c) Within any given aliquot, the record title owner may sublease operating rights for up to a maximum of two depth divisions, which may result in a maximum of three different depth intervals. But, if the one, or two, depth divisions to which operating rights are subleased do not include the entire depth of the lease, whatever depth division(s) has not been subleased, remains part of the lessee/sublessor's record title interest. The depth intervals for which operating rights are subleased must be defined by a beginning and ending depth and the ending of one depth level must abut the beginning of the next depth level, with no gap in between.
(d) Every current and prior record title owner is jointly and severally liable, along with all other record title owners and all prior and current operating rights owners, for compliance with all non-monetary terms and conditions of the lease and all regulations issued under OCSLA, as well as for fulfilling all non-monetary obligations, including decommissioning obligations, which accrue while it holds record title interest.
(e) Record title owners that acquired their record title interests through assignment from a prior record title owner are also responsible for remedying all existing environmental or operational problems on any lease in which they own record title interests, with subrogation rights against prior lessees.
(f) For monetary obligations, your obligation depends on the source of the monetary obligation and whether you have retained or severed your operating rights.
(1) With respect to those operating rights that you have retained, you are primarily liable under 30 U.S.C. 1712(a) for your pro-rata share of all other monetary obligations pertaining to that portion of the lease subject to the operating rights you have retained, based on your share of operating rights in that portion of the lease.
(2) With respect to all monetary obligations arising from or in connection with those operating rights that have been severed from your record title interest, your obligation is secondary to that of the sublessee(s) or later assignee(s) of the operating rights that were severed from your record title interest, as prescribed in 30 U.S.C. 1712(a).
(a) As an operating rights owner, you have the right to enter the leased area to explore for, develop, and produce oil and gas resources, except helium gas, contained within the aliquot(s) and depths within which you own operating rights, according to the lease terms, applicable regulations, and BOEM's approval of the sublease or subsequent assignment of the operating rights.
(b) Unless otherwise prohibited, you have the right to authorize another party to conduct operations on the part of the lease to which your operating rights appertain.
(c) An owner of operating rights who is designating a new designated operator must file a designation of operator under § 550.143 of this chapter.
(d) An operating rights owner is only liable for obligations arising from that portion of the lease to which its operating rights appertain and that accrue during the period in which the operating rights owner owned the operating rights.
(e) You are jointly and severally liable with other operating rights owners and the record title owners for all non-monetary lease obligations pertaining to that portion of the lease subject to your operating rights, which accrued during the time you held your operating rights interest.
(f) An operating rights owner that acquires its operating rights interests through assignment from a prior operating rights owner is also responsible, with subrogation rights against prior operating rights owners, for remedying existing environmental or operational problems, to the extent that such problems arise from that portion of the lease to which its operating rights appertain, on any lease in which it owns operating rights.
(g) You are primarily liable for monetary obligations pertaining to that portion of the lease subject to your
(a) BOEM reserves the ownership of, and the right to extract, helium from all gas produced from your OCS lease. Under section 12(f) of OCSLA (43 U.S.C. 1341(f)), upon our request, you must deliver all or a specified portion of the gas containing helium to BOEM at a point on the leased area or at an onshore processing facility that BOEM designates.
(b) BOEM will determine reasonable compensation and pay you for any loss caused by the extraction of helium, except for the value of the helium itself. BOEM may erect, maintain, and operate on your lease any reduction work and other equipment necessary for helium extraction. Our extraction of helium will be conducted in a manner to not cause substantial delays in the delivery of gas to your purchaser.
(a) With BOEM approval, you may assign your whole, or a partial record title interest in your entire lease, or in any aliquot(s) thereof.
(b) With BOEM approval, you may sever all, or a portion of, your operating rights.
(c) You must request approval of each assignment of a record title interest and each sublease of an operating rights interest. Each instrument that transfers a record title interest must describe, by aliquot parts, the interest you propose to transfer. Each instrument that severs an operating rights interest must describe, by officially designated aliquot parts and depth levels, the interest proposed to be transferred.
(a) The Regional Director will provide the form to record an assignment of record title interest in a Federal OCS oil and gas or sulfur lease, or a severance of operating rights from that record title interest. You must submit to BOEM two originals of each instrument that transfers ownership of record title within 90 days after the last party executes the transfer instrument. You must pay the service fee listed in § 556.106 with your request and your submission must include evidence of payment via pay.gov.
(b) Before BOEM approves an assignment or transfer, it must consult with, and consider the views of, the Attorney General. The Secretary may act on an assignment or transfer if the Attorney General has not responded to a request for consultation within 30 days of said request.
(c) A new record title owner or sublessee must file a designation of operator, in accordance with § 550.143 of this chapter, along with the request for the approval of the assignment.
(a) When there is an assignment by all record title owners of 100 percent of the record title to one or more aliquots in a lease, the assigned and retained portions become segregated into separate and distinct leases. In such case, both the new lease and the remaining portion of the original lease are referred to as “segregated leases” and the assignee(s) becomes the record title owner(s) of the new lease, which is subject to all the terms and conditions of the original lease.
(b) If a record title holder transfers an undivided interest,
(a) The bonding/financial assurance requirements of subpart I of this part apply separately to each segregated lease.
(b) The royalty, minimum royalty, and rental provisions of the original lease will apply separately to each segregated lease.
(c) BOEM will allocate among the segregated leases, on a basis that is equitable under the circumstances, any remaining unused royalty suspension volume or other form of royalty suspension or royalty relief that had been granted to the original lease, not to exceed in aggregate the total remaining amount.
(d) Each segregated lease will continue in full force and effect for the primary term of the original lease and so long thereafter as each segregated lease meets the requirements outlined in § 556.601. A segregated lease that does not meet the requirements of § 556.601 does not continue in force even if another segregated lease, which was part of the original lease, continues to meet those requirements.
(a) BOEM may disapprove an assignment or sublease of all or part of your lease interest(s):
(1) When the transferor or transferee has unsatisfied obligations under this chapter or 30 CFR chapters II or XII;
(2) When a transferor attempts a transfer that is not acceptable as to form or content (
(3) When the transfer does not conform to these regulations, or any other applicable laws or regulations (
(b) A transfer will be void if it is made pursuant to any prelease agreement that would cause a bid to be disqualified, such as those described in § 556.511(c), (d), or (e).
(a) An heir or devisee must submit evidence by means of a certified copy of an appropriate court order or decree that the person is deceased; or, if no court action is necessary, a certified copy of the will and death certificate or notarized affidavits of two disinterested parties with knowledge of the facts.
(b) The heir or devisee, if the lawful successor in interest, must submit evidence that he/she is the person named in the will or evidence from an appropriate judgment of a court or decree that he/she is the lawful successor in interest, along with the required evidence of his/her qualifications to hold a lease under subpart D of this part.
(c) If the heir or devisee does not qualify to hold a lease under subpart D of this part, he/she will be recognized as the successor in interest, but he/she
You may not transfer interests in more than one lease to different parties using the same instrument. If you want to transfer the interest in more than one lease at the same time, you must submit duplicate, originally executed forms for each transfer. The forms used for each transfer must be accompanied by a cover letter executed by one of the parties to the transfer (or an authorized agent thereof) and evidence of payment via pay.gov.
You may not transfer different types of lease interests in a lease to different parties using the same instrument. You must submit duplicate, originally executed forms for each transfer, to a different party, of a different type of lease interest. The form used to transfer each type of lease interest must be accompanied by a cover letter executed by one of the parties to the transfer (or an authorized agent thereof) and evidence of payment via pay.gov.
You may not transfer your record title interests in more than one lease to the same party using the same instrument. If you want to transfer record title interests in more than one lease at the same time, you must submit separate, originally executed forms for each transfer. The forms used for each transfer must be accompanied by a cover letter executed by one of the parties to the transfer (or an authorized agent thereof), and evidence of payment via pay.gov. A separate fee applies to each individual transfer of interest.
You may transfer your record title interest in one lease to multiple parties using the same instrument. That instrument must be submitted in duplicate originals, accompanied by a cover letter executed by one of the parties to the transfer (or an authorized agent thereof). In such a multiple transfer of interests using a single instrument, a separate fee applies to each individual transfer of interest, and evidence of payment via pay.gov must accompany the instrument.
If you assign your record title interest, as an assignor you remain liable for all obligations, monetary and non-monetary, that accrued in connection with your lease during the period in which you owned the record title interest, up to the date BOEM approves your assignment. BOEM's approval of the assignment does not relieve you of these accrued obligations. Even after assignment, BOEM or BSEE may require you to bring the lease into compliance if your assignee or any subsequent assignee fails to perform any obligation under the lease, to the extent the obligation accrued before approval of your assignment. Until there is a BOEM-approved assignment of interest, you, as the assignor, remain liable for the performance of all lease obligations that accrued while you held record title interest, until all such obligations are fulfilled.
(a) A record title holder who subleases operating rights remains liable for all obligations of the lease, including those obligations accruing after BOEM's approval of the sublease, subject to § 556.604(e) and (f).
(b) Neither the sublease of operating rights, nor subsequent assignment of those rights by the original sublessee, nor by any subsequent assignee of the operating rights, alters in any manner the liability of the record title holder for nonmonetary obligations.
(c) Upon approval of the sublease of the operating rights, the sublessee and subsequent assignees of the operating rights become primarily liable for monetary obligations, but the record title holder remains secondarily liable for them, as prescribed in 30 U.S.C. 1712(a) and § 556.604(f)(2).
Any transfer is effective at 12:01 a.m. on the first day of the month following the date on which BOEM approves your request, unless you request an earlier effective date and BOEM approves that earlier date, but such earlier effective date, if prior to the date of BOEM's approval, does not relieve you of obligations accrued between that earlier effective date and the date of approval.
As assignee, you and any subsequent assignees are liable for all obligations that accrue after the effective date of your assignment. As assignee, you must comply with all the terms and conditions of the lease and regulations issued under OCSLA, and in addition, you must remedy all existing environmental and operational problems on the lease, properly abandon all wells, and reclaim the site, as required under 30 CFR part 250.
(a) Where the proposed assignment or transfer is by a person who, at the time of acquisition of an interest in the lease, was on the List of Restricted Joint Bidders, and that assignment or transfer is of less than the entire interest held by the assignor or transferor and to a person or persons on the same List of Restricted Joint Bidders, the assignor or transferor must file, prior to the approval of the assignment, a copy of all agreements applicable to the acquisition of that lease or fractional interest, or a description of the timing and nature of the agreement(s) by which the assignor or transferor acquired the interest it now wishes to transfer.
(b) Such description of the timing and nature of the transfer agreement must be submitted together with a certified statement that attests to the truth and accuracy of any information reported concerning that agreement, subject to the penalties of 18 U.S.C. 1001.
(c) If you wish to transfer less than your entire interest to another restricted joint bidder, BOEM may request the opinion of the Attorney General before acting on your request.
(d) You may request that any submission to BOEM made pursuant to this part be treated confidentially. Please note such a request on your submission. BOEM will treat this request for confidentiality in accordance with the regulations at § 556.104 and the regulations at 43 CFR part 2.
(a) You may create, transfer, or assign economic interests without BOEM approval. However, for record purposes, you must send BOEM a copy of each instrument creating or transferring such interests within 90 days after the last party executes the transfer instrument. For each lease affected, you must pay the service fee listed in § 556.106 with your documents submitted for record
(b) For recordkeeping purposes, you may also submit other legal documents to BOEM for transactions that do not require BOEM approval. If you submit such documents for record purposes not required by this part, you must pay the service fee listed in § 556.106 with your document submissions for each lease affected. Your submission must include evidence of payment via pay.gov.
(a) If a transfer of ownership of the record title interest only changes the percentage ownership of the record title, no new parties or new aliquots are involved in the transaction, and no change of designated operator is made, you will not need to submit a new designation of operator form.
(b) In all cases other than that in paragraph (a) of this section, you must submit new designation of operator forms in accordance with § 550.143 of this chapter. In the event that you are transferring multiple record title interests, you must comply with this requirement for each interest that does not fall within paragraph (a) of this section.
An operating rights owner may assign all or part of its operating rights interests, subject to BOEM approval. Each instrument that transfers an interest must describe, by officially designated aliquot parts and depth levels, the interest proposed to be transferred.
(a) The Regional Director will provide the form to document the assignment of an operating rights interest. You must request approval of each assignment of operating rights and submit to BOEM two originals of each instrument that transfers ownership of operating rights within 90 days after the last party executes the transfer instrument. You must pay the service fee listed in § 556.106 with your request and your submission must include evidence of payment via pay.gov.
(b) A new operating rights owner must file a designation of operator, in accordance with § 550.143, along with the request for the approval of the assignment.
(c) If an operating rights owner assigns an undivided ownership interest in its operating rights, that assignment creates a joint ownership in the operating rights.
(d) Before BOEM approves a sublease or re-assignment of operating rights, BOEM may consult with and consider the views of the Attorney General.
BOEM may disapprove an assignment of all or part of your operating rights interest:
(a) When the transferor or transferee has outstanding or unsatisfied obligations under this chapter or 30 CFR chapter II or XII;
(b) When a transferor attempts a transfer that is not acceptable as to form or content (
(c) When the transfer does not conform to these regulations, or any other applicable laws or regulations (
You may not assign operating rights interests in more than one lease to different parties using the same instrument. If you want to transfer operating rights interests in more than one lease at the same time, you must submit two originally executed forms for each transfer. Each request for a transfer of operating rights interest must be accompanied by a cover letter executed by one of the parties to the transfer (or an authorized agent thereof) and evidence of payment via pay.gov.
You may assign your operating rights interest in one lease to multiple parties using the same instrument. That instrument must be submitted in duplicate originals, accompanied by a cover letter executed by one of the parties to the transfer (or an authorized agent thereof). In such a multiple transfer of interests using a single instrument, a separate fee applies to each individual transfer of interest and evidence of payment via pay.gov must accompany the instrument.
An operating rights owner (who does not hold record title) who assigns the operating rights remains liable for all obligations of the lease that accrued during the period in which the assignor owned the operating rights, up to the effective date of the assignment, including decommissioning obligations that accrued during that period. BOEM's approval of the assignment does not alter that liability. Even after assignment, BOEM or BSEE may require the assignor to bring the lease into compliance if the assignee or any subsequent assignee fails to perform any obligation under the lease, to the extent the obligation accrued before approval of the assignment.
An assignment is effective at 12:01 a.m. on the first day of the month following the date on which BOEM approves your request, unless you request an earlier effective date and BOEM approves that earlier date. Such an earlier effective date, if prior to the date of BOEM's approval, does not relieve you of obligations accrued between that earlier effective date and the date of approval.
As assignee, you and any subsequent assignees are liable for all obligations that accrue after the effective date of your assignment. As assignee, you must comply with all the terms and conditions of the lease and regulations issued under OCSLA. In addition, you must remedy all existing environmental and operational problems on the lease, properly abandon all wells, and reclaim the site, as required under 30 CFR part 250.
(a) You may create, transfer, or assign economic interests without BOEM approval. However, for record purposes, you must send BOEM a copy of each instrument creating or transferring such interests within 90 days after the last party executes the transfer instrument. For each lease affected, you must pay the service fee listed in § 556.106 with your documents submitted for record purposes, and your submission must include evidence of payment via pay.gov.
(b) For record keeping purposes, you may also submit other legal documents
(a) If a transfer of ownership of operating rights only changes the percentage ownership; no new parties, new aliquots, or new depths are involved in the transaction; and no change of designated operator is made, you will not need to submit a new designation of operator form.
(b) In all cases other than that in paragraph (a) of this section, you must submit new designation of operator forms, in accordance with § 550.143 of this chapter. In the event that you are transferring multiple operating rights interests, you must comply with this requirement for each interest that does not fall within paragraph (a) of this section.
This section establishes bond requirements for the lessee of an OCS oil and gas or sulfur lease.
(a) Before BOEM will issue a new lease or approve the assignment of an existing lease to you as lessee, you or another record title owner for the lease must:
(1) Maintain with the Regional Director a $50,000 lease bond that guarantees compliance with all the terms and conditions of the lease; or
(2) Maintain a $300,000 area-wide bond that guarantees compliance with all the terms and conditions of all your oil and gas and sulfur leases in the area where the lease is located; or
(3) Maintain a lease or area-wide bond in the amount required in § 556.901(a) or (b).
(b) For the purpose of this section, there are three areas. The three areas are:
(1) The Gulf of Mexico and the area offshore the Atlantic Coast;
(2) The area offshore the Pacific Coast States of California, Oregon, Washington, and Hawaii; and
(3) The area offshore the Coast of Alaska.
(c) The requirement to maintain a lease bond (or substitute security instrument) under paragraph (a)(1) of this section and § 556.901(a) and (b) may be satisfied if your operator or an operating rights owner provides a lease bond in the required amount that guarantees compliance with all the terms and conditions of the lease. Your operator or an operating rights owner may use an areawide bond under this paragraph to satisfy your bond obligation.
(d) If a surety makes payment to the United States under a bond or alternative form of security maintained under this section, the surety's remaining liability under the bond or alternative form of security is reduced by the amount of that payment. See paragraph (e) of this section for the requirement to replace the reduced bond coverage.
(e) If the value of your surety bond or alternative security is reduced because of a default or for any other reason, you must provide additional bond coverage sufficient to meet the security required under this subpart within 6 months, or such shorter period of time as the Regional Director may direct.
(f) You may pledge United States Department of the Treasury (Treasury) securities instead of a bond. The Treasury securities you pledge must be negotiable for an amount of cash equal to the value of the bond they replace.
(1) If you pledge Treasury securities under this paragraph (f), you must monitor their value. If their market value falls below the level of bond coverage required under this subpart, you must pledge additional Treasury securities to raise the value of the securities pledged to the required amount.
(2) If you pledge Treasury securities, you must include authority for the Regional Director to sell them and use the proceeds in the event that the Regional Director determines that you fail to satisfy any lease obligation.
(g) You may pledge alternative types of security instruments instead of providing a bond if the Regional Director determines that the alternative security protects the interests of the United States to the same extent as the required bond.
(1) If you pledge an alternative type of security under this paragraph, you must monitor the security's value. If its market value falls below the level of bond coverage required under this subpart, you must pledge additional securities to raise the value of the securities pledged to the required amount.
(2) If you pledge an alternative type of security, you must include authority for the Regional Director to sell the security and use the proceeds when the Regional Director determines that you failed to satisfy any lease obligation.
(h) If you fail to replace a deficient bond or to provide additional bond coverage upon demand, the Regional Director may:
(1) Assess penalties under part 550, subpart N of this chapter;
(2) Suspend production and other operations on your leases in accordance with 30 CFR 250.173; and
(3) Initiate action to cancel your lease.
(a) This paragraph explains what bonds you must provide before lease exploration activities commence.
(1)(i) You must furnish the Regional Director a $200,000 bond that guarantees compliance with all the terms and conditions of the lease by the earliest of:
(A) The date you submit a proposed exploration plan (EP) for approval; or
(B) The date you submit a request for approval of the assignment of a lease on which an EP has been approved.
(ii) The Regional Director may authorize you to submit the $200,000 lease exploration bond after you submit an EP, but before approval of drilling activities under the EP.
(iii) You may satisfy the bond requirement of this paragraph (a) by providing a new bond or by increasing the amount of your existing bond.
(2) A $200,000 lease exploration bond pursuant to paragraph (a)(1) of this section need not be submitted and maintained if the lessee either:
(i) Furnishes and maintains an areawide bond in the sum of $1 million issued by a qualified surety and conditioned on compliance with all the terms and conditions of oil and gas and sulfur leases held by the lessee on the OCS for the area in which the lease is situated; or
(ii) Furnishes and maintains a bond pursuant to paragraph (b)(2) of this section.
(b) This paragraph explains what bonds you (the lessee) must provide before lease development and production activities commence.
(1)(i) You must furnish the Regional Director a $500,000 bond that guarantees compliance with all the terms and conditions of the lease by the earliest of:
(A) The date you submit a proposed development and production plan (DPP) or development operations coordination document (DOCD) for approval; or
(B) The date you submit a request for approval of the assignment of a lease on
(ii) The Regional Director may authorize you to submit the $500,000 lease development bond after you submit a DPP or DOCD, but before he/she approves the installation of a platform or the commencement of drilling activities under the DPP or DOCD.
(iii) You may satisfy the bond requirement of this paragraph by providing a new bond or by increasing the amount of your existing bond.
(2) You need not submit and maintain a $500,000 lease development bond pursuant to paragraph (b)(1) of this section if you furnish and maintain an areawide bond in the sum of $3 million issued by a qualified surety and conditioned on compliance with all the terms and conditions of oil and gas and sulfur leases you hold on the OCS for the area in which the lease is located.
(c) If you can demonstrate to the satisfaction of the authorized officer that you can satisfy your decommissioning obligations for less than the amount of lease bond coverage required under paragraph (b)(1) of this section, the authorized officer may accept a lease surety bond in an amount less than the prescribed amount, but not less than the amount of the cost for decommissioning.
(d) The Regional Director may determine that additional security (
(1) The Regional Director's determination will be based on his/her evaluation of your ability to carry out present and future financial obligations demonstrated by:
(i) Financial capacity substantially in excess of existing and anticipated lease and other obligations, as evidenced by audited financial statements (including auditor's certificate, balance sheet, and profit and loss sheet);
(ii) Projected financial strength significantly in excess of existing and future lease obligations based on the estimated value of your existing OCS lease production and proven reserves for future production;
(iii) Business stability based on five years of continuous operation and production of oil and gas or sulfur in the OCS or in the onshore oil and gas industry;
(iv) Reliability in meeting obligations based on:
(A) Credit rating; or
(B) Trade references, including names and addresses of other lessees, drilling contractors, and suppliers with whom you have dealt; and
(v) Record of compliance with laws, regulations, and lease terms.
(2) You may satisfy the Regional Director's demand for additional security by increasing the amount of your existing bond or by providing additional bond or bonds.
(e) The Regional Director will determine the amount of additional bond required to guarantee compliance. The Regional Director will consider potential underpayment of royalty and cumulative decommissioning obligations.
(f) If your cumulative potential obligations and liabilities either increase or decrease, the Regional Director may adjust the amount of additional bond required.
(1) If the Regional Director proposes an adjustment, the Regional Director will:
(i) Notify you and the surety of any proposed adjustment to the amount of bond required; and
(ii) Give you an opportunity to submit written or oral comment on the adjustment.
(2) If you request a reduction of the amount of additional bond required, you must submit evidence to the Regional Director demonstrating that the projected amount of royalties due the Government and the estimated costs of decommissioning are less than the required bond amount. If the Regional Director finds that the evidence you submit is convincing, the Regional Director may reduce the amount of additional bond required.
(a) Any bond or other security that you, as lessee, operating rights owner or operator, provide under this part must:
(1) Be payable upon demand to the Regional Director;
(2) Guarantee compliance with all of your obligations under the lease, regulations in this chapter, and regulations under 30 CFR chapters II and XII; and
(3) Guarantee compliance with the obligations of all lessees, operating rights owners and operators on the lease.
(b) All bonds and pledges you furnish under this part must be on a form or in a form approved by the Director. Surety bonds must be issued by a surety that the Treasury certifies as an acceptable surety on Federal bonds and that is listed in the current Treasury Circular No. 570. You may obtain a copy of the current Treasury Circular No. 570 from the Surety Bond Branch, Financial Management Service, Department of the Treasury, East-West Highway, Hyattsville, MD 20782.
(c) You and a qualified surety must execute your bond. When either party is a corporation, an authorized official for the party must sign the bond and attest to it by an imprint of the corporate seal.
(d) Bonds must be non-cancellable, except as provided in § 556.906 of this part. Bonds must continue in full force and effect even though an event occurs that could diminish, terminate, or cancel a surety obligation under State surety law.
(e) Lease bonds must be:
(1) A surety bond;
(2) Treasury securities as provided in § 556.900(f);
(3) Another form of security approved by the Regional Director; or
(4) A combination of these security methods.
(f) You may submit a bond to the Regional Director executed on a form approved under paragraph (b) of this section that you have reproduced or generated by use of a computer. If you do, and if the document omits terms or conditions contained on the form approved by the Director, the bond you submit will be deemed to contain the omitted terms and conditions.
(a) If your surety becomes bankrupt, insolvent, or has its charter or license suspended or revoked, any bond coverage from that surety terminates immediately. In that event, you must promptly provide a new bond in the amount required under §§ 556.900 and 556.901 to the Regional Director and advise the Regional Director of the lapse in your previous bond.
(b) You must notify the Regional Director of any action filed alleging that you, your surety, or your guarantor are insolvent or bankrupt. You must notify the Regional Director within 72 hours of learning of such an action. All bonds must require the surety to provide this information to you and directly to BOEM.
(a) The Regional Director may authorize you to establish a lease-specific abandonment account in a federally insured institution in lieu of the bond required under § 556.901(d). The account must provide that, except as provided in paragraph (a)(3) of this section, funds may not be withdrawn without the written approval of the Regional Director.
(1) Funds in a lease-specific abandonment account must be payable
(2) You must fully fund the lease-specific abandonment account to cover all decommissioning costs as estimated by BOEM within the timeframe the Regional Director prescribes.
(3) You must provide binding instructions under which the institution managing the account is to purchase Treasury securities pledged to BOEM under paragraph (d) of this section.
(b) Any interest paid on funds in a lease-specific abandonment account will be treated as other funds in the account unless the Regional Director authorizes in writing the payment of interest to the party who deposits the funds.
(c) The Regional Director may allow you to pledge Treasury securities that are made payable upon demand to the Regional Director to satisfy your obligation to make payments into a lease-specific abandonment account.
(d) Before the amount of funds in a lease-specific abandonment account equals the maximum insurable amount as determined by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, the institution managing the account must use the funds in the account to purchase Treasury securities pledged to BOEM under paragraph (c) of this section. The institution managing the lease specific-abandonment account will join with the Regional Director to establish a Federal Reserve Circular 154 account to hold these Treasury securities, unless the Regional Director authorizes the managing institution to retain the pledged Treasury securities in a separate trust account. You may obtain a copy of the current Treasury Circular No. 154 from the Surety Bond Branch, Financial Management Service, Department of the Treasury, East-West Highway, Hyattsville, MD 20782.
(e) The Regional Director may require you to create an overriding royalty or production payment obligation for the benefit of a lease-specific account pledged for the decommissioning of a lease. The required obligation may be associated with oil and gas or sulfur production from a lease other than the lease bonded through the lease-specific abandonment account.
(a)
(1) The guarantee meets the criteria in paragraph (c) of this section;
(2) The guarantee includes the terms specified in paragraph (d) of this section;
(3) The guarantor's total outstanding and proposed guarantees do not exceed 25 percent of its unencumbered net worth in the United States; and
(4) The guarantor submits an indemnity agreement meeting the criteria in paragraph (e) of this section.
(b)
(1) Notify the Regional Director immediately; and
(2) Cease production until you comply with the bond coverage requirements of this subpart.
(c)
(1) The period of time that your third-party guarantor (guarantor) has been in continuous operation as a business entity where:
(i) Continuous operation is the time that your guarantor conducts business immediately before you post the guarantee; and
(ii) Continuous operation excludes periods of interruption in operations that are beyond your guarantor's control and that do not affect your guarantor's likelihood of remaining in business during exploration, development, production, and decommissioning.
(2) Financial information available in the public record or submitted by your guarantor, on your guarantor's own initiative, in sufficient detail to show to the Regional Director's satisfaction that your guarantor is qualified based on:
(i) Your guarantor's current rating for its most recent bond issuance by either Moody's Investor Service or Standard and Poor's Corporation;
(ii) Your guarantor's net worth, taking into account liabilities under its guarantee of compliance with all the terms and conditions of your lease, the regulations in this chapter and 30 CFR chapters II and XII, and your guarantor's other guarantees;
(iii) Your guarantor's ratio of current assets to current liabilities, taking into account liabilities under its guarantee of compliance with all the terms and conditions of your lease, the regulations in this chapter and 30 CFR chapters II and XII, and your guarantor's other guarantees; and
(iv) Your guarantor's unencumbered fixed assets in the United States.
(3) When the information required by paragraph (c) of this section is not publicly available, your guarantor may submit the information in the following table. Your guarantor must update the information annually within 90 days of the end of the fiscal year or by the date prescribed by the Regional Director.
(d)
(1) If you, your operator, or an operating rights owner fails to comply with any lease term or regulation, your guarantor must either:
(i) Take corrective action; or,
(ii) Be liable under the indemnity agreement to provide, within 7 calendar days, sufficient funds for the Regional Director to complete corrective action.
(2) If your guarantor complies with paragraph (d)(1) of this section, this compliance will not reduce its liability.
(3) If your guarantor wishes to terminate the period of liability under its guarantee, it must:
(i) Notify you and the Regional Director at least 90 days before the proposed termination date;
(ii) Obtain the Regional Director's approval for the termination of the period of liability for all or a specified portion of your guarantor's guarantee; and
(iii) Remain liable for all work and workmanship performed during the period that your guarantor's guarantee is in effect.
(4) You must provide a suitable replacement security instrument before the termination of the period of liability under your third-party guarantee.
(e)
(1) The indemnity agreement must be executed by your guarantor and all persons and parties bound by the agreement.
(2) The indemnity agreement must bind each person and party executing the agreement jointly and severally.
(3) When a person or party bound by the indemnity agreement is a corporate entity, two corporate officers who are authorized to bind the corporation must sign the indemnity agreement.
(4) Your guarantor and the other corporate entities bound by the indemnity agreement must provide the Regional Director copies of:
(i) The authorization of the signatory corporate officials to bind their respective corporations;
(ii) An affidavit certifying that the agreement is valid under all applicable laws; and
(iii) Each corporation's corporate authorization to execute the indemnity agreement.
(5) If your third-party guarantor or another party bound by the indemnity agreement is a partnership, joint venture, or syndicate, the indemnity agreement must:
(i) Bind each partner or party who has a beneficial interest in your guarantor; and
(ii) Provide that, upon demand by the Regional Director under your third-party guarantee, each partner is jointly and severally liable for compliance with all terms and conditions of your lease.
(6) When forfeiture is called for under § 556.907, the indemnity agreement must provide that your guarantor will either:
(i) Bring your lease into compliance; or
(ii) Provide, within 7 calendar days, sufficient funds to permit the Regional Director to complete corrective action.
(7) The indemnity agreement must contain a confession of judgment. It must provide that, if the Regional Director determines that you, your operator, or an operating rights owner is in default of the lease, the guarantor:
(i) Will not challenge the determination; and
(ii) Will remedy the default.
(8) Each indemnity agreement is deemed to contain all terms and conditions contained in this paragraph (e), even if the guarantor has omitted them.
This section defines the terms and conditions under which BOEM will terminate the period of liability of a bond or cancel a bond. Terminating the period of liability of a bond ends the period during which obligations continue to accrue, but does not relieve the surety of the responsibility for obligations that accrued during the period of liability. Canceling a bond relieves the surety of all liability. The liabilities that accrue during a period of liability include obligations that started to accrue prior to the beginning of the period of liability and had not been met, and obligations that begin accruing during the period of liability.
(a) When you or the surety under your bond requests termination:
(1) The Regional Director will terminate the period of liability under your bond within 90 days after BOEM receives the request; and
(2) If you intend to continue operations, or have not met all decommissioning obligations, you must provide a replacement bond of an equivalent amount.
(b) If you provide a replacement bond, the Regional Director will cancel your previous bond and the surety that provided your previous bond will not retain any liability, provided that:
(1) The new bond is equal to or greater than the bond that was terminated, or you provide an alternative form of security, and the Regional Director determines that the alternative form of security provides a level of security equal to or greater than that provided for by the bond that was terminated;
(2) For a base bond submitted under § 556.900(a) or under § 556.901(a) or (b), the surety issuing the new bond agrees to assume all outstanding liabilities that accrued during the period of liability that was terminated; and
(3) For additional bonds submitted under § 556.901(d), the surety issuing the new additional bond agrees to assume that portion of the outstanding liabilities that accrued during the period of liability that was terminated and that the Regional Director determines may exceed the coverage of the base bond, and of which the Regional Director notifies the provider of the bond.
(c) This paragraph applies if the period of liability is terminated for a bond, but the bond is not replaced by a bond of an equivalent amount. The surety that provided your terminated bond will continue to be responsible for accrued obligations:
(1) Until the obligations are satisfied; and
(2) For additional periods of time in accordance with paragraph (d) of this section.
(d) When your lease expires or is terminated, the surety that issued a bond will continue to be responsible, and the Regional Director will retain other forms of security as shown in the following table:
(e) For all bonds, the Regional Director may reinstate your bond as if no cancellation or release had occurred if:
(1) A person makes a payment under the lease and the payment is rescinded or must be repaid by the recipient because the person making the payment is insolvent, bankrupt, subject to reorganization, or placed in receivership; or
(2) The responsible party represents to BOEM that it has discharged its obligations under the lease, and the representation was materially false when the bond was canceled or released.
This section explains how a bond or other security may be forfeited.
(a) The Regional Director will call for forfeiture of all or part of the bond, other form of security, or guarantee you provide under this part if:
(1) You (the party who provided the bond) refuse, or the Regional Director determines that you are unable to comply with any term or condition of your lease; or
(2) You default on one of the conditions under which the Regional Director accepts your bond, third-party guarantee, and/or other form of security.
(b) The Regional Director may pursue forfeiture of your bond without first making demands for performance against any lessee, operating rights owner, or other person authorized to perform lease obligations.
(c) The Regional Director will:
(1) Notify you, the surety on your bond or other form of security, and any third-party guarantor of a determination to call for forfeiture of the bond, security, or guarantee under this section.
(i) This notice will be in writing, and will provide the reason for the forfeiture and the amount to be forfeited.
(ii) The Regional Director must base the amount he/she determines is forfeited upon his/her estimate of the total cost of corrective action to bring your lease into compliance.
(2) Advise you, your third-party guarantor, and any surety that you, your guarantor, and any surety may avoid forfeiture if, within five working days:
(i) You agree to, and demonstrate that you will bring your lease into compliance within the timeframe that the Regional Director prescribes;
(ii) Your third-party guarantor agrees to and demonstrates that it will complete the corrective action to bring your lease into compliance within the timeframe that the Regional Director prescribes; or
(iii) Your surety agrees to and demonstrates that it will bring your lease into compliance within the timeframe that the Regional Director prescribes, even if the cost of compliance exceeds the face amount of the bond or other surety instrument.
(d) If the Regional Director finds you are in default, he/she may cause the forfeiture of any bonds and other security deposited as your guarantee of compliance with the terms and conditions of your lease and the regulations in this chapter and 30 CFR chapters II and XII.
(e) If the Regional Director determines that your bond and/or other security is forfeited, the Regional Director will:
(1) Collect the forfeited amount; and
(2) Use the funds collected to bring your leases into compliance and to correct any default.
(f) If the amount the Regional Director collects under your bond and other security is insufficient to pay the full cost of corrective actions he/she may:
(1) Take or direct action to obtain full compliance with your lease and the regulations in this chapter; and
(2) Recover from you, any co-lessee, operating rights owner, and/or any third-party guarantor responsible under this subpart all costs in excess of the amount he/she collects under your forfeited bond and other security.
(g) The amount that the Regional Director collects under your forfeited bond and other security may exceed the costs of taking the corrective actions required to obtain full compliance with the terms and conditions of your lease and the regulations in this chapter and 30 CFR chapters II and XII. In this case, the Regional Director will return the excess funds to the party from whom they were collected.
Bonus or royalty credits were available to lessees with leases:
(a) In effect on December 20, 2006, and located in:
(1) The Eastern Planning Area and within 125 miles of the coastline of the State of Florida; or,
(2) The Central Planning Area and within the Desoto Canyon OPD, the Destin Dome OPD, or the Pensacola OPD and within 100 miles of the coastline of the State of Florida.
(b) The deadline for applying for such a bonus or royalty credit was October 14, 2010; therefore, lessees may no longer apply for such credits.
(a) Your oil and gas lease will automatically expire at the end of its primary term unless you have taken action, as set forth in § 556.601, to maintain the lease beyond the primary term.
(b) Your sulfur lease will automatically expire at the end of its primary term unless you have taken action, as set forth in § 556.603, to maintain the lease beyond the primary term.
(a) A record title owner may relinquish a lease or an aliquot part of a lease if all record title owners of a lease or any aliquot part(s) of the lease file three original copies of a request to relinquish with BOEM on Form BOEM-0152, entitled, “Relinquishment of Federal Oil and Gas Lease.” No filing fee is required.
(b) A relinquishment will be subject to the continued obligation of the record title owner and the surety to make all payments due, including any accrued rentals, royalties and deferred bonuses, and to abandon all wells and condition or remove all platforms and other facilities on the land to be relinquished to the satisfaction of the Director.
(c) The effective date of the relinquishment is the date on which the relinquishment is filed with the proper BOEM regional office.
(a) BOEM may cancel your non-producing lease if you fail to comply with any provision of OCSLA, the lease, or applicable regulations if the failure continues for 30 days after mailing of notice to your post office address of record by registered mail and you have not requested and been granted any additional time within which to correct the failure. Such cancellation is subject to judicial review under section 23 of OCSLA (43 U.S.C. 1349).
(b) Your producing lease may be cancelled if you fail to comply with any provision of OCSLA, the lease, or applicable regulations. The Secretary will cancel a producing lease after the judicial proceedings required under section 5(d) of OCSLA (43 U.S.C. 1334(d)).
(c) BOEM may cancel your lease if it determines that the lease was obtained by fraud or misrepresentation. You will have notice and an opportunity to be heard before BOEM cancels your lease.
(d) BOEM may cancel your lease at any time if it determines, after a hearing, that continued activity will probably cause serious harm or damage to life (including fish and other aquatic life), property, any mineral, national security or defense, or the marine, coastal, or human environment; that the threat of harm or damage will not disappear or decrease to an acceptable level within a reasonable period of time; and the advantages of cancellation outweigh the advantages of continuing the lease.
(e) BOEM may cancel your lease at any time after operations under the lease have been suspended or temporarily prohibited by the Department continuously for a period of five years pursuant to paragraph (d) of this section, absent your request for a shorter period.
(f) If, upon demand, you fail to provide a bond, or alternative type of security instrument acceptable to BOEM, the Regional Director may assess penalties or cancel your lease in accordance with part 550, subpart N of this chapter;
(g) Title 30, part 550, subpart A of the CFR provides the procedures for lease cancellation and compensation, if applicable.
(a) All regulations in this part, insofar as they are applicable, will supersede the provisions of any lease that is maintained under section 6(a) of the Act. However, the provisions of a lease relating to area, minerals, rentals, royalties (subject to sections 6(a)(8) and (9) of the Act), and term (subject to section 6(a)(10) of the Act and, as to sulfur, subject to section 6(b)(2) of the Act) will continue in effect, and, in the event of any conflict or inconsistency, will take precedence over these regulations.
(b) A lease maintained under section 6(a) of the Act is also subject to all operating and conservation regulations applicable to the OCS. In addition, the regulations relating to geophysical and geological exploratory operations and to pipeline ROW(s) are applicable, to the extent that those regulations are not contrary to or inconsistent with the lease provisions relating to area, minerals, rentals, royalties and term. The lessee must comply with any provision of the lease as validated, the subject matter of which is not covered in the regulations in this part.
The existence of an oil and gas lease maintained under section 6(a) of the Act precludes only the issuance in the same area of an oil and gas lease under OCSLA, but does not preclude the issuance of other types of leases under OCSLA. However, no other lease may authorize or permit the lessee thereunder unreasonably to interfere with or endanger operations under the existing lease. The United States will not grant any sulfur leases on any area that is included in a lease covering sulfur under section 6(b) of the Act.
(a) The Director will conduct a study or studies of any area or region included in any oil and gas lease sale or other lease in order to establish information needed for assessment and management of impacts on the human, marine and coastal environments which may be affected by OCS oil and gas or other mineral activities in such area or region. The purposes of such studies will include, to the extent practicable, analyses of the impacts of pollutants introduced into the environments and impacts of offshore activities on the seabed and affected coastal areas.
(b) Studies will be planned and carried out in cooperation with the affected States and interested parties and, to the extent possible, will not duplicate studies done under other laws. Where appropriate, the Director will, to the maximum extent practicable, coordinate with the National Oceanic and Atmospheric Administration (NOAA) in executing its environmental studies responsibilities. The Director may also make agreements for the coordination with, or the use of the services or resources of, any other Federal, State or local government agency in the conduct of such studies.
(c) Any study of an area or region required by paragraph (a) of this section for a lease sale will be commenced not later than six months prior to holding a lease sale for that area. The Director may use information collected in any prior study. The Director may initiate studies for an area or region not identified in the leasing program.
(d) After the leasing and developing of any area or region, the Director will conduct such studies as are deemed necessary to establish additional information and will monitor the human, marine and coastal environments of such area or region in a manner designed to provide information, which can be compared with the results of studies conducted prior to OCS oil and gas development. This will be done to identify any significant changes in the quality and productivity of such environments, to establish trends in the area studies, and to design experiments identifying the causes of such changes. Findings from such studies will be used to recommend modifications in practices that are employed to mitigate the effects of OCS activities and to enhance the data/information base for predicting impacts which might result from a single lease sale or cumulative OCS activities.
(e) Information available or collected by the studies program will, to the extent practicable, be provided in a form and in a timeframe that can be used in the decision-making process associated with a specific leasing action or with longer term OCS minerals management responsibilities.
Section 104, Public Law 97-451, 96 Stat. 2451 (30 U.S.C. 1714), Public Law 109-432, Div C, Title I, 120 Stat. 3000; 30 U.S.C. 1751; 31 U.S.C. 9701; 43 U.S.C. 1334; 33 U.S.C. 2704, 2716; E.O. 12777, as amended; 43 U.S.C. 1331
(a) The Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1334) (“Outer Continental Shelf Lands Act Amendments of 1978”).
(b) The Federal Oil and Gas Royalty Management Act, as amended (FOGRMA) (30 U.S.C. 1711), including the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996, (30 U.S.C. 1701 note).
(c) The Independent Offices Appropriations Act of 1952 (31 U.S.C. 9701).
(d) Public Law 89-554, 1966 (5 U.S.C. 301).
(a) Terms used in this part have the meaning given in the Act and as defined in this part.
(b) The following definitions apply to this part:
Notwithstanding any other provision in the regulations in this part, BOEM may issue a lease containing an operating allowance when so specified in the final notice of sale and the lease. The allowance amount or formula will be specified in the final notice of sale and in the lease.
(a) BOEM may notify you that it will allow or request you to submit the following information electronically through BOEM's secure electronic filing system, through an alternate secure electronic filing system supported and maintained by the Department, or through some other electronic filing system that BOEM has approved for this purpose:
(1) Any document(s) or information described in the Qualifications section of part 556 of this chapter, as specified in subpart E. Such information would include, but not be limited to, the official name of the qualifying person, its legal and business address or addresses, its legal form and status, and the names and contact information of a person or organization authorized to act on the person's behalf.
(2) Any document(s) or information required to obtain BOEM's approval of an assignment or sublease, including any form or instrument that creates or transfers ownership of a lease interest.
(3) Any document(s) or information required to obtain BOEM's approval of your relinquishment of all, or any aliquot part of your lease, as specified in § 556.1101 of this chapter.
(4) Any document(s) creating, transferring or assigning economic interests, as specified in §§ 556.715 and 556.808 of this chapter.
(5) Any document(s) related to a bond, U.S. Treasury note or other security provided to BOEM, which is required to guarantee your compliance with terms and conditions of a lease.
(6) Any document(s) or information necessary to bid for an OCS lease.
(7) Any forms, document(s) or information necessary to determine worst case oil-spill discharge volume(s), or to provide evidence demonstrating oil spill financial responsibility, or to guarantee such financial responsibility or to comply with any other requirements of the Oil Spill Financial Responsibility Program, as described in part 553 of this chapter.
(b) BOEM reserves the right to require the electronic filing of any document(s) or information addressed in paragraph (a)(5) of this section upon a 90-day notice published in the
(c) In the event BOEM sends documents to you in a secure electronic format, you may either return the document(s) in an electronic format utilizing the same secure transmission mechanism or print the document(s) and return them.
(d) BOEM may electronically acknowledge, approve, sign, or execute any document(s) referenced in this section.
The confidentiality of any electronically submitted information will be maintained for the same proprietary term that would apply to the corresponding non-electronic confidential submission, pursuant to § 556.104(b) of this chapter.
Any document or information referenced in § 560.500 which is submitted to BOEM through a secure electronic filing system that is approved by BOEM will be legally binding, without the need for a paper copy thereof.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA has determined this rule is necessary to amend the Qualification Performance Standards for flight simulation training devices (FSTDs) for the primary purpose of improving existing technical standards and introducing new technical standards for full stall and stick pusher maneuvers, upset recognition and recovery maneuvers, maneuvers conducted in airborne icing conditions, takeoff and landing maneuvers in gusting crosswinds, and bounced landing recovery maneuvers. These new and improved technical standards are intended to fully define FSTD fidelity requirements for conducting new flight training tasks introduced through recent changes to the air carrier training requirements, as well as to address various National Transportation Safety Board (NTSB) and Aviation Rulemaking Committee recommendations. This final rule also updates the FSTD technical standards to better align with the current international FSTD evaluation guidance and introduces a new FSTD level that expands the number of qualified flight training tasks in a fixed-base flight training device. These changes will ensure that the training and testing environment is accurate and realistic, will codify existing practice, and will provide greater harmonization with international guidance for simulation. The amendments will not apply to previously qualified FSTDs with the exception of the FSTD Directive, which codifies the new FSTD technical standards for specific training tasks.
Effective May 31, 2016. The compliance date of FSTD Directive No. 2 is March 12, 2019. After this date, any FSTD being used to conduct specific training tasks as defined in FSTD Directive No. 2 must be evaluated and qualified in accordance with the Directive.
For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the
For technical questions concerning this action, contact Larry McDonald, Air Transportation Division/National Simulator Program Branch, AFS-205, Federal Aviation Administration, P.O. Box 20636, Atlanta, GA 30320; telephone (404) 474-5620; email
The Federal Aviation Administration's (FAA's) authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106(f) describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in 49 U.S.C. 44701(a)(5), which requires the Administrator to promulgate regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security. This amendment to the regulation is within the scope of that authority because it prescribes an accepted method for testing and evaluating flight simulation training devices used to train and evaluate flightcrew members.
In addition, the Airline Safety and Federal Aviation Administration Extension Act of 2010 (Pub. L. 111-216) specifically required the FAA to conduct rulemaking to ensure that all flightcrew members receive flight training in recognizing and avoiding stalls, recovering from stalls, and recognizing and avoiding upset of an aircraft, as well as the proper techniques to recover from upset. This rulemaking is within the scope of the authority in Public Law 111-216 and is necessary to fully implement the training requirements recently adopted in the Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers final rule (Crewmember and Aircraft Dispatcher Training final rule), RIN 2120-AJ00. See 78 FR 67800 (Nov. 12, 2013).
This rulemaking defines simulator fidelity requirements for new training tasks to be conducted in Level A through D full flight simulators (FFS) that were mandated for air carrier training programs by Public Law 111-216 and incorporated into 14 CFR part 121. It also addresses the potential lack of simulator fidelity as identified in several NTSB safety recommendations. This final rule establishes new and updated FSTD technical evaluation standards for full stall and stick pusher maneuvers, upset prevention and recovery maneuvers, flight in airborne icing conditions, takeoff and landing maneuvers in gusting crosswinds, and bounced landing recovery maneuvers. This final rule also partially aligns the technical standards for Level C and D (fixed wing) FSTDs that are defined in 14 CFR part 60 with the current international FSTD evaluation guidelines published in the International Civil Aviation Organization (ICAO) document 9625, Edition 4,
This final rule will affect sponsors of previously qualified FSTDs if the devices will be used to conduct the specific training tasks defined in FSTD Directive No. 2. The FSTD sponsor has the discretion to determine if a device needs to be qualified based on whether it will be used for training the defined tasks in FSTD Directive No. 2. Additionally, because many of the technical FSTD evaluation standards in the final rule will become minimum requirements for some newly qualified FSTDs, this final rule will also affect sponsors of Level 7, Level C, and Level D FSTDs that are initially qualified after the effective date of the final rule. In addition to FSTD sponsors, this final rule will also affect data providers, FSTD manufacturers, and other entities that provide products and support to FSTD sponsors in the qualification of FSTDs for training. This final rule does not affect aviation training devices that are evaluated and approved for use outside of 14 CFR part 60.
A general summary of the applicability, compliance dates, and processes used to qualify FSTDs as defined in this rule are included in the following table:
The FAA estimates that it will cost $72.7 million to make the necessary modifications to previously qualified FSTDs which will enable training required by the new Crewmember and Aircraft Dispatcher Training final rule. The training cost for the Crewmember and Aircraft Dispatcher Training final rule provides rental revenue to simulator sponsors which will fully compensate them for their FSTD modification expenses. These simulator revenues were accounted for as costs of the additional training and were fully justified by the benefits in that final rule. The FAA estimates it will cost $1.3 million for the evaluation and modification of engine and airframe icing models which will enhance existing training requirements. If these modifications prevent only one severe injury the benefits will exceed the costs. The estimated cost of $6.9 million to align standards with ICAO will result in improved safety and cost savings.
The costs and benefits of this rule are presented in the table below.
In order to mitigate aircraft loss of control accidents and to comply with the requirements of Public Law 111-216, the FAA has issued new and revised flight training requirements in the Crewmember and Aircraft Dispatcher Training final rule for flight maneuvers such as full stall and upset recovery training. In support of this effort, the FAA participated in a number of collaborative industry and government working groups that examined loss of control training requirements and the flight simulation training device (FSTD) fidelity needed to support such training. These working groups included the International Committee on Aviation Training in Extended Envelopes (ICATEE), the Industry Stall and Stick Pusher Working Group, the Stick Pusher and Adverse Weather Event Training Aviation Rulemaking Committee (SPAW ARC), and the Loss of Control Avoidance and Recovery Training (LOCART) Working Group.
Through participation in these working groups and in consideration of the formal recommendations received from the SPAW ARC, the FAA determined that many existing FSTDs that could be used by air carriers to conduct such training may not adequately represent the simulated aircraft for the required training tasks. Additionally, the FAA evaluated several recent air carrier accidents and associated NTSB accident reports and determined that low FSTD fidelity or the lack of ability for an FSTD to adequately conduct certain training tasks may have been a contributing factor in these accidents.
Furthermore, since the initial publication of the part 60 final rule in 2008, the international FSTD qualification guidance published in the ICAO 9625 document has been updated to incorporate general improvements to new aircraft and simulation technology and the introduction of new FSTD levels that better align FSTD fidelity with required training tasks. The ICAO 9625 document is an internationally recognized set of FSTD evaluation guidelines that was developed by government and industry experts on flight simulation training and technology and has been used as a basis for national regulation and guidance material for FSTD evaluation in many countries. Internationally aligned FSTD standards facilitate cost savings for FSTD operators because they can reduce the number of different FSTD designs, as well as reduce the amount of redundant supporting documentation that are required to meet multiple national regulations and standards for FSTD qualification.
This final rule was developed using recommendations from the SPAW ARC
This proposal will incorporate changes into part 60 that address, at least in part, the following NTSB Safety Recommendations through improved FSTD evaluation standards to support required training tasks:
1. Stall training and/or stick pusher training (Recommendations A-10-22, A-10-23, A-97-47, A-07-3, and A-10-24);
2. Upset Recognition and recovery training (Recommendations A-04-62 and A-96-120);
3. Engine and airframe icing training (Recommendations A-11-46 and A-11-47)
4. Takeoff and landing training in gusting crosswind conditions (Recommendations A-10-110 and A-10-111); and
5. Bounced landing training (Recommendations A-00-93 and A-11-69).
On August 1, 2010, President Obama signed into law Public Law 111-216. In addition to extending the FAA's authorization, Public Law 111-216 included provisions to improve airline safety and pilot training. Specifically, section 208 of Public Law 111-216, Implementation of NTSB Flight Crewmember Training Recommendations, pertains directly to this rulemaking in that stall training and upset recovery training were mandated for part 121 air carrier flightcrew members.
On November 12, 2013, the FAA published the Crewmember and Aircraft Dispatcher Training final rule, adding the training tasks required by Public Law 111-216 that specifically target extended envelope training, recovery from bounced landings, enhanced runway safety training, and enhanced training on crosswind takeoffs and landings with gusts, which further requires that these maneuvers be completed in an FSTD. As a result, revisions to all part 121 training programs will be necessary prior to March 12, 2019 and the revisions to part
On July 10, 2014, the FAA published an NPRM (79 FR 39461), proposing changes to the flight simulation training device (FSTD) technical evaluation standards. The primary purpose of the NPRM was to establish and update FSTD technical evaluation standards to address new training tasks required by the Crewmember and Dispatcher Training final rule, including full stall training, upset prevention and recovery training, and other new training tasks. Additionally, the NPRM proposed the incorporation of FSTD evaluation criteria as defined in the International Civil Aviation Organization (ICAO) 9625,
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6.
In general, the proposed amendments to the part 60 QPS would only be applicable to FSTDs that are initially qualified or upgraded in qualification level after the final rule becomes effective. Because many previously qualified FSTDs will likely be used to accomplish the training tasks required by the Crewmember and Dispatcher Training final rule, the FAA also proposed an FSTD Directive in order to retroactively apply evaluation requirements for those previously qualified FSTDs that will be used to conduct certain training tasks, including full stall, upset prevention and recovery training, engine and airframe icing, takeoff and landing in gusting crosswinds, and bounced landing recovery training.
On September 16, 2014, the FAA extended the comment period of the NPRM for an additional 90 days (79 FR 55407). The comment period closed on January 6, 2015. The FAA received approximately 675 individual comments in response to the NPRM. Commenters included air carriers, simulator training providers, FSTD data providers, FSTD manufacturers, the NTSB, labor organizations, trade associations, aircraft manufacturers, and individuals.
As a result of the comments received on the NPRM, the FAA made several changes to the final rule. A summary of significant changes as a result of comments are highlighted in the following table:
As a result of information gathered from various working groups, the FAA has taken action on loss of control training and simulator fidelity deficiencies by issuing the following voluntary guidance material:
1. FAA Safety Alert for Operators (SAFO 10012)—Possible Misinterpretation of the Practical Test Standards (PTS) Language “Minimal Loss of Altitude.” The purpose of this alert bulletin is to clarify the meaning of the approach to stall evaluation criteria as it relates to “minimal loss of altitude” in the Airline Transport Pilot PTS;
2. FAA Information for Operators Bulletin (InFO 10010)—Enhanced Upset Recovery Training. This information bulletin recommends the incorporation of the material in the AURTA into flightcrew training. The AURTA contains guidance for upset recovery training programs for air carrier flightcrews, as well as the evaluation guidance for FSTDs used in such training;
3. FAA Information for Operators Bulletin (InFO 15004)—Use of Windshear Models in FAA Qualified Flight Simulation Training Devices (FSTDs);
4. FAA National Simulator Program (NSP) Guidance Bulletin No. 11-04—FSTD Modeling and Evaluation Recommendations for Engine and Airframe Icing;
5. FAA National Simulator Program (NSP) Guidance Bulletin No. 11-05—FSTD Evaluation Recommendations for Upset Recovery Training Maneuvers;
6. FAA National Simulator Program (NSP) Guidance Bulletin No. 14-01—FSTD Evaluation Guidelines for Full Stall Training Maneuvers;
7. AC 120-109A—Stall and Stick Pusher Training;
8. AC 120-111—Upset Prevention and Recovery Training; and
9. Airline Transport Pilot Practical Test Standards (Change 4).
Portions of the above guidance material provide FSTD operators with recommended evaluation methods to improve FSTD fidelity for selected training tasks. To ensure that all FSTDs used to conduct such training are evaluated and modified to a consistent standard, the applicable part 60
The existing FSTD evaluation requirements for stall maneuvers are generally limited to the evaluation of stall speeds with little emphasis on the actual aircraft performance and handling characteristics as the aircraft exceeds the stall warning AOA. As a result, FSTDs used for such training may not provide the necessary cues and associated performance degradation needed to train flight crews in the recognition of an impending stall as well as training the techniques needed to recover from a stalled flight condition. In the NPRM, the FAA proposed updated general requirements, objective testing requirements, and functions and subjective testing requirements for the evaluation of full stall training maneuvers to support air carrier training as required in the Crewmember and Aircraft Dispatcher Training final rule.
In order to support the required training objectives, the proposal included requirements for the modeling and evaluation of the FSTD's stall characteristics up to 10 degrees beyond the stall AOA.
CAE, Inc. (CAE) commented that the 10 degrees beyond the stall AOA requirement should be further reviewed, since application of the recovery should immediately lead to a reduction in AOA and therefore is inappropriate to relate the requirement to the 10 degrees beyond the stall AOA. CAE recommended that the 10 degree requirement be removed where rationale is provided for the upper limit of AOA modeling in the required SOC.
The NTSB is generally supportive of the modeling requirements, citing that a peak AOA growth of about 10 degrees beyond the stall is typical for most incidents and accidents it has investigated. However, it did note that stick pusher response dynamics could cause a higher AOA overshoot and this dynamic behavior is a “critical cue to a stall, which pilots must be trained to recognize.” The NTSB also noted in its comments that the Colgan flight 3407 accident resulted in an AOA that extended to 13 degrees beyond the stall AOA.
The FAA disagrees with CAE that the 10 degree requirement be removed in select cases. The 10 degree AOA range was initially recommended by the SPAW ARC as necessary to accomplish full stall training. Furthermore, this 10 degree AOA range is currently a recommended practice for simulator aerodynamic modeling in the International Air Transport Association (IATA) Flight Simulation Training Device Design and Performance Data Requirements document
The FAA agrees with the NTSB that pilots can benefit from experiencing the aircraft dynamics involved in a stick pusher activation and recovery maneuver in training. The FAA has reviewed the NTSB accident reports and supporting data on two loss of control accidents in which pilots resisted the activation of a stick pusher and encountered an aerodynamic stall. In the Pinnacle Airlines Flight 3701 accident, the initial stick pusher activation occurred at approximately 10.5 degrees AOA at the start of the aircraft upset and the AOA subsequently oscillated from approximately −6 degrees to +14 degrees over three successive stick pusher activations with some instability evident in the roll axis.
In the Colgan 3407 accident, aerodynamic stall occurred before the stick pusher activation
The FAA considered the comments and based on a review of industry recommendations and best practices, has determined that aerodynamic modeling to at least 10 degrees beyond the stall AOA is necessary so that the modeling does not abruptly end should the pilot overshoot the stall recognition and recovery in training. The FAA recognizes that the 10 degree AOA range may not be sufficient to capture all of the flight dynamics involved with multiple severe divergent pitch oscillations where the pilot repeatedly resists a stick pusher system; however, training should not normally be allowed to continue significantly beyond the point where a trainee initially resists the stick pusher before recognizing the stall identification cues and executing the recovery procedures. As demonstrated by the AOA oscillations experienced in the Colgan and Pinnacle accidents, the FAA has determined that aerodynamic modeling to 10 degrees beyond the stall AOA should be sufficient to capture aircraft dynamics in instances where a pilot initially resists the stick pusher activation in training. The data from these accidents suggests that the 10 degree AOA aerodynamic modeling requirement would adequately cover an
In the NPRM, the FAA defined the required aerodynamic model validity range for full stall qualification as 10 degrees of AOA beyond the stall/critical AOA and not as a function of when the stall identification cues are present.
Airbus commented that the definition of stall or full stall should emphasize “heavy buffet” as an important cue. Airbus further cited the ICAO 9625, Edition 4, document
The FAA concurs with Airbus' comment that heavy buffet can be an important cue of a stall. The FAA has further considered the definition of stall as described in the ICAO 9625 document to determine an appropriate definition for stall with respect to the modeling requirements necessary to support the training objectives. The FAA does not fully agree, however, with the ICAO 9625 definition of stall; specifically the criteria of “lack of pitch authority and/or roll control” to define the stall since the part 25 airplane certification requirements state that the pilot must be able to control the aircraft in pitch and roll up to the stall. While control effectiveness can be reduced, it would be incorrect to say that it is lacking for certified airplanes.
Two fundamental objectives of the stall training requirements are to train pilots to recognize the cues of an impending stall as well as to reinforce to pilots that the stall recovery procedures learned during stall prevention training are the same recovery procedures needed to recover from an unintentional full stall. To determine the extent of FSTD aerodynamic modeling necessary to conduct this training, the stall identification AOA must be defined as the point in which the pilot should recognize that the aircraft has stalled and that the stall recovery procedures must be initiated. The FAA has considered both the aircraft certification (part 25) definition of a “clear and distinctive” indication of a stall, as well as the ICAO 9625, Edition 4, stall definition. In order to provide a more consistent definition of the stall AOA to ensure that the required aerodynamic modeling range covers potential overshoots in AOA during stall training, the FAA has amended the final rule to better define stall identification:
i. No further increase in pitch occurs when the pitch control is held on the aft stop for 2 seconds, leading to an inability to arrest descent rate;
ii. An uncommanded nose down pitch that cannot be readily arrested, which may be accompanied by an uncommanded rolling motion;
iii. Buffeting of a magnitude and severity that is a strong and effective deterrent to further increase in AOA; and
iv. The activation of a stick pusher.
Since AOA awareness is a fundamental element of stall training, the instructor must be provided with feedback at the IOS concerning the aircraft's current AOA as well as the stall identification AOA. This feedback will not only provide the instructor with additional awareness concerning the aircraft's current AOA and proximity to the stall, but will also assist the instructor in determining when the aircraft has stalled and that the stall recognition cues have been provided as necessary to support the training objectives. In the final rule, the FAA has amended the IOS feedback requirements for upset prevention and recovery training to include AOA and stall identification AOA parameters.
The FAA further notes that the stall identification cues exhibited by an aircraft can, and often do, vary depending upon the aircraft's configuration (
In the NPRM, the FAA included provisions that did not specifically require objective validation testing at an AOA beyond the activation of a stall identification (stick pusher) system through recovery. The primary purpose of including this provision was to not require the collection of flight test validation data at an AOA that could result in an unrecoverable and dangerous stalled flight condition.
Empresa Brasileira de Aeronautica S.A. (Embraer), Airbus, and an individual commenter questioned why computer controlled aircraft with stall envelope protection systems are treated differently from aircraft equipped with stick pusher systems with respect to model validity ranges and associated objective testing. Delta Airlines, Inc. (Delta) further questioned whether such modeling and testing will be required for an Airbus A350 aircraft that has part 25 special conditions on stall testing for airplane certification.
The FAA notes that Public Law 111-216 and the Crewmember and Aircraft Dispatcher Training final rule require training to be conducted to a stall. The primary purpose for the training is to provide flight crews with experience in recognizing the cues of an impending stall, as well as reinforcing the recovery techniques learned in stall prevention training. To expose flight crews to these stall identification cues, envelope protections systems must typically be disabled in training. Unlike most envelope protection systems, stick pushers are typically installed to either compensate for an inability of the aircraft to meet the part 25 stalling definitions in § 25.201 or the stall characteristics requirements in § 25.203. Where a stick pusher is installed to meet the stall identification requirements of § 25.201, the activation of the stick pusher provides the pilot with a clear and distinctive indication to cease any further increase in AOA. This “clear and distinctive” indication of a stall is necessary to accomplish the training objectives and simply reaching the AOA limits of the envelope protection or “alpha floor” on an envelope protected aircraft will not provide the stall recognition cues that a pilot needs to learn to prevent and recover from a full stall in the event that the envelope protection systems fail. The accident and incident record contains multiple instances of stall envelope protection
The FAA further notes that the FSTD qualification requirement for objective and subjective testing of the stall is not new with this rulemaking. The part 60 standard published in 2008 contains both objective and subjective testing of the stall to include the “g-break” and is required for computer controlled aircraft in a non-normal operational mode.
In the NPRM, the FAA proposed objective testing of stall characteristics for computer controlled aircraft in both normal mode and non-normal mode flight conditions up to the full stall through recovery to normal flight.
Embraer commented that during the developmental flight test campaign, full aerodynamic stalls that are considered hazardous or impractical can only be done if the aircraft is equipped with additional safety features, such as a tail parachute or other equivalent device, and those features obviously change the aircraft behavior during stall recovery if they are employed. Additionally, Embraer emphasized that for safety reasons in the certification flight test campaign, depending upon the aircraft's aerodynamic characteristics during stalls; full aerodynamic stall flight tests are not done in control states in which the stall protection system is not available. Embraer recommended that flight testing for validation should not be required for objective testing in non-normal control states where the stall protection system is not available.
As previously stated, the non-normal control mode objective testing to a full stall has been required in the existing part 60 stall characteristics objective tests as well as in previous FSTD evaluation standards dating back several years and the FAA has not significantly changed this requirement in this rulemaking. The FAA agrees with Embraer that aerodynamic stall flight testing may be hazardous or impractical to conduct in some circumstances (on both envelope protected and non-envelope protected aircraft) and this rulemaking has not specifically required additional flight test validation data to be collected at an AOA beyond where it is reasonably safe to do so.
As described in the NPRM, the FAA has included allowances for aerodynamic stall models to be developed and validated using engineering and analytical methods. While the FAA agrees with the commenter that some airplane certification flight test data collected in a stall maneuver may not be suitable for simulator modeling and validation purposes (such as where a tail parachute has been deployed as mentioned by the commenter), other flight testing conducted to investigate the stall characteristics of the airplane during the aircraft certification program may be used to develop engineering simulator models. Where significant safety issues would prevent flight testing at an AOA beyond the activation of a stall protection system, engineering simulator validation data will be acceptable for FSTD objective testing purposes. The FAA has made amendments in the final rule to make this clarification.
In the NPRM, the FAA did not specify a particular AOA range to support the normal mode testing requirements for stall characteristics on computer controlled aircraft.
Delta and Airlines for America (A4A) requested clarification on what will be the required AOA range for objective testing on aircraft with highly automated systems where the aircraft does not reach aerodynamic stall in “normal control state.”
The FAA has not specified a particular AOA range to support the normal mode testing requirements in this final rule, as this will be a subset of the AOA range required for non-normal mode testing. Public Law 111-216 and part 121, subparts N and O, require training for recoveries from stalls and stick pusher activations, if equipped. In order to conduct stall recovery training, the protections of an envelope-protected aircraft must be disabled. As such, aerodynamics outside of the envelope protections up to ten degrees beyond the stall AOA must be considered to allow for stall recovery training in the event the envelope protections fail.
In the NPRM, the FAA proposed that where limited data is available to model and validate the stall characteristics of the aircraft, the data provider is expected to develop a stall model through analytical methods and the utilization of the “best available data”.
Bihrle Applied Research (Bihrle), A4A, and an anonymous commenter stated that the term, “best available data” (with regards to the aerodynamic data used to model and validate the stall model) is ambiguous and open to interpretation. American Airlines (American), FlightSafety International (FlightSafety), A4A, JetBlue Airways (JetBlue), and Delta further requested clarification from the FAA on whether a “non-OEM” provided source of data would be acceptable to the FAA to meet the representative stall model requirements.
The FAA notes that there is not a specific requirement currently in part 60, nor has a new requirement been introduced in this final rule that mandates FSTD sponsors use the original equipment [aircraft] manufacturer's (OEM) data to develop and validate the aerodynamic and flight control models in qualified FSTDs. As described in § 60.13(b), “The validation data package may contain flight test data from a source in addition to or independent of the aircraft manufacturer's data in support of an FSTD qualification . . .” There are
The FAA has considered the issues involved with requiring aircraft OEM data to develop and validate stall models for the purpose of conducting full stall training. While flight test data collected by the aircraft manufacturer will generally be the preferred source of data to model and validate FSTDs for training, the FAA has determined that “non-OEM” sources of aerodynamic data must be considered for the following reasons:
i. Restricting the development of stall models to that of the airplane manufacturers could impose a high cost on the FSTD sponsors and may not be possible in some instances where the airplane manufacturer does not support a simulator data package or is no longer in existence;
ii. Recommendations by the SPAW ARC, ICATEE, and other working groups have supported the use of analytically developed “type representative” stall models for training purposes; and
iii. An FAA simulator study
For these reasons, the FAA finds that it would not be practical to require FSTD sponsors to use an aircraft manufacturer's high AOA/stall model to meet the requirements of this final rule and other source data may be acceptable. Furthermore, Boeing, A4A, and an anonymous commenter stated that “flight test data should be noted as the preferred source of data, if available, with other data sources to be used if acceptable to the FAA.” The FAA concurs with this statement. To manage unknown risks, an aircraft manufacturer provided stall model developed with flight test data will generally be the preferred source of data; however, the FAA has concluded that there is not sufficient evidence to warrant mandating a particular source of data for model development. The FAA acknowledges that the term, “best available data” is ambiguous and has removed that language in the final rule.
In the NPRM, FAA indicated that flight crews should be provided with practical experience in recognizing a full stall should the stall warning system become ineffective. To support this objective, the FSTD must provide critical aircraft type-specific stall recognition cues to enable the crew to recognize the onset of a stalled flight condition. Where data limitations and aircraft behavior may prevent conducting precise objective validation of post-stall behavior in the FSTD, the FAA included provisions in the proposal for “type representative” modeling and validation. To distinguish between the objectively validated “type specific” pre-stall modeling and post-stall modeling that may be developed through engineering analysis and SME pilot evaluation, the FAA used the term “type representative” in the NPRM.
Delta, FlightSafety, and A4A requested that the FAA better define the term, “type representative” with regards to post stall model fidelity.
In defining the FSTD fidelity requirements for full stall behavior, the FAA considered the primary training objectives for such training. The first objective of stall training is to provide flight crews with practical experience in recognizing a full stall should the stall warning system become ineffective (either through malfunction or human error). To support this objective, the FSTD must provide critical aircraft “type specific” recognition cues of an impending stall. Examples include cues such as reduced lateral/directional stability, deterrent stall buffet, and reduced pitch control if the particular aircraft has these cues.
The second objective of stall training is to reinforce to flight crews that the recovery procedures learned during stall prevention training are the same procedures needed to recover from a full stall. From an aerodynamic modeling standpoint, this presents a more significant challenge for two reasons. First, aircraft behavior in an aerodynamic stall may not be stable and is often sensitive to initial conditions, which creates the impression of non-repeatable chaotic behavior. Second, because this occurs in a flight regime with reduced stability, there can be practical limitations on the amount of flight test data that can be safely collected for simulator modeling and validation purposes. It is for these reasons that objectively validated “type specific” behavior at an AOA beyond the aerodynamic stall may not be a reasonable goal for defining fidelity in a training simulator.
The FAA has determined that the primary training objective for stall training is to have a pilot learn the proper stall recovery procedure in response to the variety of stall cues that a particular aircraft presents. Owing to the reduced stability, unsteady aerodynamics, and surface and rigging variations that occur with use, an aircraft will respond differently from stall to stall. However, the physics of what can happen in a stall are known, accepting that they can differ from aircraft to aircraft. The FAA has concluded that if a pilot can demonstrate applying the stall recovery technique for the general characteristics of what might occur for an aircraft type, the precise characteristics are not required. That is, if an airplane typically rolls 10 degrees left or 20 degrees right in a stall does not matter as long as the pilot does not incorrectly apply the stall recovery technique by responding to that roll before reducing AOA. What is important is to present roll if an aircraft has rolling tendencies to ensure that a pilot responds properly.
In order to avoid confusion with other uses of the word “representative” with respect to simulator fidelity, and to remain consistent with the ICAO 9625 definitions, the FAA has changed the description of the post-stall fidelity requirements to “sufficiently exemplar of the airplane being simulated to allow successful completion of the stall entry and recovery training tasks.” For the purposes of stall maneuver evaluation, the term “exemplar” is defined as a level of fidelity that is type-specific of the simulated airplane to the extent that the training objectives can be satisfactorily accomplished.
In consideration of the recommendations of the SPAW ARC as well as the results of the FAA stall study, the FAA proposed that the necessary levels of simulator fidelity (including type specific pre-stall behavior and type representative post-stall behavior) can be achieved through a combination of engineering analysis, SME pilot assessment, and improved pre-stall objective testing through the use of existing stall flight test data that is already required by part 60 and
Dassault Aviation (Dassault) commented on the availability of full stall flight tests and that flight test points may not be available for some conditions where aircraft certification does not require them. Dassault further commented that corresponding flight test points might be implemented in the devices where partial data is available; however, no extension or extrapolation should be considered as type representative because this might lead to a very different behavior. An anonymous commenter made similar comments in that “unless there is a source of flight test data in every possible combination of conditions that might exist in a full stall, a demonstration of recovery techniques in a given set of conditions is the only plausible solution.”
FlightSafety further questioned whether there would be a release from liability should a stall model developed through engineering judgment and analytical methods prove to be inadequate.
As stated in previous sections, the FSTD qualification standards have had objective testing requirements for flight maneuvers up to and including full stall since 1980, so nearly all currently qualified full flight simulators (FFS) already have full stall flight test points that are used for simulator validation purposes. For previously qualified FSTDs, this data could be used to further improve existing stall models to meet the requirements of this final rule. The FAA does recognize, as Dassault points out, that additional flight test validation data may not readily exist to validate the new stall maneuvers introduced in the objective testing requirements (
In response to FlightSafety's comment, the FAA notes that engineering judgment and analytical methods are used extensively in other areas of a simulation model besides stall and these models are used for training in conditions and situations that vary from the flight conditions used to validate the model. This practice has proven satisfactory, as known physical principles are used by FSTD manufacturers and data providers to represent the training conditions that vary from the flight-validated conditions. The FAA issues standards for FSTD evaluation, but generally does not prescribe specific methods for developing simulation models. The FAA does not have the authority to declare a release from liability.
In the NPRM, the FAA proposed modifications to the Level A and Level B stall qualification requirements to include stick pusher system force objective testing and updated objective and subjective testing requirements for the approach to stall flight conditions for newly qualified FSTDs.
Boeing, Delta, and A4A commented that while the FAA proposed modifications to the Level A and Level B stall qualification requirements, the Crewmember and Aircraft Dispatcher Training final rule does not permit such training in these devices and therefore these requirements should be removed. Delta and Boeing had additional comments concerning new requirements proposed for the “approach to stall” objective tests on Level A and Level B simulators (including additional configurations, tolerances, and subjective testing of the autoflight/stall protection systems) with one commenter stating that there is no apparent explanation why the approach to stall characteristics objective test has changed for Level A and Level B simulators and it should remain unchanged to be consistent with the ICAO 9625 document.
The FAA concurs with the commenters in that § 121.423 requires extended envelope training be conducted in a Level C or Level D simulator and has removed the associated minimum requirements for full stall on Level A and Level B simulators. However, the FAA notes that such devices are qualified to conduct stall prevention training at AOAs below that of the activation of the stall warning system and improving the validation of these FSTDs in the approach to stall flight condition would be beneficial to this training. Where new testing requirements were proposed for Level C and Level D simulators for AOAs below the activation of the stall warning system, these testing requirements were carried over to Level A and Level B simulators to provide better validation of the simulator to conduct stall prevention training tasks. The FAA further notes that these requirements for Level A and Level B simulators are not retroactive requirements defined in the FSTD Directive and will only be required for Level A and Level B simulators that are initially qualified after this final rule becomes effective. The FAA does not believe these changes for Level A and Level B FSTDs will have an impact on the alignment with the ICAO document since the Level A and Level B FSTD levels in part 60 have no equivalent ICAO device level.
In the NPRM, the FAA included provisions to allow the FSTD manufacturer to limit the maximum buffet based on “motion platform capabilities and limitations” (see Table A2A, Entry No. 2.c.8). A similar provision was also included in the ICAO 9625, Edition 4.
The FAA received several comments that the FSTD sponsors, in addition to the device manufacturers, should be allowed to limit maximum buffet based upon motion platform capabilities and limitations. Furthermore, Delta, Boeing, FlightSafety, A4A, JetBlue, and United Parcel Service (UPS) commented that FSTD sponsors should have the ability to tune down or otherwise reduce motion vibrations due to maintenance and reliability aspects, personnel safety, and limitations of other simulator components, such as visual display systems and other hardware onboard the simulator. Boeing additionally commented that other simulator systems, such as the visual system, may also limit the buffet levels.
With regards to reducing or otherwise limiting motion vibrations that are within the motion platform's capabilities and limitations, the FAA has determined not to include specific
Furthermore, as cited in A4A's and American's comments, Schroeder did acknowledge in his paper that buffet levels are sometimes reduced in a simulator to extend component life; however, no such reduction in stall buffet was implemented for this experiment. In fact, overall buffet gains were increased by a factor of 2.5 in the simulator with no adverse effects noted after the completion of the five week experiment.
The FAA acknowledges that the potential exists for increased maintenance and reliability issues due to the repeated exposure of the FSTD to stall buffet. The FAA concurs with Boeing's comment in that other simulator systems (
Furthermore, given that these standards may be applied to previously qualified FSTDs where the original FSTD manufacturer may not be accomplishing and evaluating the modifications of the FSTD, the FAA agrees with the commenters that the ability to limit the maximum buffet due to motion platform and other simulator system capabilities and limitations should be extended to the FSTD sponsor. The FAA has amended the final rule to allow for the FSTD manufacturer or the FSTD sponsor to limit the maximum motion buffet levels as described in this section.
In the NPRM the FAA proposed that the SME pilot who conducts the subject evaluation of the FSTD's stall characteristics must have “. . . acceptable supporting documentation and/or direct experience of the stall characteristics of the aircraft being simulated” and have “knowledge of the training requirements to conduct the stall training tasks.” The additional requirements proposed in Attachment 7 of the NPRM further stated that that the SME pilot must have experience in conducting stalls in the type of aircraft being simulated and, where not available, experience in an aircraft with similar stall characteristics.
The FAA received several comments concerning the experience and qualification requirements for SME pilots. American, A4A, Delta, and FlightSafety requested clarification on whether the required SME must be a pilot who has flown a full stall in the airplane or a pilot who only has knowledge of training requirements to conduct the stall tasks. Delta and A4A also questioned whether there are any other SME experience requirements beyond conducting stalls in the aircraft being simulated, or in an aircraft with similar stall characteristics. A4A, Delta, and FlightSafety, further requested clarification on whether an SME pilot can gain the necessary stall experience in an audited engineering simulator or on another Level D FFS that has already been qualified for stall maneuvers.
The FAA maintains that the subjective evaluation of the aerodynamic stall model is a critical component in ensuring that the FSTD's stall characteristics are representative of the aircraft and support the training objectives. The FAA further maintains that for such a subjective assessment to have credibility, the pilot must have direct experience in conducting stall maneuvers in the aircraft being simulated or in a similar aircraft that is expected to share the same general stall characteristics.
The FAA acknowledges that the SME requirements in the NPRM were not clearly defined and has revised Attachment 7 of Appendix A of the final rule to better define these requirements. In particular, rather than just stating the stall experience must be in the “type of aircraft being simulated”, the FAA clarified this by stating that the experience must be “. . . direct experience in conducting stall maneuvers in an airplane that shares a common type rating with the simulated aircraft.” In instances where the stall experience is in a different make, model, and series of aircraft within a common type rating, the FAA clarified that differences in aircraft specific stall recognition cues and handling characteristics must be addressed using available documentation such as aircraft operating manuals, aircraft manufacturer flight test reports, or other documentation that describes the stall characteristics of the aircraft.
Particularly for aircraft that are no longer in production, the FAA recognizes that there may be practical limits in finding SME pilots with the required experience to conduct the stall model evaluations. In instances where an acceptable SME cannot be reasonably located, the FAA has included deviation authority in the final rule for a sponsor to propose alternate methods in conducting the SME pilot evaluation of an FSTD's stall model.
In response to the comments concerning whether the SME pilot is required to have experience in the stall characteristics of the aircraft or knowledge of the training requirements to conduct the stall training tasks, the FAA has determined that the SME pilot must have both aircraft experience and knowledge of the training requirements, with the exceptions on experience as noted previously. While an important element of the subjective assessment is the comparison of the FSTD's performance against that of the aircraft, knowledge of the training tasks to be conducted in the FSTD should be
The FAA has considered whether an SME pilot can gain experience in an audited engineering simulator or another Level D FFS that has been qualified for full stall maneuvers and has concerns that the effectiveness of an SME pilot evaluation may be diminished when making such comparisons from simulator to simulator without an objective measure to ensure that the aerodynamic model from the engineering simulator has been properly implemented on the training simulator. For these reasons, the FAA maintains that the SME pilot conducting the subjective evaluation of the FSTD or associated stall model must have direct experience of the stall in the aircraft. A pilot cannot gain the necessary aircraft experience required to be a SME in an engineering simulator or another FFS that has been qualified for full stalls.
Boeing and Airbus commented that in lieu of an SME pilot evaluation being conducted on the individual FSTDs for initial and recurrent evaluations, the model validation with the SME pilot can be conducted by the data provider where objective stall data is provided to validate the individual FSTDs. Delta and A4A made similar comments. The FAA agrees with the commenters and notes that provisions to conduct the SME pilot evaluation on an engineering simulator were included in the proposal in Attachment 7 to Appendix A. The FAA maintains that where objective proof of match tests are provided to verify the models have been properly implemented on the training FSTD (including stall characteristics and stall buffet objective testing), the FAA will accept an SOC from the data provider that confirms the integrated stall model has been evaluated by an SME pilot on an engineering simulator or other simulator acceptable to the FAA. Furthermore, there is no intent to require that this SME evaluation be conducted annually, and the SOC that confirms this SME assessment has taken place will remain valid as long as the stall model remains unmodified.
In the NPRM, the FAA proposed that an SOC be provided to the FAA that confirms that the FSTD has been evaluated by an SME pilot. This requirement was proposed to apply to both newly qualified FSTDs as well as previously qualified FSTDs that are evaluated under the requirements of FSTD Directive No. 2.
Delta and A4A requested clarification on this process that the NSPM follows to evaluate and accept an SME pilot.
As described in FSTD Directive No. 2 and Attachment 7 to Appendix A, the process for the qualification of stall maneuvers requires that the sponsor submit an SOC to the NSPM confirming that the FSTD has been evaluated by a SME pilot with the required experience. The NSPM will review this SOC to verify that the evaluating SME pilot has the required experience as specified in the rule before issuing additional qualification for full stall training tasks. Additionally, requests for deviation from the SME experience requirements as described in Attachment 7 should be submitted to the NSPM when requesting additional qualification for full stall training tasks. Where specific questions arise, the NSPM will contact the sponsor or data provider directly for clarification.
The FAA's proposal for the stall and stick pusher requirements were primarily based upon the recommendations from the SPAW ARC, as well as other working groups such as ICATEE and the LOCART working group. After the FAA first initiated this rulemaking, the ICATEE recommendations that were considered by the FAA in developing the proposal were also considered by ICAO for updating the ICAO 9625 document to include FSTD evaluation standards for stall and upset prevention and recovery training.
The FAA received numerous comments that some of the general requirements and objective testing requirements in the proposal did not align with the ICAO 9625, Edition 4 requirements, which became available following the publication of the NPRM. A4A, Boeing, and an anonymous commenter indicated that the stick pusher requirements (Table A1A, Entry No. 2.1.7.S) in the NPRM should be relocated to the flight controls section where they are more applicable. Boeing and A4A also commented that the stall buffet onset measurements in the stall characteristics objective tests (Table A2A, Entry No. 2.c.8) are based upon speed rather than AOA like ICAO 9625, Edition 4. Delta, A4A, and an anonymous commenter indicated that the control force tolerances in the stall characteristics test should be applicable only to aircraft with reversible flight control systems. Finally, A4A and Boeing commented that the required test conditions for the stall buffet motion characteristics test (test 3.f.8 in Table A2A of the NPRM) do not include the same conditions as ICAO 9625, Edition 4.
The FAA was unable to fully participate in the ICAO deliberations due to ex parte concerns as the agency was engaged in this rulemaking proceeding. The FAA has had an opportunity to review the final release of the ICAO 9625, Edition 4, document and has found that only minor differences exist with regards to the stall qualification requirements as compared to the final rule. As such, in order to maintain alignment with the ICAO document as identified by the commenters, the FAA has incorporated the ICAO language into the final rule to the maximum extent possible. The FAA has amended the final rule by adopting much of the ICAO language for high AOA/stall modeling minimum requirements (Table A1A, Entry No. 2.m. in the final rule) as well as the stall characteristics objective test tolerances and flight conditions (Table A2A, Entry No. 2.c.8.a in the final rule).
The FAA did not, however, amend the required conditions for the stall buffet tests to align with the ICAO 9625 standard. As recommended by the SPAW ARC report, stall buffet evaluation should include a broader range of flight conditions than what is currently evaluated. The FAA has determined that the inclusion of the second segment climb condition is important to evaluate the differences in stall buffet vibrations at high power settings, particularly for turboprop airplanes. As a result, the FAA has maintained this is as a required condition for the stall buffet characteristic vibrations test (Table A2A, Entry No. 3.f.5).
While the FAA has aligned a majority of the general requirements and the objective testing requirements with the ICAO document, specific differences must be maintained in the final rule to address comments received on the proposal as well as retroactive FSTD
In the proposal, the retroactive requirements for previously qualified FSTDs, as described in FSTD Directive No. 2., did not include objective testing for stall buffets.
Boeing, Delta, A4A, and an anonymous commenter stated that the general requirement and objective testing requirements (Table A1A and Table A2A, respectively) for stall buffet vibration measurement state that these tests are required for all FSTDs qualified for stall training tasks. This is in conflict with the proposed FSTD Directive No. 2, which specifically states that stall buffet objective vibration testing is not required for previously qualified FSTDs.
In recognizing the potentially high cost of gathering additional flight test validation data for stall buffets, the FAA did not include this requirement in the proposed FSTD Directive No. 2 retroactive requirements for previously qualified FSTDs. Since changes to the QPS tables are not typically applicable to previously qualified FSTDs, changes to Table A1A or Table A2A are not necessary since all of the retroactive requirements are defined in FSTD Directive No. 2. The FAA has added language in FSTD Directive No. 2 in the final rule to clarify the retroactive testing requirements.
In FSTD Directive No. 2, previously qualified FSTDs that will be used to conduct full stall, UPRT, and other specific training tasks will be required to meet certain sections of the general requirements, objective testing requirements, and subjective testing requirements of the updated QPS tables in order to obtain qualification for these training tasks.
A4A requested clarification on whether FSTDs that are “upgraded” to provide extended envelope training would also have to comply with the proposed ICAO alignment requirements as well (such as the new visual display system requirements). American and A4A further noted that some sections within the QPS tables appear to have been mistakenly applied to all simulators instead of those qualified after the effective date of the final rule.
The FAA notes that the only new QPS requirements applicable for previously qualified FSTDs are those that are described in FSTD Directive No. 2. As described in § 60.17 and paragraph 13 of Appendix A, previously qualified FSTDs will continue to hold grandfather rights and the changes to the QPS tables will not generally be applicable to previously qualified devices unless specifically stated in an FSTD Directive. The FAA has reviewed FSTD Directive No. 2 and made amendments in the final rule to clarify which sections of the QPS appendices will be applicable to previously qualified devices.
The FAA further notes that an “upgrade,” as defined by part 60, is an “improvement or enhancement of an FSTD for the purpose of achieving a higher qualification level.” FSTDs that are upgraded in qualification level will generally have to comply with the standard that is in effect at the time of the upgrade. It is important to note, however, that compliance with FSTD Directive No. 2 does not require a change in qualification level and is not considered an “upgrade” under part 60. As a result, the other changes made to the QPS appendices, including the general changes made to align with the ICAO document, will not be applicable to previously qualified FSTDs unless upgrading in FSTD qualification level.
In the NPRM, the FAA proposed that the minimum requirements for the evaluation of full stall maneuvers and UPRT maneuvers would be applicable for all fixed wing Level C and Level D FSTDs that are initially qualified after the final rule becomes effective.
Dassault commented that while UPRT and full stall training will become mandatory for part 121 operators, it is not clear if this applies to part 135 and part 91 operators as well. Dassault further questioned whether the objective testing requirements for full stall maneuvers would be required for an FSTD that will not be used for full stall training. Finally, Dassault commented that they would prefer the requirements to be applied to new or modified aircraft types instead of new FSTDs since this would allow collecting necessary data at the time of the type certification flight tests.
CAE made similar comments that point out that the FSTD Directive (for previously qualified devices) is only applicable for those FSTDs that will be used to conduct such (UPRT and stall) training, however, the requirements in the QPS appendices are mandatory for newly qualified FSTDs regardless of whether they are used in an air carrier or a non-air carrier training program. CAE recommended that operators of newly qualified FSTDs (that are initially qualified after the final rule becomes effective) who are not subject to the Crewmember and Aircraft Dispatcher Training final rule should also be given the same option on whether or not to invest in the additional features that support extended envelope and other tasks as required under the final rule. CAE further stated that this would provide an option to those operators who may have multiple devices to limit such updates to certain equipment that will be utilized to conduct such training.
FAA agrees with the commenters that the requirement for FSTD modifications and data collection should not be imposed on sponsors who will not use those FSTDs to conduct full stall training and have no mandate to conduct such training. Similar to the FSTD Directive for previously qualified FSTDs, the FAA has amended the final rule to make the qualification of full stall maneuvers optional for newly qualified FSTDs. This will allow flexibility for operators to decide how many FSTDs need to be evaluated for full stall maneuvers to support training requirements.
FAA has, however, maintained the minimum requirements for UPRT evaluation on newly qualified Level C and Level D FFSs. The FAA has estimated that the addition of such IOS feedback tools to support UPRT would add little to no incremental cost to that of a newly qualified FSTD and will enhance instructor awareness in support of the existing part 60 unusual attitude qualification requirement.
In order to ensure that only FFSs that are evaluated and qualified for stall training tasks are used for such training, compliance with the stall and UPRT evaluation requirements will be tracked by the FAA through modifications to the FSTD's Statement of Qualification (SOQ).
Boeing commented that stall training beyond the stick shaker activation does not require testing or checking in part 121 and references made to testing and checking in FSTD Directive No. 2 should be removed.
FAA agrees with Boeing's comment and has modified the language in FSTD Directive No. 2 accordingly.
A4A commented that the FSTD Directive (for previously qualified FSTDs) requires evaluation by the NSPM for additional qualification and should allow a draft SOQ to be issued until the next scheduled evaluation.
FAA notes that FSTD Directive No. 2 does not require an update to the FSTD's permanent SOQ before stall training can be conducted in an FAA approved training program. A positive response from the NSPM to the FSTD modification notification confirming that the requirements of the Directive have been met will, in most cases, serve as an interim update to the FSTD's SOQ until the next scheduled FSTD evaluation. In some instances, however, additional FSTD evaluations conducted by the FAA may be required before the modified FSTD is placed into service. FAA has added clarifying language to the FSTD Directive that this response will serve as interim FSTD qualification for stall training tasks until the next scheduled FSTD evaluation where additional FSTD evaluations conducted by the FAA have been determined to not be required.
Frasca International (Frasca) commented that AOA rate is a significant contributor to stall behavior and should be considered as part of the requirement for aerodynamic stall modeling. FAA agrees with Frasca's comment and has added AOA rate to the list of aerodynamic modeling considerations in Attachment 7.
In order to support UPRT that was introduced in the Crewmember and Aircraft Dispatcher Training final rule, the FAA proposed new FSTD evaluation requirements for these training tasks. The proposed requirements were based upon recommendations from the LOCART and ICATEE working groups as well as from the guidance in the Airplane Upset Recovery Training Aid (AURTA), and included new standards to better define the FSTD's aerodynamic validation envelope. The proposal also included requirements to improve the feedback at the instructor operating station (IOS) concerning the FSTD validation envelope limits, aircraft operational limits, and flight control inputs by the trainee.
In the NPRM, the FAA proposed minimum qualification requirements for full stall and UPRT in the newly defined Level 7 flight training device (FTD) (Table B1A of Appendix B).
TRU Simulation and A4A commented that the proposal requires extended envelope modeling for the Level 7 FTD, but the part 121 training requirements have a minimum requirement that this training must be conducted in a Level C or higher simulator. In addition, A4A commented that this is inconsistent with ICAO 9625, Edition 4, where UPRT training is only qualified on a Type VII device. Finally, Air Line Pilots Association, International (ALPA) commented that training could be negatively impacted if allowed to be conducted on a Level A or Level B FFS as the proposal states and this is inconsistent with the recommendations of the SPAW ARC.
FAA agrees with A4A and TRU Simulation regarding UPRT qualification on a Level 7 FTD. This was an error in the proposal and the FAA has amended the final rule to remove minimum qualification requirements for both full stall and UPRT on the Level 7 FTD.
The FAA has reconsidered the qualification of Level A and Level B FFSs for UPRT tasks that involve no bank angle excursions, such as nose-high or nose-low upsets, as defined in the NPRM, and amended the final rule by removing references to full stall and UPRT evaluation requirements for Level A and Level B FFSs in the FSTD Directive.
The FAA notes that the primary differences between the Level A and Level B minimum qualification requirements compared to the Level C and Level D qualification requirements are generally limited to ground reaction modeling, visual system field of view requirements, and minimum motion cueing requirements. The ground reaction modeling requirements have no impact on UPRT or stall training given that training is typically conducted well outside of ground effect. There are significant differences in the motion cueing abilities between Level A and Level B FFSs versus Level C and Level D FFSs that impact the ability for effective full stall and upset training to be conducted in the lower level devices. Level A and Level B FFSs have a 3 degree-of-freedom (DOF) motion cueing system compared to the 6-DOF motion cueing requirement for Level C and Level D FFSs. Typically, a 3-DOF motion cueing system includes motion cues in the pitch, roll, and heave axes.
FAA adds that while the qualification of extended envelope training tasks will generally be applicable only to Level C and Level D simulators, operators of other FFSs have the option to apply for FAA consideration of a deviation from the use of a Level C or Level D simulator for extended envelope training tasks as described in § 121.423(e). Since the approval of such a deviation will be linked to the training program and the alternate means that are proposed to achieve the required learning objectives, approvals to deviate from the Level C or higher requirements in § 121.423 will have to be reviewed on a case-by-case basis under the deviation authority.
In its proposal, the FAA included minimum requirements for a means to record and playback audio and video as well as a means to record and playback certain parameters for the qualification of UPRT maneuvers.
American, Boeing, Delta, A4A, FedEx, JetBlue, and an anonymous commenter stated that the requirement for record and playback functionality is outside the scope of the part 60 rule and does not provide additional benefits to the training scenario. While the commenters generally agreed with having parameters available to the instructor during the scenario, such as the aerodynamic validation envelope and the aircraft operational limits, the recording and playback of parameters, particularly the recording and playback of audio and video, should be left to the discretion of the operator. Both ALPA and A4A further commented that there are union and collective bargaining agreements to
The FAA has reconsidered the instructor feedback requirements and agrees with the commenters that effective UPRT can be conducted without audio and video playback capabilities or with the use of an instructor off-board debriefing system located outside of the simulator for the purposes of replaying the training scenario after its conclusion. While the use of off-board debriefing tools and audio/video playback may enhance such training, the FAA recognizes that operators can still conduct effective training without them and has amended the final rule to remove the audio and video record and playback requirements.
In the NPRM, the FAA proposed minimum requirements for a feedback mechanism, located on the IOS and available to the instructor, that provides a minimum set of parameters to display to determine expected FSTD fidelity, aircraft structural/performance limitations, and student flight control inputs. The FAA provided example IOS feedback displays in the information section of Attachment 7 to Appendix A. The proposal also included requirements for features or malfunctions to support the training of crew awareness, recognition, and recovery from an aircraft upset.
American and A4A commented that the UPRT requirements for upset “awareness” and “recognition” features and/or malfunctions are outside of the scope of the rule and emphasis should be placed on recovery from an upset. JetBlue made similar comments on this topic. Boeing further commented that how the training requirements are met should be at the discretion of the training program and is not pertinent to FSTD qualification. Since these features are not prescribed, they should appear in the information/notes column and not in the requirements column of Table A1A. Frasca additionally questioned what would be some examples of relevant data sources with respect to externally driven upset scenarios.
Regarding the IOS requirement to display “Cl-max”, A4A, Boeing, and an anonymous commenter stated that “Cl-max” is not an explicit output of most aerodynamic models and is not available for plotting on the IOS display. Similar comments concerning the use of “Cl-max” as an example of a limit were made by the NTSB. Boeing and FlightSafety also recommended changing the IOS feedback requirement from showing “aircraft structural/performance limitations” to showing “aircraft operating limits”. FlightSafety further commented that aircraft structural and performance limitations are not likely to be known or provided to simulator manufacturers or operators. Delta commented that as an alternative to the record and playback functionality, enhancing existing IOS functionality to include “FSTD crash” and freeze when g-load or control input parameters are exceeded would provide immediate information to the instructor. UPS made similar comments in that a flag could be added to the IOS for envelope excursion and a maximum load indication and that other feedback mechanisms are cost prohibitive and not needed.
The FAA agrees with the commenters in that mandating specific features and malfunctions to drive upset scenarios is generally outside the scope of part 60 and has removed these requirements in the final rule. The FAA further notes that specific guidance material on developing UPRT scenarios has been published as part of Advisory Circular (AC) 120-111, Upset Prevention and Recovery Training.
The FAA maintains that minimum feedback requirements have been found necessary to provide meaningful information to the instructor in training and evaluating pilots in UPRT maneuvers. The FAA recognizes that FSTD sponsors and operators may have other means to display this information and the example IOS displays provided in Attachment 7 are included in an information section as guidance material and are intended to be examples that could be used if desired. Digital or discrete IOS feedback mechanisms may prove to be acceptable for some or all parameters as Delta and UPS have suggested and, consequently, the FAA has not mandated a particular solution. The FAA has amended the final rule to allow FSTD sponsors the discretion to determine a feedback mechanism design that provides the required parameters needed for UPRT and supports their particular training programs and FSTD capabilities.
The FAA has further amended the final rule to remove the “structural/performance limitations” terminology and replaced it with “aircraft operational limitations” as suggested by the commenters. Additionally, the FAA has removed the feedback parameter, “Cl-max” as suggested by the commenters and replaced it with “stall speed” and “stall identification angle of attack” since these are more useful parameters for instructors to directly provide feedback to crew members when conducting UPRT and stall maneuvers.
In the NPRM, the FAA proposed requirements to define the limits of the FSTD's validation envelope and test the FSTD against a minimum set of standard upset recovery maneuvers as defined in the AURTA.
Boeing, A4A, and an anonymous commenter stated that the term “extended envelope” in the general requirements is redundant because “modeling to the extent necessary. . . .” defines the requirement adequately. Boeing further commented that this phrase is a misnomer and implies that the flight model may need to be extended. For some upset recovery training, the existing model may be sufficient to support the training needs. A4A made similar comments stating that its experience has shown that the current data appears to be sufficient for conducting upset recovery training.
Airbus further commented that the evaluation of the FSTD should take into consideration the training practices recommended by the aircraft OEM. An anonymous commenter additionally stated that it is imperative that the validation limits are defined by the aerodynamic data provider since they are the only credible source for these limits.
FAA agrees that the term, “extended envelope” may be redundant in this particular context and has amended the final rule accordingly. The FAA recognizes that many aerodynamic models on existing FSTDs may currently be capable of conducting UPRT maneuvers within their AOA versus sideslip validation envelope with no need to be extended further as the commenters suggest. However, the range of validation envelopes can vary significantly between FSTDs as a function of the extent of flight test data, wind tunnel data, and other data used to develop the model. Since those validation envelopes have not been transmitted by the data providers to the FSTD operators in most cases, the FAA has determined that the comments are unsupported and have concluded that operators need to obtain the validation envelopes and ensure that their training maneuvers remain within them.
The FAA agrees with Airbus in that the evaluation of the FSTD should consider the training that will be conducted in the device. However, this rulemaking only addresses FSTD qualification standards and the FSTD evaluation requirements were primarily developed to support training as required by the Crewmember and Aircraft Dispatcher Training final rule and public law. In developing the FSTD evaluation standards for UPRT, the SPAW ARC recommendations, as well as the AURTA recommendations, were reviewed to define a standard set of upset recovery maneuvers that were needed to minimally qualify an FSTD for such training. This set of maneuvers is considered to be the minimum required for FSTD qualification that will provide a baseline evaluation of the FSTD's capabilities to conduct UPRT, but in no way limits an FSTD sponsor's decisions concerning which upset recovery maneuvers they incorporate into their training programs.
The FAA further notes that the qualification requirements for UPRT in this final rule exceeds the current part 60 FSTD qualification requirement for “recoveries from unusual attitudes” which limits maneuvers to “within the normal flight envelope supported by applicable simulation validation data.”
The FAA generally agrees that the validation limits are best defined by the aerodynamic data provider and has provided clarification in Attachment 7 in Appendix A of the final rule; however, there may be instances where the original aerodynamic data provider cannot directly provide this information (the original data provider is either no longer in business or no longer supports the model) and the FSTD sponsor must determine the validation envelope using data supplied with the original aerodynamic data package. The FSTD sponsor will be required to define such aerodynamic data sources in the required SOC.
In the existing part 60 rule, the objective testing requirements found in Attachment 2 of Appendix A requires that testing be conducted in weights and centers of gravity (CG) conditions that are typical of normal operations. Furthermore, where such testing is conducted at one extreme weight or CG condition, a second test must be provided at “mid-conditions” or as close as possible to the other extreme condition.
Airbus and Boeing commented that the existing part 60 requirement for objective testing to be predominately conducted in mid-weight/mid-CG flight conditions is outdated and a wider coverage of the alpha/beta (
FAA agrees with the commenters and supports allowing flexibility in providing the best range of data to support not only extended envelope training, but all training conducted in an FSTD. Where weight and CG configuration is critical for validating a particular flight maneuver (such as in some of the takeoff objective tests), those conditions are described as a test requirement for that particular test. In general, the FAA recognizes that weight and CG effects on the aerodynamic model are well known and requiring redundant test conditions at varying weight and CG ranges has questionable benefit for FSTD validation in some required objective tests. The FAA has amended the final rule as recommended by the commenters to allow for greater flexibility in determining appropriate weight and CG conditions for some of the required objective tests that do not have specific requirements contained within Table A2A.
ALPA commented that while they support the requirements associated with the simulator providing feedback to the instructors and evaluators, they believe that only simulators that can perform all aspects of the new training required in the Crewmember and Aircraft Dispatcher Training final rule should be qualified. In addition, ALPA further stated that since the proposed rule only requires FSTD evaluation for those FSTDs used to conduct the additional training tasks, a robust oversight system will be needed to ensure that only the simulators qualified for this training are used in the required training.
In developing the proposed requirements in the NPRM, the FAA considered the economic costs and benefits of mandating FSTD modifications and evaluations to support training requirements. With the considerable cost in the implementation of new aerodynamic stall models on previously qualified FSTDs, the FAA could not justify imposing this cost on FSTD sponsors who currently do not have a mandate to conduct such training. Furthermore, the FAA determined that some FSTD sponsors that do have a training mandate for stall and UPRT may realize some cost savings by not having to qualify all of their FSTDs where the training can be accomplished on a lesser number of devices. Finally, with the large number of FSTDs that will require evaluation to meet the part 121 compliance date of March 2019, this may provide some practical relief in having to qualify all FSTDs within a relatively short amount of time.
The FAA appreciates ALPA's concern for proper FAA oversight to ensure that the FSTDs are evaluated and qualified before extended envelope training is conducted. The FAA notes that an oversight system to track FSTD qualifications is already in place with the list of qualified tasks that is currently required on the part 60 required SOQ for all FAA qualified FSTDs.
A4A commented that further testing is needed to ensure that the reliability and availability of FSTDs due to maintenance issues is unchanged with the addition of UPRT training.
The potential for stall vibrations to cause FSTD maintenance issues has been acknowledged and discussed in a previous section on stall buffet. The FAA acknowledges that conducting UPRT maneuvers in an FSTD can produce significant motion system excursions, however, the FAA is not aware of any evidence that the addition of general UPRT maneuvers will introduce significant maintenance issues that would affect the overall reliability and availability of an FSTD beyond what is normally seen in existing training. As with motion system tuning in general, the FAA expects that FSTD sponsors will employ limits and protections within their motion system hardware and software that will protect the FSTD from dangerous excursions that could damage the FSTD's equipment or injure its occupants. The exposure to stall buffet likely has the greatest potential for affecting an FSTD's reliability and the FAA has addressed this issue in the stall requirements sections.
In the NPRM, the FAA proposed changes to the general requirements for engine and airframe icing qualification as well as adding a new objective demonstration test for ice accretion effects for newly qualified FSTDs. The changes were based upon new icing requirements in the ICAO 9625 document, as well as recommendations made by the SPAW ARC, and were intended to improve upon the existing engine and airframe icing requirements in part 60. The proposed changes focused on requirements for improved ice accretion models that represent the aerodynamic effects of icing rather than estimating icing effects through gross weight increments.
In the proposal, the FAA introduced new objective testing requirements for the demonstration of icing effects on Level C and Level D FFSs. The objective tests are intended to demonstrate that the aerodynamic effects of ice accretion are present in the simulation with the icing model active as compared to the simulation where no ice is present. Due to the potential cost impact for previously qualified FSTDs, these tests were not retroactively required in FSTD Directive No. 2.
Boeing commented that the objective demonstration test for engine and airframe icing is not required in FSTD Directive No. 2 (for previously qualified FSTDs) and recommended that text should be added to Table A2A (Entry No. 2.i.) to clarify that this test is not required for previously qualified FSTDs.
FAA agrees with Boeing in that this demonstration test for engine and airframe icing is not required for previously qualified FSTDs and has added clarifying language in FSTD Directive No. 2. As with comments in previous sections concerning stall buffet testing, previously qualified FSTDs will maintain grandfather rights and the modifications to Table A2A will generally not be applicable to previously qualified FSTDs unless specified in an FSTD Directive. As a result, FAA has not added additional text in Table A2A concerning previously qualified FSTDs because it will be adequately addressed in the FSTD Directive.
In the proposed icing effects objective demonstration test, the FAA included specific icing effects that may be present and evaluated as applicable to the particular airplane type. This list included both aerodynamic effects of ice accretion as well as engine effects that may also be present with the icing model activated in the simulation.
Boeing commented that the objective demonstration test for icing includes engine effects, but the general requirement for icing does not specifically identify engine effects and this should be removed from the objective testing requirement. An anonymous commenter stated that it may be necessary to show engine effects and airframe effects of icing separately because the test will not differentiate between thrust losses and drag increases. Another anonymous commenter pointed out that changes in control effectiveness and control forces are limited mainly to reversible systems on certain airframe configurations and the FSTD should only introduce these changes when they are representative of the specific make and model of aircraft. Additionally, an anonymous commenter stated that there is “very little guidance on what engine icing effects should be represented and most manufacturers state there are little effects on engine indications for current turbofans. Based upon the data we do have for engine inlet icing, the effects are often very subtle, yet the requirements seem to ask for something more dramatic. If we modify our icing models to favor dramatic effects, do we risk training pilots to miss looking for the subtle indications?”
Concerning Boeing's comment, the general requirement for engine and airframe icing (Table A1A, Entry No. 2.j.) does include modeling the effects of icing on the engine, where appropriate, as does the current requirement in part 60. While the information section in the demonstration test does state “aerodynamic parameters,” the intent of the test is to demonstrate the effects of the icing model integrated into the simulation. If the sponsor designated icing model used for the demonstration test has an effect on relevant engine parameters (such as thrust reduction or other effects), these effects should also be shown as part of the test. FAA has amended the test details in the table to clarify this. Other icing models that may be optionally developed by the FSTD sponsor to train recognition of engine effects due to icing will not require separate objective demonstration testing.
The FAA agrees that icing effects should only be introduced where representative of the specific make and model of aircraft and has clarified this in Table A2A (test 2.i.) and Attachment 7 of the final rule. The FAA does not intend for a simulator operator to artificially insert dramatic icing effects that are not representative of the aircraft. While the FAA is aware that the cues of ice accretion can vary significantly depending upon the nature of the icing event and the aircraft's characteristics, the icing models developed for simulation and training purposes should support the general recognition of icing cues that are typical for the aircraft being simulated.
In the NPRM, the FAA proposed general requirements and objective demonstration testing for engine and airframe icing as part of the new Level 7 FTD requirements in Appendix B.
TRU Simulation commented that in the proposal for ICAO 9625, Edition 4, only a Type VII is allowed for use in UPRT and this item (icing) is identified as only being required on devices where UPRT will be trained. TRU Simulation requested that the FAA confirm applicability on a Level 7 FTD and
FAA reviewed ICAO 9625 Edition 4 and found that the general requirement for the modeling of icing (Appendix A, Entry No. 2.1.S.e.) is a minimum requirement for an ICAO 9625 Type V device and has therefore maintained this requirement for the FAA Level 7 FTD. FAA confirms that the objective demonstration testing for icing is not required for an ICAO 9625 Type V device and therefore has removed this requirement for the FAA Level 7 FTD in Table B2A to maintain consistency with the ICAO document.
Regarding the addition of anti-icing effects to a Level 6 FTD, FAA has removed the ICAO numbering system in the general requirements table that was published with the NPRM and restored the existing part 60 requirements for Level 6 FTDs. The FAA notes, however, that the existing part 60 functions and subjective testing requirements for Level 6 FTDs includes “operations during icing conditions” and “effects of airframe/engine icing” in Table B3A of Appendix B. The FAA has not changed these requirements in the final rule.
In the existing part 60, the subjective evaluation requirements in Appendix A includes a table of special effects (Table A3F) that contains additional requirements for the qualification of engine and airframe icing. In the NPRM, the FAA maintained this table with no changes to it.
Boeing, A4A, and NTSB commented that the requirements for icing evaluation in Table A3F (special effects) include the evaluation of increased gross weight due to ice accumulation. The commenters noted that the pilot has no means to recognize if the simulated aircraft's weight has increased and an increased gross weight due to ice accumulation is typically an insignificant effect of icing. Boeing further commented that this test requires a “nominal altitude and cruise airspeed and is likely to result in a flight condition where icing does not occur for large commercial transport category airplanes. This flight condition will also likely result in trimming at a low AOA where the effects of ice, even with the anti-ice system deactivated, are small (a few tenths change in pitch attitude or a few percent change in thrust to maintain level flight). In the lower AOA range, the aerodynamic effects of ice are relatively small. For large commercial transports one might expect to see a few tenths of a degree change in pitch attitude or a few percent change in thrust to maintain level flight with the addition of ice. This proposed new test will likely result in generating unnecessary questions when the expected (larger) results are not seen.”
FAA agrees with the commenters and has removed references to increased gross weight in the final rule as that table entry for icing special effects (Table A3F, Entry No. 2) was inadvertently retained in the proposal. Furthermore, the FAA has amended this table to remove the “nominal altitude and cruise airspeed” requirement and made additional changes to better align this section with the general requirements for engine and airframe icing in Table A1A, Entry No. 2.j.
In the NPRM, the proposed updated requirements for engine and airframe icing were applied to all Level C and Level D FFSs, regardless of the type of aircraft or operator. This is consistent with the engine and airframe icing requirements in the existing part 60 and previous FSTD evaluation standards. The FAA notes that “engine and airframe icing” simulation is not a new FSTD qualification requirement that was introduced by this rulemaking. In fact, the “effects of airframe icing” has been a minimum FSTD qualification requirement for Level D (Phase III) FFSs since the publication of AC 121-14C, Aircraft Simulator and Visual System Evaluation and Approval, published in 1980. Similarly, the “effects of airframe and engine icing” is currently an FSTD qualification requirement in the existing part 60 rule (published in 2008) for Level C and Level D FFSs.
Delta commented that the de-icing and anti-icing systems are very effective on turbojet airplanes. The accidents referenced in NTSB reports are turboprops with significantly less performance available. Delta added there are no useful training objectives to be taught to pilots of commercial turbojet airplanes in icing conditions. A4A commented that stall ice effects are not required by Public Law 111-216 or the Crewmember and Aircraft Dispatcher Training final rule and should be deleted from this final rule. Delta, A4A, and FlightSafety further questioned whether the FAA has a specific list of airframes that are impacted by icing or are vulnerable to a specific type of ice accretion.
The FAA points out that Section 208(b)(1) of Public Law 111-216 addressed increasing the familiarity of flight crewmembers with, and improving the response of flight crewmembers to icing conditions. However, irrespective of statutory direction, the FAA believes the understanding of the effects of icing on aircraft performance is essential for professional crewmembers particularly as it relates to stall AOA.
The FAA agrees with Delta that de-icing and anti-icing systems are generally very effective on turbojet airplanes. However, every airplane is susceptible to icing to some extent and therefore, there are useful training objectives to be taught to pilots of turbojet aircraft. While the FAA recognizes that turboprop airplanes are generally more susceptible to ice accretion, accidents and incidents on turbojet aircraft have occurred in the past. In the case of the Circuit City Cessna 560 (a turbojet aircraft) accident in Pueblo, Colorado on February 16, 2005,
With respect to engines, while turboprop and propeller aircraft engines are generally more susceptible to the effects of ice accretion than turbojet engines, power loss events due to core icing have been known to occur on multiple models of aircraft and engines (including large turbojet aircraft). In research conducted in 2009, it was found that engine power loss events due to ice accretion were occurring at a rate of about one event every 4 months.
The FAA has not prescribed specific types of ice accretion models to be implemented in the final rule. The intent is to provide flight crews with representative recognition cues of ice accretion for the aircraft being simulated. Where the accident and incident record indicates that a particular airframe may be susceptible to a particular type of ice accretion, the simulation of the cues associated with that type of icing should be considered when developing a representative icing model. While the accident record has some general examples of this (such as supercooled large droplet icing or tailplane icing on some aircraft), the aircraft manufacturer will likely be the best source of information as to a particular type of icing scenario that may enhance training in recognizing and exiting icing conditions for that aircraft.
In the proposal, the FAA introduced updated engine and airframe icing requirements that included a requirement to use “aircraft OEM data or other acceptable analytical methods” to develop ice accretion models.
An anonymous commenter stated that the cost of purchasing icing data, if it exists, could be prohibitive. Due to the availability of SME's who have flown the subject aircraft in icing conditions, the requirement should allow SME pilot validation of icing models. Both A4A and CAE made similar comments that some SME pilot tuning and validation of icing models should be allowed in the requirements.
Dassault further commented that flight test data obtained through the aircraft certification process is limited with larger amounts of ice accretion. Engineering tests might be conducted in those conditions; however, Dassault claimed it would be unable to provide an SOC because there is no flight test data to support it.
The FAA maintains that icing models may be developed using analytical or other engineering methods, incorporating flight test data where available. This process may include supplemental SME pilot assessment to tune and subjectively validate the models. Furthermore, the objective demonstration test does not require the use of flight test data or other data to validate the model. The demonstration test is for the purpose of demonstrating that the expected icing recognition cues are present as compared to the simulation with no ice present. The FAA has added clarifying language in Table A1A and Attachment 7.
The FAA agrees with Dassault that flight test data gathered during the aircraft certification process will generally be limited to ice shape testing conducted to demonstrate performance limits. Like the current part 60 requirements for the simulation of airframe and engine icing, engineering and analytical methods may be used to develop representative icing models that support the intended training objectives. While the use of flight test data would certainly assist in developing such models, engineering analysis supported with subjective assessment and tuning of the icing models for the expected recognition cues will be acceptable in lieu of flight test developed models and should not be as costly.
In order to support the new gusting crosswind training requirements in the Crewmember and Aircraft Dispatcher Training final rule, the FAA proposed new minimum requirements for Levels A, B, C, and D FFSs to include the programming of realistic gusting crosswind profiles. The FAA notes that in the existing part 60 and previous FSTD evaluation standards, there is no requirement for any FSTD to simulate gusting crosswinds. These proposed requirements also included updated ground handling characteristics to be evaluated with crosswinds and gusting crosswinds up to the aircraft's maximum demonstrated crosswind component. The FAA further included guidance material in the information section of the proposal that recommended the use of the Windshear Training Aid or other acceptable source data in the development of the gusting crosswind profiles.
In the proposal, FSTD evaluation requirements for gusting crosswind profiles were made applicable for all FFS levels in Appendix A as well as the Level 7 FTD defined in Appendix B.
TRU Simulation and A4A commented that a new gusting crosswind requirement was added for the Level 7 FTD and questioned whether this was appropriate for a Level 7 FTD. Boeing additionally commented that the requirement for gusting crosswinds are proposed for Levels A, B, C, and D FFSs, but crosswind takeoff and landing tasks are not minimum requirements for Level A simulators in Table A1B. Finally, A4A and Delta commented that gusting crosswind requirements have been added for both Level A and B simulators, but should be removed due to lack of alignment with the ICAO 9625 FSTD device type categories.
With regards to the Level 7 FTD, FAA has examined the ICAO 9625 requirements for the Type V device and found that instructor control of “surface wind speed, direction, and gusts” is a minimum requirement for this device level (see ICAO 9625, Appendix A, section 11.4.R,G). In order to maintain consistency and alignment with the similar ICAO device, FAA has maintained this requirement in the general requirements and functions and subjective testing tables for the Level 7 FTD, but removed the more detailed requirement for realistic gusting crosswind profiles and the associated SOC that was proposed in the NPRM.
FAA agrees with Boeing's comment concerning the qualification of the Level A simulator for takeoff and landing tasks and has removed this requirement in the final rule. Additionally, due to the lack of required side force motion cueing in a Level B simulator that would enhance the simulation of a realistic and dynamic gusting crosswind scenario, the FAA has also removed this minimum requirement for Level B simulators in the final rule.
In the NPRM, the FAA proposed requirements for FSTD sponsors to develop a realistic gusting crosswind profile for use in training. The FAA was not prescriptive in this requirement and only required that the profile be “realistic” and “tuned in intensity and variation to require pilot intervention to avoid runway departure during takeoff or landing roll.” The FAA additionally provided guidance in the information column of the proposal recommending the use of the Windshear Training Aid or other acceptable data sources to develop the gusting crosswind profiles.
The FAA received several comments concerning the data sources needed to develop realistic gusting crosswind profiles to meet the rule requirements. American, JetBlue, and A4A commented that FAA should provide an appropriate gusting crosswind model as recommended by the NTSB in its safety recommendation. Boeing commented that the Windshear Training Aid does not provide the necessary data to effectively model gusting crosswinds. Delta and A4A further commented that
While the FAA would generally agree that a defined wind gust model could provide standardization for FSTD qualification purposes, such a generic model may not be realistic unless tuned for the particular aircraft and training scenario. Similar to the Windshear Training Aid's windshear profiles, subjective tuning would be required to adjust the model as a function of the aircraft type/configuration and ambient conditions to provide the cues and aircraft performance needed to accomplish the training objectives. In the proposal, the FAA required that such wind gust models be “realistic” and have been “tuned in intensity and variation to require pilot intervention to avoid runway departure.” Like many other areas in the simulator qualification standards, this allows for the FSTD sponsor to develop solutions that meet the needs of their particular training program without the FAA prescribing a specific solution. While realistic baseline wind gust models may be derived from aircraft operational data, meteorological data, or other data, a certain amount of subjective tuning will be required in many cases to ensure the gusts are adequate enough to require pilot intervention to avoid runway departure or otherwise do not exceed the crosswind capabilities of the simulated aircraft and supporting aerodynamic and ground model data. Due to the wide range of aircraft and associated crosswind capabilities, the FAA has found that specifying a certain gust characteristic for FSTD qualification would not be practical and has maintained the requirements as proposed.
In response to the NTSB safety recommendation
A second model was developed using a simplified linear estimation of the CO 1404 accident data using maximum wind rates of change as referenced in the Windshear Training Aid and the Joint Airport Weather Studies (JAWS)
FAA recognizes that sponsors may desire to implement their own wind models that may be more suitable for their particular training programs and has not mandated the above described wind gust models as a condition of FSTD qualification. These models will be provided with the final rule as guidance material in a National Simulator Program (NSP) Guidance Bulletin and may be used as one method to develop realistic gusting crosswind profiles to satisfy the requirements of the rule. As suggested by A4A, this will provide operators with flexibility to develop other wind gust models from multiple sources to meet the FSTD qualification requirements.
In the proposal, the FAA included general requirements for Level C and Level D FFSs that included ground handling characteristics for crosswinds and gusting crosswinds up to the aircraft's maximum demonstrated crosswind component.
Delta and A4A requested clarification if the maximum demonstrated crosswind value includes the gusting component, or is the intent to require the gusting component in addition to the maximum demonstrated crosswind value.
The FAA has not prescribed a specific wind magnitude and direction to be implemented in the gusting crosswind model requirements. The wind gust models that will be provided by the FAA in guidance material were designed to allow for tuning of the gust characteristics as needed for the particular training scenarios (such as steady state wind conditions and runway direction) and aircraft type being simulated. The tuning of gust models should be conducted in consideration of the maximum crosswind capabilities of the aircraft in order to provide operationally realistic scenarios that are survivable in training. The specific aircraft crosswind capabilities, to include the addition of gust factors, are determined by the aircraft OEM. If this information is not clear in the aircraft flight manual, the FSTD sponsor should consult with the aircraft OEM. Additionally, the FSTD sponsor should coordinate with the data provider to ensure that gust models do not exceed the capabilities of the simulator's aerodynamic and ground models. The FAA has added information material in Table A1A (entry no. 2.d.3) to the final rule for clarification.
In the proposal, the updated ground handling and ground reaction requirements in Table A1A included information that stated “tests required” for these particular sections. The FAA notes that this text was derived from the similar sections in the ICAO 9625 document as part of the alignment process.
Delta and A4A pointed out that the general requirement for gusting crosswind (Table A1A, Entry No. 3.1.S in the NPRM) states “tests required” and requested clarification if additional objective testing is required under the FSTD Directive for previously qualified FSTDs.
In the final rule, since the FAA restored the existing part 60 format for the general requirements table as compared to the ICAO format in the proposal (including sections for ground reaction and ground handling
In the proposal, the FAA included updated FSTD evaluation requirements for ground reaction characteristics to support the bounced landing recovery training task that is required in the Crewmember and Aircraft Dispatcher Training final rule. The new requirements included ground reaction modeling to simulate the effects of a bounced or skipped landing as well as the indications of a tail strike or nosewheel exceedances as appropriate for the simulated aircraft and conditions.
In the proposal, the new requirements for bounced landing recovery evaluation were included for Level C and Level D FSTDs in Appendix A as well as for the new Level 7 FTD in Appendix B.
TRU Simulation and A4A commented that the bounced landing requirements were added for the Level 7 FTD and questioned whether it was appropriate for this device.
Given the Crewmember and Aircraft Dispatcher Training final rule requirement that a Level C or higher FSTD be used to conduct bounced landing recovery training tasks, the FAA has removed the additional FSTD evaluation requirements in the final rule for bounced landing recovery from the Level 7 FTD minimum requirements in Appendix B.
As part of the bounced landing recovery requirements in the proposal, the FAA included requirements to include indications of a tail strike and nosewheel exceedances.
Boeing commented that the requirement for “nosewheel exceedances” needs to be more clearly defined (
The FAA agrees with the commenters and has removed the nosewheel exceedances requirement from the final rule as it is not necessary to accomplish the training objectives for bounced landing recovery training tasks. This language was replaced with “the effects and indications of ground contact due to landing in an abnormal aircraft attitude . . .” since information on aircraft attitude during the landing and go-around sequence will be more useful to the instructor in evaluating bounced landing recovery training tasks.
In the NPRM, the FAA proposed that ground reaction modeling must simulate “. . . the effects of a bounced or skipped landing (to include indications of a tail strike or nosewheel exceedances) as appropriate for the simulated aircraft and conditions”.
Delta and A4A commented that the existing part 60 requires verification of ground reaction and ground effects by minimum unstick speed, ground effects, and takeoff and landing performance objective tests. An SOC from the data provider and an affirmation that the model has been implemented correctly should be adequate. There is no need for additional subjective verification by a qualified pilot. A4A further commented that at least one data provider has implied that their current data and model meets the proposed requirements. CAE commented that the strut system simulation (damper/spring) and its geometry are already properly modeled and should provide the appropriate forces and moments during a bounce.
As described in the proposal, the FAA agrees with the commenters that much of the aerodynamic and ground reaction modeling is currently required and validated in several required objective tests for FSTD qualification. As such, the FAA has not required any additional objective testing for the qualification of bounced landing recovery training tasks in this final rule. In order to support bounced landing recovery training, the FSTD must have the ability to provide the instructor with the effects and indications of ground contact as a result of the FSTD being landed or conducting a go-around at an improper aircraft attitude. In addition to pitch attitude information, other parameters such as indications of nosewheel contact and indications of a tailstrike would provide useful information to the instructor in evaluating a bounced landing recovery maneuver. FAA agrees with the commenters that the use of a qualified SME pilot to evaluate these indications may be of limited value because they may not have any direct experience in the indications of a tailstrike in the airplane to base such an evaluation on. The FAA does recognize, however, that a tailstrike and other indications of ground contact can be computed in software using the geometric dimensions of the airplane and these indications will provide the instructor with additional feedback to assist in determining whether the aircraft landed in or a go-around was attempted in an unusual aircraft attitude. These indications and the ability of the modified FSTD to perform the intended training tasks are what should be evaluated by the sponsor's designated pilot as described in the FSTD Directive and § 60.16(a)(1).
The FAA has reviewed the current part 60 ground reaction and ground handling requirements along with associated objective testing that are already required for Level B through Level D FFSs and has determined that adequate requirements already exist in part 60 to evaluate and validate the aircraft dynamics necessary to support bounced landing recovery training tasks.
As noted in the NPRM, the FSTD evaluation requirements for bounced landing recovery maneuvers were introduced both to support new requirements in the Crewmember and Aircraft Dispatcher Training final rule as well as to address comments concerning potential deficiencies in FSTD fidelity in this flight regime.
An anonymous commenter stated that “there is no bounced landing training task listed in Table A1B (Table of Tasks v. Simulator Level). It is agreed that a
A4A commented that Boeing has already addressed the bounced landing recognition and recovery procedure in their operating manuals and in recurrent simulator training and that the FAA should review simulator data it currently receives to determine if recurrent training programs implemented due to the NTSB recommendations were effective. A4A and JetBlue further commented that “the training final rule limits new training requirements to recovery from bounced landing because carrier training programs currently include bounced landing training as recommended in FAA's InFO 08029 . . . simulator modeling for this final rule should be limited to enhancement to train recovery methods; it should avoid introducing elements that might induce negative training associated with `teaching to bounce'.” In addition, CAE made similar comments concerning the potential of a transfer of negative training in introducing a bounced condition during landing.
The FAA notes that bounced landing recovery is a training requirement for air carriers under § 121.423. While the minimum qualified task list in Table A1B does not specifically list bounced landing tasks, the final rule will require an amendment to the FSTD's SOQ that the FSTD has been evaluated for bounced landing recovery training tasks. As addressed in the Crewmember and Aircraft Dispatcher Training final rule, the FAA is aware of the incorporation of bounced landing recovery training by operators in response to the FAA's InFO and SAFO bulletins. To support the new training requirements in § 121.423 for bounced landing recovery training, the FSTD qualification standards were revised in this rule to ensure the FSTDs used to conduct such training have been properly evaluated for the training tasks.
The FAA agrees with commenters in that the purpose of bounced landing recovery training is to train bounced landing recovery methods and not to teach a pilot how to bounce the aircraft. While the simulation should support the ability to reproduce a bounce where the flight conditions dictate, the primary objective of training is to train recovery techniques should the landing result in an inadvertent bounce. The FAA agrees with the commenters in that these recovery techniques can be taught without stimulating an actual bounce during the landing sequence and rather “calling a bounce” to initiate the recovery maneuver. The FAA has amended the final rule to emphasize that the FSTD evaluation requirements are on the aircraft dynamics resulting from the bounced landing recovery and not in stimulating a bounce during the landing sequence.
The FAA further emphasizes that the FSTD evaluation requirements in the final rule that support bounced landing recovery training tasks are essentially a consolidation of existing requirements within part 60
Delta, FlightSafety, and A4A pointed out that the general requirement for ground reaction modeling (Table A1A, Entry No. 3.1.S in the NPRM) states “tests required” and requested clarification if additional objective testing is required under the FSTD Directive for previously qualified FSTDs.
In the final rule, since the FAA restored the existing part 60 format for the general requirements table as compared to the ICAO format in the proposal (including sections for ground reaction and ground handling characteristics), the text for “tests required” was removed from the ground reaction requirements in Table A1A, Entry No. 2.d.2. No additional objective testing for ground reaction and ground handling characteristics was intended for previously qualified FSTDs in FSTD Directive No. 2. The FAA further notes that all required objective testing is fully described in Table A2A, making any such “tests required” notations in the information column redundant.
In order to promote harmonization of FSTD evaluation standards with that of other national aviation authorities, the FAA proposed alignment of the part 60 Qualification Performance Standards (QPS) with the latest international FSTD evaluation guidance in the ICAO 9625, Edition 3, document. Unlike previous alignment efforts the FAA undertook with earlier versions of the ICAO 9625 document that only contained one level of FSTD, this alignment effort proved to be more complex because the Edition 3 document contained many other FSTD levels that do not share an equivalent fidelity level in part 60 and other FAA training regulations and guidance material. Furthermore, since the main purpose of this rulemaking was to define new FSTD evaluation standards for new training tasks introduced by the Crewmember and Aircraft Dispatcher Training final rule, practical time limits prevented the FAA from conducting the significant updates to other regulations and guidance material to support a complete change in the existing hierarchy of FSTD levels. For these reasons, a full alignment with all of the FSTD levels in the ICAO 9625 document was not proposed with this rulemaking and only portions of the technical guidance material from ICAO were incorporated where practical.
For reasons cited above, the FAA did not propose complete alignment with ICAO 9625, Edition 3. In lieu of conducting a full alignment, the FAA proposed partial alignment with the ICAO document where significant overlap existed between the FAA FSTD fidelity levels in the part 60 QPS and the ICAO document. This included alignment of the part 60 Level C and D FFS evaluation standards with that of the highest level of ICAO device (the Type VII device) as well as adding a new Level 7 FTD to align with the ICAO Type V device.
FAA received several general comments concerning the proposed partial alignment with the ICAO 9625 FSTD evaluation guidance document. A4A commented that the “incorporation of 9625 is not required to meet §§ 121.423 and 121.434. We are not opposed to harmonizing part 60 with the international standards but this piecemeal approach to incorporating the ICAO STD does not provide additional benefits for flight training”. A4A further stated that “the FAA should consider incorporating ICAO 9625 as the standard for flight training in its entirety. Until this approach for part 121 training can be adopted, incorporating pieces of the standard into part 60 is only providing additional burden without benefit.” American and Alaska Airlines made similar comments that there is no training value in adopting the ICAO standard as presented and recommended that the FAA should not adopt the ICAO standard unless doing so in its entirety. ALPA generally
The FAA notes that the primary purpose of this rulemaking was to update the FSTD evaluation standards to address the new extended envelope training introduced by the Crewmember and Aircraft Dispatcher Training final rule. Because the FAA and industry were integrally involved in the development of the ICAO 9625 FSTD evaluation guidance material, and much of the current part 60 and grandfathered FSTD standards are based upon previous versions of the ICAO 9625 document, the FAA proposed updating the current part 60 standard for certain FSTD levels that overlapped with similar FSTD levels defined in the ICAO 9625 document. Unlike previous versions of the ICAO 9625 document, ICAO 9625, Edition 3, introduced several new FSTD levels that have no direct equivalent in the part 60 rule. Because of the time critical nature of the extended envelope training requirements, it was determined that redefining all of the FAA FSTD levels to align with the ICAO document would not be practical because of the numerous other training rules and guidance material that would be affected if we made significant changes to the part 60 qualification standards and FSTD level definitions.
The benefits of general ICAO alignment are not readily quantifiable since they primarily focus on improving the overall simulation environment and not on specific safety issues. From an international harmonization standpoint, FSTD manufacturers and data providers can benefit from developing FSTDs and supporting data packages that meet a single internationally recognized standard. Despite statements made by one commenter concerning “illusory benefits from internationally aligned FSTD standards,” the FAA believes there is anecdotal evidence that supports the benefits of international harmonization. Based upon past experience with the previous international alignment efforts, the FAA points out that over 250 FSTDs (including FSTDs qualified by A4A air carriers) were voluntarily qualified against the more stringent ICAO 9625, Edition 2, JAR-STD 1A, Amendment 3,
Due to the time critical nature of the extended envelope training requirements, complete alignment with the ICAO 9625 document was not considered in this rulemaking. Most of the device levels defined in ICAO are not within the scope of part 60 (all but two FSTD levels in ICAO 9625 are for generic or representative devices that are not defined in part 60) and would require significant rulemaking and policy changes outside of part 60 to address a new hierarchy of device levels. The FAA considers the ICAO alignment conducted in this rulemaking as a significant step in maintaining harmonization with the international FSTD evaluation standards and will continue to look for opportunities to further expand the alignment with the ICAO 9625 document where practical.
Several commenters pointed out that some of the new requirements introduced in the proposed ICAO 9625 alignment would add to the cost of a new Level C or Level D FFS with no demonstrated value to training. The FAA partially agrees with the commenters in that it is difficult to quantify specific safety benefits from some of the new and updated standards introduced as a result of the ICAO alignment. Most of these changes in the ICAO alignment target the improvement of objective testing tolerances, the incorporation of testing requirements for new technology that is not currently addressed in the simulator standards, and improvement of the overall simulation environment.
A4A, JetBlue, Delta, and an anonymous commenter stated that the increased visual system field of view requirement from 180 degree × 40 degree in the existing part 60 general requirements to 200 degree × 40 degree in the proposal would introduce significant cost to a new simulator and has no demonstrated benefit to crew training. In addition, A4A and JetBlue further commented that the justification for this proposal is harmonizing with ICAO standards; there is no statutory or regulatory requirement or NTSB recommendation on this topic. The increased field of view for newly qualified FSTDs does not demonstrate any improved training value; the existing field of view has been used successfully in training programs worldwide for well over a decade. Increasing the field by 10 degrees on each side would add no value in taxiing or on the circling approach and there is no data or industry trend to indicate that pilots are experiencing difficulty performing these maneuvers using the current systems. Most part 121 air carriers train to Visual Flight Rules (VFR) minimums for a circling approach and in fact most flight schools that offer Airline Transport Pilot qualification courses now require only demonstration at a VFR level. A simulator field of view expansion to 200 degrees would not change practices at other facilities.
Concerning the cost of this new requirement, A4A further commented that the expense associated with this field of view expansion would add an estimated 20 to 30 percent to the cost of a visual system for the purchasing of a newly qualified FSTD, depending on the manufacturer. In most cases this would require the addition of at least one and possibly two image generators, very similar to helicopter simulators. In addition, changing the field of view standard for newly qualified FSTDs will prevent carriers from obtaining existing simulators that reside outside the United States (U.S.) that have a 180 degree field of view, and have not yet been qualified in the U.S. This would force carriers to purchase new simulators instead of purchasing used simulators; it will cost more and impose less efficient training options.
The FAA concurs with the commenters in that little evidence suggests that increasing the visual system field of view requirements to 200 degrees (horizontal) will have a quantifiable safety benefit. In order to avoid incurring significant additional cost as a result of the ICAO 9625 alignment as identified by the commenters, the visual system field of view requirements will remain at the existing part 60 requirement of 180 degrees × 40 degrees for Level C and Level D FFSs in the final rule.
In the NPRM, the FAA proposed the addition of a new objective visual lightpoint brightness test as part of the ICAO 9625 alignment. The addition of this test addresses inherent system limitations in fixed matrix visual display systems (such as LCD systems) and their ability to display lightpoints as compared to older calligraphic display systems. American, A4A, and an
The FAA concurs with the commenters and has reviewed the updated ICAO 9625, Edition 4, document as suggested. In that document, the light point brightness test tolerance has been amended to be less restrictive (5.8 foot-lamberts) as compared to the Edition 3 document due to the inherent limitations of solid state illuminators (such as LEDs). In these types of systems, the benefit of improved temporal stability justifies the inherently lower brightness that an LED can produce as compared to a standard lamp illuminator. To support the alignment of the part 60 technical requirements with the ICAO document, as well as to address the commenters concerns, the FAA has amended this objective test (Table A2A and Table B2A, Entry No. 4.a.7.) in the final rule as recommended by the commenters.
In the NPRM, the FAA proposed to reduce the transport delay tolerances from150 millisecond (ms) to a more restrictive 100 ms tolerance for the purposes of aligning with ICAO 9625, Edition 3 as well as improving the overall simulation environment with faster simulation induced response times. The FAA received many comments on this issue which generally recommended that the FAA should not adopt these tighter tolerances. Boeing, FedEx, Delta, A4A, and American commented that while ICAO 9625 Edition 3 recommends a more restrictive tolerance than what is currently in part 60, there appears to be no evidence that timing below 150 ms provides better crew training. Boeing further commented that those values have been hard to achieve in industry, costing substantial amounts of money to meet this requirement. A4A further commented that “the FAA should not change the transport delay standard because there have been no reports of pilot induced oscillation due to a throughput (transport) delay tolerance being too high. The current transport delay tolerance of 150 ms has proven to be adequate for all Level D FFSs with no known problems to date. The tolerance has no impact on safety and is a technical limitation of the software and hardware. Carriers have operated with the 150 ms for decades with no measurable degradation in training. In addition, the ICAO standard is being revised and will change in 2015; an FAA change to 100 ms will result in misaligned U.S. and ICAO standards starting next year. Therefore, to require adjustment of the delay to 100 ms would provide no additional benefit to pilot training and it is recommended that 150 ms tolerance be retained.” Frasca, American, Boeing, and CAE made similar comments concerning the less restrictive 120 ms tolerance that has been amended in ICAO 9625, Edition 4.
While the FAA would concur that it is difficult to quantify transfer of training benefits with transport delay tolerances reduced to lower than 150 ms, it has been well established through multiple research studies that transport delay in simulation can significantly affect pilot performance. The FAA maintains that the proposed 100 ms tolerance is not a significant technical limitation of simulators and has, in fact, been a minimum FSTD qualification requirement for helicopter simulators since 1994.
To address these concerns and to maintain consistency with the international guidance material, the FAA has amended the final rule to incorporate the updated ICAO 9625, Edition 4, transport delay tolerances of 100 ms for motion system/instrument response and 120 ms for visual system response as recommended by many commenters.
As part of the ICAO 9625 alignment proposed in the NPRM, the FAA included objective motion cueing fidelity testing (OMCT) as a minimum requirement for FSTD qualification.
The FAA received several comments on the adoption of the ICAO 9625 OMCT test. American commented that the OMCT in the ICAO 9625 document is still a work in progress with some testing details that are still under consideration as more experience is gained with conducting the test. American further questioned what source data was used to define the motion fidelity tolerances that are associated with the test as well as the lack of a time-domain test that was supposed to complement the frequency-domain test in the ICAO document. Additionally, American stated that the purpose of including an incomplete set of tests in the ICAO standard is to collect data and that a final rule is not appropriate vehicle to `gather data'. Finally, American recommended against replacing the existing motion cueing signature (MCPS) tests with the OMCT, however, if it were to be adopted in the final rule, it should be limited to an SOC issued by the training device manufacturer stating compliance. A4A and JetBlue made similar comments opposing the adoption of the proposed OMCT.
The FAA agrees that the proposed OMCT from ICAO 9625, Edition 3, primarily consisted of a testing method with no specific fidelity standard applied to the test results. The FAA further notes that the recently published ICAO 9625, Edition 4, document has improved the OMCT method and has added recommended tolerances to the test results that were based upon“. . . the statistical results of reliable OMCT measurements of eight Level D or Type VII FSTDs.” The FAA maintains that a significant weakness in today's FSTD evaluation standards is the lack of a consistent method to measure and apply motion cueing in crew training
To address the commenters concerns, the FAA has amended the final rule so as to not require OMCT results in the MQTG for annual continuing qualification evaluation purposes. Instead, OMCT results will only be required once during the initial qualification of the FSTD and included in an SOC from the FSTD manufacturer. Furthermore, the FAA will not require a specific tolerance to be met for this test and only require that the FSTD manufacturer use the OMCT to document the overall performance of the motion system and use its results to aid in the tuning of the motion cueing algorithms. Finally, because the technical details of this testing method are multifaceted and not suitable for inclusion in the final rule's text, the FAA will issue guidance material with the final rule on how to apply the OMCT to meet the part 60 requirements.
A4A commented that the directional sound requirements (incorporated from the ICAO 9625 document) are not cost/benefit justified and are not required to meet any existing or proposed training requirement.
The FAA notes that the requirement for “sound directionality” was introduced as part of the ICAO 9625 alignment proposed in the NPRM.
Concurrent with the development of the part 60 NPRM, an international working group was convened to review and update the ICAO 9625, Edition 3, document to incorporate FSTD evaluation requirements to address full stall training, UPRT, and icing. This working group was essentially operating in parallel with the part 60 rulemaking effort and used a similar set of recommendations issued from the ICATEE working group to incorporate FSTD evaluation standards into the ICAO 9625 document. In addition to the changes made to support UPRT and stall evaluation, this working group also made general changes to the ICAO 9625 document that addressed known issues with the Edition 3 document. These included changes that addressed technological improvements, changes that updated various test tolerances which were relieving in nature, as well as editorial changes to correct or clarify the requirements in the Edition 3 document. Since the FAA proposed alignment with ICAO 9625, Edition 3, many of the known issues identified with that document were also present in the NPRM.
The FAA received several comments, including various comments from A4A, Boeing, CAE, Frasca, ICAO, and TRU Simulation that recommended the use of the draft ICAO 9625, Edition 4, document in order to correct specific problems introduced from ICAO 9625, Edition 3, into the NPRM. Several commenters also recommended aligning the FAA requirements for the extended envelope training tasks with that of the updated ICAO document. Many of these comments have been discussed in previous sections of this document.
Since the publication of the NPRM and subsequent close of the comment period, ICAO has published the final version of the ICAO 9625, Edition 4, document. The FAA has reviewed its contents for potential incorporation of the changes into the final rule as recommended by several commenters and has found that the changes made to the ICAO document in the Edition 4 release were relatively limited in scope and have some overlap with the requirements published in the NPRM in the following areas:
1. Introduced “extended envelope” FSTD evaluation requirements for full stall, UPRT, and airframe icing.
2. Changes to testing requirements and tolerances to improve and correct issues in ICAO 9625, Edition 3, including transport delay testing tolerances, visual lightpoint brightness tolerances, objective motion cueing testing tolerances, and other changes that were generally less restrictive.
3. Other editorial and technical changes to improve the document and clarify existing requirements.
The FAA agrees with the commenters that alignment with the latest edition of the ICAO 9625 document would be desirable, particularly with evaluation requirements that have been found to be problematic in ICAO 9625, Edition 3. The FAA has incorporated many of these changes into the final rule; however, some differences were maintained to address public comments to the NPRM, as well as to address FAA specific training requirements and FSTD grandfathering rights. Where the more restrictive requirements were introduced in ICAO 9625, Edition 4, that were not included in the NPRM for public comment, the FAA included these in the final rule within non-regulatory “information” sections as recommended practices. The following table summarizes the sections that were modified in the final rule to incorporate changes made in ICAO 9625, Edition 4:
The FAA received several comments concerning the integration of the ICAO requirements within the tables of the part 60 QPS appendices. Several commenters pointed out that while there were requirements introduced into the tables for the purpose of aligning with the ICAO equivalent FSTD levels, many of these requirements were carried over to lower level FSTDs that were not specifically targeted in the alignment (
The FAA agrees with the commenters in that the integration of the ICAO numbering system into some of the part 60 tables resulted in some overlapping requirements with FSTD levels that were not subject to the alignment. The main reason for this overlap was to avoid the addition of redundant table entries for the aligned Level C and Level D devices and the non-aligned Level A and Level B devices in cases where they substantially share the same requirement. Other changes were carried over to the Level A and Level B requirements simply because the requirements represented existing practice, and the FAA found it unlikely that a new FSTD would be initially qualified that could not meet these requirements. For example, one commenter noted that the requirement in Table A3B for taxiway edge lights to be of a correct color was a new requirement introduced for a Level A and Level B FFS. While this is a new requirement as compared to the current part 60, the FAA finds it very unlikely that any new FSTD would be initially qualified with a visual display system that could not produce taxiway edge lights of the correct color.
To address the commenters concerns as well as to reduce the overall complexity of the general requirements tables, the FAA has reverted back to the existing part 60 structure and format in the final rule for the general requirements tables in Appendix A and Appendix B (Tables A1A and A1B). Where specific changes were proposed in the ICAO alignment process, corresponding changes were made to the existing sections within the current part 60 general requirements tables for the appropriate FSTD levels. This will eliminate unintentional carryover of requirements into the other FSTD levels that were not subject to the proposed ICAO alignment.
Additionally, the FAA has examined other tables impacted by the ICAO alignment and has corrected other specific testing requirements as identified by the commenters that were unintentionally carried over to FSTD levels not subject to the ICAO alignment.
Finally, to address comments concerning the integration of the functions and subjective testing tables for all FTD levels in Appendix B, the FAA has separated the Level 7 FTD requirements into different tables and
CAE commented that the FAA should “consider the adoption of the ICAO 9625 document technical standards through Incorporation by Reference as allowed by statute and in accordance with 1 CFR part 51, and allow for the qualification of devices using the ICAO technical standard as an Alternate Means of Compliance (AMOC).” An individual commenter recommended that since the “fast track” process for part 60 QPS revisions has never come to fruition, the FAA should conduct separate rulemaking to remove the part 60 QPS appendices and replace them with an industry consensus standard.
The FAA notes that due to the high level of interest in this rulemaking with regards to supporting other significant rulemaking work and Public Law, it was determined that it would not be appropriate for the FAA to use the streamlined process as described by the commenter
Regarding CAE's comment concerning the use of the ICAO 9625 document as an AMOC to the part 60 standards, the FAA agrees that allowing the use of other technical FSTD evaluation standards (such as ICAO 9625 or other FSTD evaluation standards issued by a national aviation authority) to initially qualify a new FSTD may allow for a more refined approach to incorporating future changes to the FSTD technical standards. The FAA agrees that where updated internationally recognized FSTD evaluation standards have been published and have been determined to provide an equivalent or higher level of safety (
Furthermore, the ability for the FAA to recognize equivalent FSTD evaluation standards issued by ICAO and national aviation authorities will support the qualification of FSTDs located in other countries and promote existing bilateral agreements which may result in cost savings for FSTD sponsors, manufacturers, and data providers. Particularly with FSTDs that are qualified by multiple national aviation authorities, the ability to recognize an equivalent international standard can reduce redundant testing requirements and documentation that would otherwise be needed to demonstrate compliance with multiple international standards. The FAA additionally points out that a similar process was successfully used prior to the initial publication of part 60 in 2008 where over 250 FSTDs were initially qualified on a voluntary basis using updated international FSTD evaluation standards (including ICAO and European FSTD evaluation standards) in lieu of the then current FAA evaluation standards in Advisory Circular (AC) 120-40B.
Where such new and updated standards are available, potential safety benefits, as well as cost savings, can be quickly realized through the recognition of new standards ahead of the formal rulemaking process. As with most of the past updates to the international standards, there are significant delays of months and even years in integrating updated ICAO standards into regulation. This results in a continuous lag between advances in simulation technology and the regulatory standards.
In order for the agency to be more responsive to changes in the international FSTD evaluation criteria as well as to provide additional options to sponsors of FSTDs that are qualified by multiple national aviation authorities, the FAA has included deviation authority in § 60.15(c) of the final rule to accept FSTD evaluation standards (such as ICAO 9625 or other FSTD evaluation standards issued by a national aviation authority). Such deviations must demonstrate that there will be no adverse impact to the fidelity or the capabilities of the FSTD as compared to the part 60 QPS. Deviations may be granted to an FSTD sponsor or to an FSTD manufacturer for application on multiple FSTDs. Where an FSTD has been initially qualified under the deviation authority, the evaluation standard will become a part of the FSTD's permanent qualification basis and recorded in the FSTD's MQTG and SOQ. The FAA will issue guidance material with this final rule in the form of an NSP guidance bulletin that explains the process for submitting and reviewing deviation requests under § 60.15(c).
As part of the ICAO 9625 alignment process, the FAA introduced a new FSTD level to the fixed wing FSTD evaluation standards in the NPRM. This FSTD level was based upon the ICAO 9625 Type V device and was intended to define requirements for a high fidelity, fixed-base FTD that could be used to conduct additional introductory training tasks beyond what the Level 6 FTD is currently qualified to do. Furthermore, the addition of this FTD level to the fixed wing standards in part 60 Appendix B would align with the current Level 7 helicopter FTD evaluation requirements that are already in Appendix D of part 60.
Boeing commented that the Level 7 FTD requirements exceed those for Level A and Level B FFSs. The Level 7 FTD will offer no additional training credit and appears to have no additional benefit to the industry. CAE further commented that while the Level 7 FTD is introduced and is based upon the ICAO Type V device, the applicable
The FAA notes that the corresponding “Tasks vs. Simulator/FTD Level” tables (Tables A1A and B1B) define the particular tasks that a particular FSTD level is qualified to conduct. Table B1B was updated in the NPRM to include the Level 7 FTD and adds several tasks that Level A and Level B FFSs are not currently qualified to conduct. The addition of this FSTD level was based upon the ICAO recommendations to create a high fidelity, fixed-base FTD in which introductory training could be conducted in lieu of a higher cost FFS. The part 60 FSTD qualification standards do not currently define such a high fidelity FTD
Furthermore, the FAA notes that a similar device level was introduced for helicopter training (a helicopter Level 7 FTD) with the initial publication of part 60 in 2008. The FAA has qualified several of these Level 7 helicopter FTDs since the initial publication of part 60 and these devices continue to be used within operator's training programs.
ALPA commented that while they support the incorporation of the ICAO 9625, Edition 3, guidance, they are concerned with the intention to increase use of non-motion devices at the expense of more realistic training in higher fidelity devices with motion. In addition, ALPA stated that they are “concerned with the stated rationale for adopting the ICAO Doc 9625, Edition 3 Type V simulator guidance. The NPRM indicates this guidance will be used to introduce a new Level VII simulator for the purposes of increasing the opportunities to utilize fixed base, non-motion simulators. Some use of fixed based simulators is appropriate. However, the higher the simulator fidelity is, and the more realistic the training environment is, the better the transfer of learning to actual flight will be.”
ALPA went on to state that the “highest-level flight simulators need to be used to the maximum extent possible. It is imperative that all end-level evaluations be conducted in full flight simulators (FFS) with six degree of freedom motion cues. Maneuver-based validation points required by airline-specific AQP documentation must be conducted in a FFS with six degree of freedom motion cues also. In addition, these FFSs should be used extensively in advance of evaluations and validation points to provide significant opportunity to prepare.”
The FAA notes that the concept of the Level 7 FTD was based primarily upon the recommendations made in the ICAO 9625 document. In this document, through the work of an industry and government working group, it was determined that the introduction of many training tasks could be conducted in a high fidelity, fixed-base FTD where the continuation and completion of that training task (training to proficiency) is conducted in a FFS with motion cueing. The FAA shares the commenter's concerns regarding the use of FFSs for end-level evaluations and in advance of evaluations and validations points. In the proposal, the FAA attempted to capture this ICAO concept in the “Table of Tasks v. FTD Level” (Table B1B), which defines the minimum qualified tasks for a specific FSTD level. The FAA has made additional amendments in the final rule to better define the differences in “training” and “training to proficiency” in Table B1B to maintain consistency with ICAO 9625.
Finally, the FAA notes that the part 60 FSTD qualification standards only define what training tasks an FSTD is qualified to conduct and does not define how the FSTD will be approved for use in a training program. The FAA is currently reviewing supporting training guidance material and will take these comments into consideration when making corresponding updates to address this new FSTD level.
In the proposal, the FAA requested comment on the proposed three year compliance period for previously qualified FSTDs as described in the FSTD Directive. This request was to determine if the three year compliance period was adequate to conduct the necessary modifications to FSTDs in consideration of the March 2019 compliance date for the extended envelope provisions in the Crewmember and Aircraft Dispatcher Training final rule.
Delta, American, and A4A commented that the three year compliance date proposed in FSTD Directive No. 2 should be aligned with the air carrier training rule's compliance date of March 12, 2019, for the extended envelope training provisions. Delta and A4A additionally commented that there would not be enough lead time to develop supplemental data for legacy aircraft within the proposed three year compliance period and recommended that the compliance period be changed to a firm date of March 12, 2019, to align with the air carrier training rule. American and A4A also recommended that the due date of the FSTD Directive be 90 days prior to March 12, 2019, for incorporation and review by the local training authority.
The FAA agrees with the commenters in that the compliance period of the FSTD Directive should be changed to a firm date that aligns to the Crewmember and Aircraft Dispatcher Training final rule compliance date of March 12, 2019, and has made this change in the final rule. The FAA is aware that some aircraft manufacturers and third party data providers have already made substantial progress in the development of simulator data packages to meet the requirements of the proposed FSTD Directive and additional data packages will likely become available for many FSTD sponsors soon after the publication date of this final rule. Finally, it was not the intent of the FAA that all FSTDs must be modified and evaluated by the compliance dates proposed in this rule. As described in the proposal, only those FSTDs that will be used to conduct certain training tasks will require compliance with the FSTD Directive. This should provide FSTD sponsors with some flexibility in determining which FSTDs to modify as well as determining a timeline for the FSTD modifications that meets their training requirements.
TRU Simulation and A4A commented that the authorized performance range tables for Level 5 FTDs in Appendix B (Table B2B, B2C, B2D, and B2E) are incorrect for the change force maneuvers. For each maneuver, the stick force directions are reversed from the direction as needed to maintain airspeed as described. This error exists in the current part 60 and exists for all sets of aircraft. TRU Simulation and A4A further commented that the alternative data source tables for Level 5 FTDs are invaluable, especially when flight test data is difficult to come by. However, there are no data tables published in the current part 60 for turbofan/turbojet aircraft. These are the aircraft where such tables would have
The FAA concurs with the commenters and has amended the authorized performance range tables in Appendix B in the final rule to correct the stated errors in Tables B2B, B2C, B2D, and B2E. While the FAA agrees with the commenters that such additional alternative source data for turbofan/turbojet aircraft could provide for less expensive data collection and validation of Level 5 FTDs, the FAA did not propose modifications to these tables and making significant additions and modifications to these tables would be out of scope for this rulemaking.
CAE commented that the requirement for the objective test sequence that is part of the quarterly inspections requires that all of the objective tests as defined in the applicable QPS are included in the content of the complete annual evaluation. There are certain tests, however, such as visual geometry and motion frequency domain tests, that primarily serve to confirm or baseline the system performance at the initial evaluation. These tests are significantly time consuming to run and require special resources and equipment and do not necessarily provide value or benefit as part of the quarterly test sequence.
The FAA agrees with the commenter in that some tests specified in the table of objective tests may be time consuming and require special equipment to run on an annual basis as part of the quarterly test sequence. Concerning the objective motion cueing test as stated by the commenter, the FAA concurs that it would not be reasonable to conduct this test on an annual basis and has amended the final rule to only require this test be run at the initial evaluation.
With regards to the visual geometry test, the FAA has found that there is some benefit to verifying that the FSTD's visual system geometry has not been changed over time. As with the currently accepted practice for visual geometry testing, the FAA has not required FSTD sponsors to verify the visual system geometry on an annual basis using a theodolite since this requires special equipment and resources that most sponsors do not have. In lieu of conducting such detailed visual geometry testing on continuing qualification evaluations, provisions were added in the NPRM (Attachment 2, paragraph 18) that were consistent with the ICAO requirements allowing for the use of a “hand-held optical checking device” to check that the relative positioning is maintained. Due to this comment and other comments concerning the complexity of the visual system geometry test as well as the fact that the ICAO visual system geometry test was specified assuming a 200 × 40 degree field of view system, the FAA has maintained the existing part 60 existing visual geometry test in the final rule. The FAA has further added clarifying language in the test requirement (Table A2A, test 4.a.2) that allows for methods to quickly check the visual system geometry for continuing qualification evaluations.
In the proposal, the FAA amended the windshear qualification requirements as a result of recommendations received from the SPAW ARC concerning improvements to windshear training. These proposed changes included requirements for complex windshear models to be available on the FSTD, the addition of realistic levels of turbulence associated with windshear, and requiring that all IOS selectable windshear profiles have a method to ensure the FSTD is properly configured for the selected windshear profile.
With regards to the updated windshear qualification requirements, A4A, Boeing, and an anonymous commenter stated that the proposal requires all required windshear models to be selectable and clearly labeled on the IOS. Additionally, they pointed out that all IOS selectable windshear models must employ a method, such as a simulator preset, to ensure that the FFS is properly configured for use in training. This method must address variables such as windshear intensity, aircraft configurations (weights, flap settings, etc.), and ambient conditions to ensure that the proper windshear recognition cues and training objectives are present as originally qualified. The commenters went on to state that this implies that all windshear training scenarios will have to be evaluated for some specific condition that is not specified and that this is a far reaching requirement and should be removed. The commenters suggested that a more definitive requirement to have a method to repeatedly establish a survivable and a non-survivable windshear scenario would make more sense and meet the desired requirement.
The FAA notes that this particular proposed change to the windshear qualification requirements was made to ensure that the windshear models which are available on the IOS are properly set up for use in training as recommended by the SPAW ARC. Specifically, the SPAW ARC recommended that all required windshear models should be selectable and clearly labeled on the IOS. The SPAW ARC determined that the labeling of available windshear models is not standardized in many FSTDs and instructors may lack the necessary information to ensure that the windshear recognition cues in a particular training scenario will occur as desired.
While the FAA agrees that the use of presets in the simulator should be at the discretion of the sponsor, there should be a method employed by the operator to ensure repeatability of the windshear training profiles if the instructor has the ability to change basic parameters of the aircraft or conditions that would affect the outcome of the windshear maneuver (
With regards to the changes proposed for § 60.15(e), Delta, A4A, and an anonymous commenter noted that while
The FAA concurs with the commenters and has amended the final rule to state that this testing “must be accomplished at the sponsor's training facility or other sponsor designated location where training will take place, except as provided for in the applicable QPS.” With regards to Frasca's comment, the ability to submit QTG test results conducted at the manufacturer's facility is defined in the applicable QPS (see Appendix A, paragraph 11.h.) and has not changed in this rulemaking. The submission of QTG test results in this manner will remain acceptable as described in the applicable QPS.
An individual commented that general aviation needs more extensive use of simulators rather than less. Reducing the number of hours a simulator can be used towards a private or instrument rating is bad for aviation and the flying community. Letters of authorization should increase the usage of simulator training allowed.
The FAA notes that this rulemaking has not reduced the number of hours that a FSTD can be used for a private pilot or instrument rating. The FAA believes the commenter is referring to training devices not covered under part 60. Those devices are referred to as aviation training devices. An approved aviation training device, if determined to meet the standards in AC 61-136A,
In July 2014, the FAA conducted a preliminary regulatory evaluation to estimate the costs and benefits of the provisions proposed in the NPRM. This regulatory evaluation was posted on the public docket with the NPRM. The agency received several comments on the NPRM from air carriers, FSTD manufacturers, and trade associations.
An individual commenter questioned whether the FAA factored in the costs associated with the acquisition of OEM data needed to comply with the new requirements; the costs associated with obtaining licenses for third party implementation of data; and the costs associated with the loss of FFS utilization/revenue for the changes, design, implementation, installation, validation and actual FAA qualification activities. American, Delta, JetBlue, and A4A made similar comments on the basis of the simulator modification costs and how the FAA can provide an estimate if data licensing pricing and implementation costs are unknown. American and A4A additionally commented that the FAA needs to provide their assumptions used for the cost analysis. In addition, A4A further commented that the cost estimate for implementation of UPRT is not realistic, is understated, and will depend upon the host and software architecture of the device being updated. A4A also stated that once more definitive data is developed the FAA should prepare a supplemental regulatory impact analysis (RIA) to update the cost estimate for upgrading FSTDs and provide more detail on the assumptions used in the analysis.
The FAA notes that in the preliminary RIA, the estimated cost of aerodynamic model development included all modifications needed to meet the standards proposed for full stall, UPRT, and icing evaluation. This cost was estimated on a per model basis for grandfathered FSTDs and was further broken down into “complex” and “simple” projects that were based upon the likelihood that existing data was available to support the necessary modifications. This cost was estimated based upon feedback from an industry questionnaire which estimated the cost of a “complex” model development at $100,000 and a “simple” model development at $60,000. Since many FSTDs share a common aerodynamic model developed by a common source, it was assumed that the costs of aerodynamic model development would be distributed amongst the purchasers of the model. Section II.d. of the RIA that was published with the NPRM, fully explained the agency's assumptions and rationale used to develop the cost estimates.
With regards to implementation costs, the FAA calculated this separately from the aerodynamic model development costs on a per unit basis since implementation costs would impact individual FSTDs and not be distributed amongst several FSTDs. The FAA estimated the per unit costs as $77,307 per FSTD to include implementation costs, lost productivity/revenue, SME pilot testing, and hardware modifications. This estimate includes 45 hours of lost training time at $500 per hour to conduct these activities. This estimate was based upon the responses from an industry questionnaire and is fully explained in the RIA that was placed on the public docket with the NPRM. The FAA did not receive any cost estimates in the public comments concerning additional licensing fees for the implementation of data by a third party.
An individual commenter further questioned the cost basis for the icing modifications and that the summary is not based on any factual, verifiable analysis. The commenter further stated that assumptions are made that icing upgrades can be accomplished at the same time as non-icing upgrades and that there is no basis in fact for this statement and because of that, the costs are artificially low. A4A and American made similar comments concerning the cost of the required modifications for icing.
The FAA notes that the costs for the aerodynamic modeling development necessary for both the full stall requirements and the icing requirements were estimated based upon the responses from an industry questionnaire. Since most simulators for transport category aircraft currently use icing models that are supplied by a common source as that of the aerodynamic model, the FAA assumed the updated models for both full stall and icing would likely be developed concurrently by the data provider and subsequently installed by the FSTD sponsors as a package in most cases. The agency's rationale for the breakdown of aerodynamic modeling costs for both stall and icing are described in the regulatory evaluation that was published with the NPRM.
In response to these comments, the FAA has revised its cost estimates for the final rule to include additional
As a result of this additional information as well as further analysis conducted on FAA FSTD qualification records, the FAA was able to group the FSTDs into seven different categories. The groups were based upon the estimated cost components to implement the modifications needed to meet the requirements of FSTD Directive No. 2. The estimated costs are separated by various factors such as the anticipated source of the aerodynamic data, whether the FSTD will need a standard data revision before further modifications can occur, whether the FSTD could potentially need a significant hardware update, and other factors that might affect the overall cost to meet the requirements of this final rule. This refined granularity for categorizing the FSTDs as well as the estimated cost for each category of FSTD is fully explained in the final RIA that is published with this final rule.
American commented that the cost to bring an FSTD into compliance with FSTD Directive No. 2 is low by many orders of magnitude. Older simulators will need new IOSs since many FSTDs cannot support the required graphics capabilities and would have to be replaced. American further commented that they have a rough estimate from one vendor that it will cost $250,000 alone for IOS update/replacement. A4A made similar comments that older simulators would need IOS replacement at an estimated cost of $250,000 in order to meet the instructor feedback mechanism requirements for UPRT. A4A further commented that this underestimated cost is a concern because there is no benefit to this element of the proposal as there are other methods available to provide instructors with the information necessary to evaluate a pilot's skills during simulator sessions that are used successfully today. The record and playback function should be left as an option available to FSTD customers, but it should be removed from this proposed rule.
The FAA notes that the requirements for UPRT in the proposal and in the final rule do not specifically require the use of graphical displays to provide the necessary feedback. The FAA provided some example displays in Attachment 7 of Appendix A, but these examples are within an “information” section as recommendations, but are not regulatory. The FAA acknowledges that the instructor feedback that is necessary for UPRT could potentially be accomplished using methods other than graphical displays (such as numerical or discrete feedback at the IOS) and the agency has not been overly prescriptive in the final rule that requires a single solution. The FAA further notes that the requirement for video and audio recording and playback has been removed in the final rule as discussed in previous sections and this should provide some cost relief in meeting the requirements for UPRT. Finally, the FAA agrees with American and A4A in that there are a small number of older simulators still in operation which may have IOS display systems that cannot meet the requirements for UPRT without extensive modification or replacement. The FAA has made adjustments to the final RIA to account for the additional cost of replacing old IOS display systems for some older FSTDs.
American commented that “. . . the FAA indicates cost savings by Sponsors not modifying all FSTDs, just part of the fleet. This is not an option for [American] and we believe all sponsors. This would impose scheduling complexity. Cost and other factors should be reviewed in the context of modifying all part 121 flight simulators. It is not feasible to only modify part of a simulator fleet and efficiently schedule crews. Our plan is to modify all FSTDs in our fleet. This will drive the costs higher with increase data licenses, implementation costs, and training impact. This does not provide additional cost relief for the sponsors.” Similar comments were made by A4A. An individual commenter stated that it appears that the effect on the industry could include a larger number of Level C and Level D FFSs than the 322 cited in the RIA and asked if the FAA calculated total costs if all currently FAA qualified Level C and Level D devices were to comply with FSTD Directive No. 2. This commenter further questioned whether the FAA calculated the cost to a sponsor if an FFS were to not comply with FSTD Directive No. 2.
The FAA notes that the cost estimates for FSTD Directive No. 2 included the cost to update and evaluate all Level C and Level D FFSs that could potentially be used to meet the part 121 extended envelope training requirements. The FAA assumed that all part 121 Level C and Level D FFSs would require updating and did not include any cost reductions in the RIA. These assumptions and the associated rationale were fully described in the RIA that was published with the NPRM.
The FAA further notes that the costs for previously qualified FSTDs were derived solely from the proposed FSTD Directive for full stall, upset recovery, icing, bounced landing recovery, and gusting crosswind FSTD evaluation requirements in the NPRM. Compliance with this Directive is only required for sponsors of FSTDs that will be used to deliver such training. The only operators required to conduct such training are air carriers operating under part 121. The estimated 322 FSTDs were derived from those currently qualified FSTDs that simulate an aircraft that is likely to be used in a U.S. part 121 air carrier's training program. Since the NPRM was published, the number of FSTDs that could be impacted by the air carrier training requirements has increased from 322 to 335 FSTDs. We assumed that the cost of modifying the previously qualified FSTDs that are not used in part 121 training are not a cost of this rule because these operators are not required to conduct such training for these particular tasks. If a sponsor chooses not to offer the training defined in the FSTD Directive, there are no additional requirements or costs imposed by this rule for previously qualified FSTDs.
American and A4A commented that the provisions included in the NPRM for Level A and Level B FFSs have no applied cost savings for sponsors since there are no Level A or Level B FFSs for part 121 sponsors.
The FAA notes that as of the close of the comment period of the NPRM, one Level A and one Level B FFS are still in operation and actively sponsored by part 121 operators. No cost savings were applied in the RIA for Level A and Level B FFSs as stated by the commenters.
Frasca commented that the NPRM stated that only sponsors are affected by this rule and FSTD sponsors are air carriers who own simulators to train their pilots or training centers that own simulators and sell simulator training time. Frasca went on to state that this statement assumes only part 119 and part 142 organizations, implying part
The FAA acknowledges CAE's comment in that other entities beyond the FSTD sponsor may be indirectly affected by this rule; however, the part 60 requirements apply to FSTD sponsors and not directly to the FSTD manufacturers and data providers. The FAA concurs with Frasca's comment in that all affected FSTD sponsors should be considered in the cost analysis of the rule. The FAA points out that the cost estimates in the RIA considered all FSTDs and sponsors that may be affected by this rulemaking, regardless of the certificate held by the sponsor.
A4A commented that, in the NPRM, the FAA states that “Internationally aligned FSTD standards facilitate cost savings for FSTD operators because they effectively reduce the number of different FSTD designs that are required.” A4A further stated that “We can find no simulator manufacturer information in the docket to substantiate this statement. The FAA should explain and provide the basis for this statement. Based on past experience, the A4A believes that simulator manufacturers will continue to differentiate their product features instead of adopting one design due to aligned standards. Unless simulator manufacturers can provide product pricing information that proves otherwise, there will be no savings for purchasers of FSTDs as a result of the alignment proposed in this rule. A final or supplemental RIA must therefore eliminate reference to or quantification of illusory benefits from internationally-aligned FSTD standards.”
The FAA notes that while the NPRM and RIA references qualitative benefits and potential cost savings due to internationally aligned FSTD evaluation standards, there were no quantified benefits included in the preliminary or final RIA. The FAA acknowledges that there will be a small cost associated with updating the part 60 FSTD evaluation standards to the latest ICAO 9625 document. In the RIA that was published with the NPRM, the FAA estimated the cost of compliance to initially qualify a new FSTD under the proposed standards that were aligned with ICAO 9625, Edition 3. Based upon the responses to a questionnaire that was distributed to industry for the purposes of determining these costs, the FAA estimated the recurring and non-recurring cost of compliance with the internationally aligned standards to be approximately $30,431.82 per FSTD. Considering that the cost of a new Level C or Level D FSTD can range from $8 million or more, the incremental cost of compliance with the internationally aligned standards will represent less than 0.5 percent of the cost of a new FSTD. Furthermore, as a result of the comments received on the NPRM as discussed in previous sections, the FAA has removed and/or modified some of the more costly requirements in the final rule which were introduced by the ICAO alignment (
The FAA maintains that alignment with updated international FSTD evaluation standards benefits industry in a number of ways. Because updates made to the ICAO document are typically conducted by working groups with a significant amount of industry participation, many of those changes are made to correct problems with the existing standards that result in requirements that are sometimes less restrictive, deal with new technology that is not adequately addressed in existing standards, and clarifies requirements that are ambiguous in nature and left to subjective assessment. For example, in the current part 60, objective tests that are validated against engineering simulation data are generally required to meet tighter tolerances than that of objective tests that are validated against flight test data.
Additionally, international alignment can reduce redundant testing requirements and documentation for sponsors of FSTDs that are qualified by multiple national aviation authorities. A long standing requirement for the qualification of FSTDs by the FAA and many other national aviation authorities is the development of a MQTG which documents that the FSTD meets the evaluation requirements and any required objective testing of the FSTD as compared to flight test or other validation data. Where FSTDs are qualified by different countries and national aviation authorities under different standards, the FSTD sponsor is sometimes required to create redundant documentation and conduct additional testing to meet each individual qualification standard. This usually results in complex differences matrices and, in some cases, completely different MQTG documents for each qualifying authority. Where standards are aligned on an international basis, this redundant documentation and testing burden can be significantly reduced. Furthermore, because much of the flight test data needed to validate the individual objective test cases is supplied by common data sources, the burden on the simulation data providers can
Finally, as mentioned previously in this document, the FAA believes that a large portion of industry looks favorably on international alignment and has demonstrated a willingness to adopt such standards in the past. Since the publication of ICAO 9625, Edition 3, in 2009, the FAA has received numerous inquiries and requests from many sectors of the industry (including air carriers, trade associations, FSTD manufacturers, and FSTD data providers) requesting the adoption of this updated document. Prior to this rulemaking, previous versions of the FAA and European FSTD evaluation standards were developed and aligned with previous versions of the ICAO 9625 document. This included the FAA's (draft) AC 120-40C which was aligned with the ICAO 9625, Edition 1, document as well as the existing (2008) part 60 standard, which was aligned with the ICAO 9625, Edition 2, document. Further demonstrating industry's desire to maintain alignment with the latest international FSTD evaluation standards, during the time period between 1995 and 2010 before the initial part 60 rule became effective, industry requested and the FAA qualified over 250 FSTDs using more stringent internationally aligned FSTD evaluation standards on a completely voluntary basis.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.
In conducting these analyses, the FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
The table below summarizes the estimated costs and benefits of this proposal.
Within each of the estimates we estimated three separate sets of costs, and later in the document provide separate benefit bases. These three sets include:
Assumptions:
A. Estimates are in 2012 $.
B. The estimated number of previously qualified FSTDs that will potentially be affected by the rule (335) includes all FSTDs that are capable of providing training for part 121 operations and as such are likely to be an overestimate of the number of FSTDs that will be affected by this rule, as some devices may not be used for the training.
C. As in the NPRM Regulatory Impact Analysis for newly qualified FSTDs, we expect minimal incremental cost to meet the standards for the new tasks in the Crewmember and Aircraft Dispatcher Training final rule and the standards for icing.
Sponsors of flight simulation training devices.
The FAA made two major changes in the final rule that might be cost relieving, although the FAA did not include these cost savings in the estimated costs.
A. Removal of audio/video record and playback capability requirement;
B. Removal/adjustment of the visual system field of view (FOV) and the transport delay requirements.
The FAA has also revised its cost estimates for the final rule to include additional information gathered from air carriers, FSTD manufacturers, and data providers to better estimate the cost of this rule. One aircraft OEM simulator data provider has indicated that the estimated cost of an enhanced stall model would be in the area of $25,000 per FSTD. Furthermore, this data provider stated that in order to support the installation of an enhanced stall model, FSTDs running certain versions of their data package would need to be brought up to the latest revision or blockpoint before this installation can take place. The FAA also obtained a cost estimate from a third party provider to implement its model on FSTDs. As a result of this additional information and data and comments received, the FAA has updated its cost estimates for the final rule. Details on the analysis can be found in the Regulatory Impact Analysis accompanying this final rule.
The table below shows the estimates derived during the NPRM phase, and the final rule updated cost estimate from data obtained after NPRM publication. The table indicates the three separate sets of costs incurred over a ten year period.
The best way to understand the benefits of this final rule is to view them in conjunction with the new Crewmember and Aircraft Dispatcher Training final rule. In that rule, the cost/benefit analysis assumed that the new extended envelope training tasks would be conducted in a FSTD capable of producing the flight characteristics of an aircraft in a stall or upset condition. The Crewmember and Aircraft Dispatcher Training final rule estimated a $500 hourly FSTD rental rate that included all modifications expected to be required by this final rule. Alternative sensitivity analyses used $550 and $600 hourly FSTD rates to reflect the possibility of additional costs for the modifications. The costs generated by either hourly rate were justified and captured by the benefits of that rule.
This final rule takes the next step to develop qualification standards for updating these FSTDs to ensure the extended envelope training provided is conducted in a realistic, accurate training environment. These modifications require FSTD owners
The part 60 standards and FSTD modification expense supporting the new training is $72.7 million ($63.6 million in present value at 7 percent) and has been fully justified by the new Crewmember and Aircraft Dispatcher Training final rule.
The second area for benefits is for the icing update. Although this update is not in response to a new training requirement, it will enhance existing training requirements for operations involving anti-icing/de-icing equipment and further address NTSB,
Lastly, we have not quantified benefits of aligning part 60 qualification standards with ICAO guidance, but we expect aligned FSTD standards to contribute to improved safety as they are developed by a broad coalition of experts with a combined pool of knowledge and experience. The FAA expects more realistic training to result from these changes. The changes are expected to improve overall FSTD fidelity by enhancing the evaluation standards for visual display resolution, system transport delay, sound direction, and motion cueing.
Furthermore, internationally aligned FSTD standards for FSTD sponsors can reduce the redundant testing and documentation that are required to meet multiple national regulations and standards for FSTD qualification, potentially resulting in cost savings.
The addition of the Level 7 FTD through the ICAO alignment will provide training providers with more options that do not exist today to conduct training at lower cost. If the sponsor chooses to qualify a level 7 FTD, it is because they expect the benefits to exceed the costs. We have not quantified these costs and benefits.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. The FAA made such a certification for the initial regulatory flexibility analysis, received no comments, and provides the factual basis below for such a determination in this final regulatory flexibility analysis.
Only FSTD sponsors are affected by this rule. FSTD sponsors are air carriers that own FSTDs to train their pilots or training centers that own FSTDs and sell FSTD training time. To identify FSTD sponsors that could be affected retroactively by the FSTD directive,
To determine which of the 29 organizations listed in the previous table are small entities, the FAA consulted the U.S. Small Business Administration Table of Small Business Size Standards Matched to North American Industry Classification System Codes.
The economic impact of this rule applies differently to previously qualified FSTD sponsors than it would to newly qualified FSTD sponsors. Below is a summary of the two separate analyses performed. One determines the impact of the final rule on small entities that will have to update their previously qualified devices and the other analysis determines the impact on those that would have to purchase a newly qualified device.
Five of the eight small entities are training providers. They are expected to offer this new required training as there would be increased demand for training time in their FSTDs because in addition to current requirements for training, all part 121 PICs and SICs must have two hours of additional training in the first year and additional training time in the future. The FAA found that costs that will be incurred by these small entities in order to train pilots in the tasks required by the new training rule, range from $122,300 to $335,842
Three of the companies identified as small businesses are part 121 air carriers. They have to comply with the Crewmember and Aircraft Dispatcher Training final rule by training their pilots in FSTDs that meet the standards of this part 60 rule. The additional pilot training cost in a modified FSTD was accounted for and justified in that training final rule. This part 60 rule simply specifies how the FSTDs need to be modified such that the new training will be in compliance with the Crewmember and Aircraft Dispatcher Training final rule. These part 121 operators have two options. They can purchase training time for their pilots at a qualified training center. Alternatively they could choose to comply with the FSTD Directive by modifying their own FSTDs to train their pilots for the new training tasks. For these operators who already own FSTDs, the cost of complying with the FSTD Directive is estimated to be less than the cost of renting time at a training center to comply with the new requirements. Therefore, we expect that they will choose to modify their devices because it will be less costly to offer training in-house than to send pilots out to training centers. The cost to train pilots in the tasks required by the training rule is a cost of the training rule and not this rule. Thus, the rule will not impose a significant economic impact on these companies, because by modifying their FSTDs these operators will lower their costs.
An estimated 50 of the FSTDs (15 percent) may require additional modifications to comply with the icing requirements of the final rule. We do not know how many are small businesses however the estimated cost of these additional icing modifications ($25,000) are less than 0.3 percent of the estimated $10 million cost of a FSTD, which is not a significant impact.
It is unknown how many sponsors of newly qualified FSTDs in the future may qualify as small entities, but we expect it will be a substantial number as it could include some or all of the eight identified above. The FAA expects the final rule requirements that address the new training tasks and modify the icing FSTD requirements to be included in future training packages, the revenues obtained from training will exceed the costs, and the cost will be minimal for a newly qualified FSTD. The requirement to align with ICAO guidance however, will result in some cost. The FAA does not know who in the future will be purchasing and qualifying FSTDs after the rule becomes effective. The FAA estimates that the incremental cost per newly qualified FSTD will be approximately $33,000. This is less than 0.5 percent of the cost of a new FSTD, which generally costs $10 million or more. Therefore we do not believe the final rule will have a significant economic impact on a substantial number of small entities that purchase newly qualified FSTDs after the rule is in effect.
Thus this final rule is expected to impact a substantial number of small entities, but not impose a significant negative economic impact. We made a similar determination in the initial regulatory flexibility analysis and received no comments. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that the rule will provide improved safety training and will use international standards as its basis and does not create unnecessary obstacles to the foreign commerce of the United States, and the purpose of this rule is the protection of safety.
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.
This final rule will impose the following amended information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for this information collection will be published in a future
Additionally, the FAA added deviation authority to § 60.15(c)(5) in the final rule to allow for an FSTD sponsor to deviate from the technical requirements in the part 60 QPS. For FSTD sponsors requesting such a deviation, this will impose a small amount of additional information collection burden.
For FSTD sponsors requesting a deviation as described in § 60.15(c)(5), the information collection will be used to evaluate and track the approval of deviations to support the initial evaluation of FSTDs.
The one-time information collection burden to the Federal government is estimated at approximately 0.6 hours per FSTD for each qualified task to include Aerospace Engineer review and preparation of an FAA response.
Because the number of objective tests required to maintain FSTD qualification would increase slightly with this proposal, the annual information collection burden would also increase under the FSTD inspection and maintenance requirements of § 60.19. This additional information collection burden is estimated by increasing the average number of required objective tests for Level C and Level D FFSs by four tests.
For new FSTDs qualified after the proposal becomes effective, the changes to the QPS appendices proposed to align with ICAO 9625 as well as the new requirements for the evaluation of stall and icing training maneuvers would result in an estimated average increase of four objective tests
The total additional information collection burden for FSTD sponsors as a result of this final rule is summarized in the following tables:
The total additional information collection burden for the Federal government as a result of this final rule is summarized in the following tables:
Additionally, as a result of public comments filed in response to the NPRM for this rule, the FAA added deviation authority to § 60.15(c)(5). The primary purpose for including this deviation authority is to allow for FSTD sponsors to initially qualify a new FSTD using internationally recognized FSTD evaluation standards, including those issued by the ICAO or another national aviation authority. This will improve international harmonization of FSTD evaluation standards as well as reduce redundant FSTD qualification documentation in instances where an FSTD is qualified by multiple national aviation authorities or evaluated under a bilateral agreement. Because an FSTD sponsor will have to submit a request to the FAA for the approval of a deviation, there will be an information collection burden for those FSTD sponsors or manufacturers that choose to request deviation authority. Since such deviations will generally be applicable only to those FSTDs that are undergoing an initial evaluation, and the total number of initial FSTD evaluations the FAA conducts averages around 50 per year, the burden for this information collection is expected to be very small. Furthermore, it is expected that most of these deviations will be submitted by FSTD manufacturers for the initial evaluation of multiple FSTDs as provisioned for in the deviation authority section of the final rule. As a result, the number of deviation requests received by the FAA will be mainly limited to a few FSTD manufacturers and will be result in a negligible information collection burden.
(1) In keeping with United States (U.S.) obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International
(2) Executive Order (EO) 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policy and agency responsibilities of Executive Order 13609, Promoting International Regulatory Cooperation. The agency has determined that this action would reduce differences between U.S. aviation standards and those of other civil aviation authorities by aligning the part 60 FSTD qualification standards with that of the latest international FSTD qualification guidance document (ICAO 9625) for equivalent FSTD levels.
(3) Harmonization. The FSTD evaluation standards that have been codified in this final rule were the result of numerous recommendations received from working groups that the FAA participated in on a collaborative basis. Many of these working groups had significant international presence from both industry and international regulatory authorities. Furthermore, much of the foundation of this final rule has been based upon the guidance material developed by the International Civil Aviation Organization which provides such material to promote international harmonization on aviation safety issues.
FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6.(f) and involves no extraordinary circumstances.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
An electronic copy of a rulemaking document my be obtained by using the Internet—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Printing Office's Web page at
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Comments received may be viewed by going to
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the
Air Carriers, Aircraft, Aviation safety, Reporting and recordkeeping requirements, Safety Transportation.
For the reasons set forth in the preamble, amend part 60 of title 14 of the Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 40113, and 44701; Pub. L. 111-216, 124 Stat. 2348 (49 U.S.C. 44701 note)
(c) * * *
(5) An FSTD sponsor or FSTD manufacturer may submit a request to the Administrator for approval of a deviation from the QPS requirements as defined in Appendix A through Appendix D of this part.
(i) Requests for deviation must be submitted in a form and manner acceptable to the Administrator and must provide sufficient justification that the deviation meets or exceeds the testing requirements and tolerances as specified in the part 60 QPS or will otherwise not adversely affect the fidelity and capability of the FSTDs evaluated and qualified under the deviation.
(ii) The Administrator may consider deviation from the minimum requirements tables, the objective testing tables, the functions and subjective testing tables, and other supporting tables and requirements in the part 60 QPS.
(iii) Deviations may be issued to an FSTD manufacturer for the initial qualification of multiple FSTDs, subject to terms and limitations as determined by Administrator. Approved deviations will become a part of the permanent qualification basis of the individual FSTD and will be noted in the FSTD's Statement of Qualification.
(iv) If the FAA publishes a change to the existing part 60 standards as
(e) The subjective tests that form the basis for the statements described in paragraph (b) of this section and the objective tests referenced in paragraph (f) of this section must be accomplished at the sponsor's training facility or other sponsor designated location where training will take place, except as provided for in the applicable QPS.
(g) * * *
(7) A statement referencing any deviations that have been granted and included in the permanent qualification basis of the FSTD.
(a) Unless otherwise specified by an FSTD Directive, further referenced in the applicable QPS, or as specified in paragraph (e) of this section, an FSTD qualified before May 31, 2016 will retain its qualification basis as long as it continues to meet the standards, including the objective test results recorded in the MQTG and subjective tests, under which it was originally evaluated, regardless of sponsor. The sponsor of such an FSTD must comply with the other applicable provisions of this part.
(b) * * *
(4) The frequency of NSPM-conducted continuing qualification evaluations for each FSTD will be established by the NSPM and specified in the Statement of Qualification.
(5) Continuing qualification evaluations conducted in the 3 calendar months before or after the calendar month in which these continuing qualification evaluations are required will be considered to have been conducted in the calendar month in which they were required.
(6) No sponsor may use or allow the use of or offer the use of an FSTD for flight crewmember training or evaluation or for obtaining flight experience for the flight crewmember to meet any requirement of this chapter unless the FSTD has passed an NSPM-conducted continuing qualification evaluation within the time frame specified in the Statement of Qualification or within the grace period as described in paragraph (b)(5) of this section.
(a) * * *
(2) Changes are made to either software or hardware that are intended to impact flight or ground dynamics; changes are made that impact performance or handling characteristics of the FSTD (including motion, visual, control loading, or sound systems for those FSTD levels requiring sound tests and measurements); or changes are made to the MQTG. Changes to the MQTG which do not affect required objective testing results or validation data approved during the initial evaluation of the FSTD are not considered modifications under this section.
The revisions read as follows:
b. Questions regarding the contents of this publication should be sent to the U.S. Department of Transportation, Federal Aviation Administration, Flight Standards Service, National Simulator Program Staff, AFS-205, P.O. Box 20636, Atlanta, Georgia, 30320. Telephone contact numbers for the NSP are: phone, 404-474-5620; fax, 404-474-5656. The NSP Internet Web site address is:
d. * * *
(22) International Air Transport Association document, “Flight Simulation Training Device Design and Performance Data Requirements,” as amended.
(25) International Civil Aviation Organization (ICAO) Manual of Criteria for the Qualification of Flight Simulation Training Devices, as amended.
(26) Aeroplane Flight Simulation Training Device Evaluation Handbook, Volume I, as amended and Volume II, as amended, The Royal Aeronautical Society, London, UK.
b. * * *
(2) Unless otherwise authorized through prior coordination with the NSPM, a confirmation that the sponsor will forward to the NSPM the statement described in § 60.15(b) in such time as to be received no later than 5 business days prior to the scheduled evaluation and may be forwarded to the NSPM via traditional or electronic means.
h. The sponsor may elect to complete the QTG objective and subjective tests at the manufacturer's facility or at the sponsor's training facility (or other sponsor designated location where training will take place). If the tests are conducted at the manufacturer's facility, the sponsor must repeat at least one-third of the tests at the sponsor's training facility in order to substantiate FFS performance. The QTG must be clearly annotated to indicate when and where each test was accomplished. Tests conducted at the manufacturer's facility and at the sponsor's designated training facility must be conducted after the FFS is assembled with systems and sub-systems functional and operating in an interactive manner. The test results must be submitted to the NSPM.
b. Simulators qualified prior to May 31, 2016, are not required to meet the general simulation requirements, the objective test requirements or the subjective test requirements of attachments 1, 2, and 3 of this appendix as long as the simulator continues to meet the test requirements contained in the MQTG developed under the original qualification basis.
d. Simulators qualified prior to May 31, 2016, may be updated. If an evaluation is deemed appropriate or necessary by the NSPM after such an update, the evaluation will not require an evaluation to standards
The revisions and additions read as follows:
The revisions read as follows:
2. * * *
e. It is not acceptable to program the FFS so that the mathematical modeling is correct only at the validation test points. Unless otherwise noted, simulator tests must represent airplane performance and handling qualities at operating weights and centers of gravity (CG) typical of normal operation. Simulator tests at extreme weight or CG conditions may be acceptable where required for concurrent aircraft certification testing. Tests of handling qualities must include validation of augmentation devices.
b. Motion System Checks. The intent of test 3a, Frequency Response, and test 3b, Turn-
d. Objective Motion Cueing Test—Frequency Domain
(1) Background. This test quantifies the response of the motion cueing system from the output of the flight model to the motion platform response. Other motion tests, such as the motion system frequency response, concentrate on the mechanical performance of the motion system hardware alone. The intent of this test is to provide quantitative frequency response records of the entire motion system for specified degree-of-freedom transfer relationships over a range of frequencies. This range should be representative of the manual control range for that particular aircraft type and the simulator as set up during qualification. The measurements of this test should include the combined influence of the motion cueing algorithm, the motion platform dynamics, and the transport delay associated with the motion cueing and control system implementation. Specified frequency responses describing the ability of the FSTD to reproduce aircraft translations and rotations, as well as the cross-coupling relations, are required as part of these measurements. When simulating forward aircraft acceleration, the simulator is accelerated momentarily in the forward direction to provide the onset cueing. This is considered the direct transfer relation. The simulator is simultaneously tilted nose-up due to the low-pass filter in order to generate a sustained specific force. The tilt associated with the generation of the sustained specific force, and the angular rates and angular accelerations associated with the initiation of the sustained specific force, are considered cross-coupling relations. The specific force is required for the perception of the aircraft sustained specific force, while the angular rates and accelerations do not occur in the aircraft and should be minimized.
(2) Frequency response test. This test requires the frequency response to be measured for the motion cueing system. Reference sinusoidal signals are inserted at the pilot reference position prior to the motion cueing computations. The response of the motion platform in the corresponding degree-of-freedom (the direct transfer relations), as well as the motions resulting from cross-coupling (the cross-coupling relations), are recorded. These are the tests that are important to pilot motion cueing and are general tests applicable to all types of airplanes.
(3) This test is only required to be run once for the initial qualification of the FSTD and will not be required for continuing qualification purposes. The FAA will accept test results provided by the FSTD manufacturer as part of a Statement of Compliance confirming that the objective motion cueing tests were used to assist in the tuning of the FSTD's motion cueing algorithms.
a. * * *
(1) If engineering simulator data or other non-flight-test data are used as an allowable form of reference validation data for the objective tests listed in Table A2A of this attachment, the data provider must supply a well-documented mathematical model and testing procedure that enables a replication of the engineering simulation results within 40% of the corresponding flight test tolerances.
b. * * *
(5) The tolerance limit between the reference data and the flight simulator results is generally 40 percent of the corresponding `flight-test' tolerances. However, there may be cases where the simulator models used are of higher fidelity, or the manner in which they are cascaded in the integrated testing loop have the effect of a higher fidelity, than those supplied by the data provider. Under these circumstances, it is possible that an error greater than 40 percent may be generated. An error greater than 40 percent may be acceptable if simulator sponsor can provide an adequate explanation.
a. Airplane manufacturers or other data suppliers should supply a validation data roadmap (VDR) document as part of the data package. A VDR document contains guidance material from the airplane validation data supplier recommending the best possible sources of data to be used as validation data in the QTG. A VDR is of special value when requesting interim qualification, qualification of simulators for airplanes certificated prior to 1992, and qualification of alternate engine or avionics fits. A sponsor seeking to have a device qualified in accordance with the standards contained in this QPS appendix should submit a VDR to the NSPM as early as possible in the planning stages. The NSPM is the final authority to approve the data to be used as validation material for the QTG.
The revisions read as follows:
FSTD Directive 2. Applicable to all airplane Full Flight Simulators (FFS), regardless of the original qualification basis and qualification date (original or upgrade), used to conduct full stall training, upset recovery training, airborne icing training, and other flight training tasks as described in this Directive.
Agency: Federal Aviation Administration (FAA), DOT.
Action: This is a retroactive requirement for any FSTD being used to obtain training, testing, or checking credit in an FAA approved flight training program for the specific training maneuvers as defined in this Directive.
Summary: Notwithstanding the authorization listed in paragraph 13b in Appendix A of this Part, this FSTD Directive requires that each FSTD sponsor conduct additional subjective and objective testing, conduct required modifications, and apply for additional FSTD qualification under § 60.16 to support continued qualification of the following flight training tasks where training, testing, or checking credit is being sought in a selected FSTD being used in an FAA approved flight training program:
Dates: FSTD Directive No. 2 becomes effective on May 31, 2016.
For Further Information Contact: Larry McDonald, Air Transportation Division/National Simulator Program Branch, AFS-205, Federal Aviation Administration, P.O. Box 20636, Atlanta, GA 30320; telephone (404) 474-5620; email
1. Part 60 requires that each FSTD be:
a. Sponsored by a person holding or applying for an FAA operating certificate under Part 119, Part 141, or Part 142, or holding or applying for an FAA-approved training program under Part 63, Appendix C, for flight engineers, and
b. Evaluated and issued a Statement of Qualification (SOQ) for a specific FSTD level.
2. The evaluation criteria contained in this Directive is intended to address specific training tasks that require additional evaluation to ensure adequate FSTD fidelity.
3. The requirements described in this Directive define additional qualification criteria for specific training tasks that are applicable only to those FSTDs that will be utilized to obtain training, testing, or checking credit in an FAA approved flight training program. In order to obtain additional qualification for the tasks described in this Directive, FSTD sponsors must request additional qualification in accordance with § 60.16 and the requirements of this Directive. FSTDs that are found to meet the requirements of this Directive will have their Statement of Qualification (SOQ) amended to reflect the additional training tasks that the FSTD has been qualified to conduct. The additional qualification requirements as defined in this Directive are divided into the following training tasks:
4. A copy of this Directive (along with all required Statements of Compliance and objective test results) must be filed in the MQTG in the designated FSTD Directive Section, and its inclusion must be annotated on the Index of Effective FSTD Directives chart. See Attachment 4, Appendix A for a sample MQTG Index of Effective FSTD Directives chart.
1. This section applies to previously qualified Level C and Level D FSTDs being used to obtain credit for stall training maneuvers beyond the first indication of a stall (such as stall warning system activation, stick shaker, etc.) in an FAA approved training program.
2. The evaluation requirements in this Directive are intended to validate FSTD fidelity at angles of attack sufficient to identify the stall, to demonstrate aircraft performance degradation in the stall, and to demonstrate recovery techniques from a fully stalled flight condition.
3. After March 12, 2019, any FSTD being used to obtain credit for full stall training maneuvers in an FAA approved training program must be evaluated and issued additional qualification in accordance with this Directive and the following sections of Appendix A of this Part:
4. For FSTDs initially qualified before May 31, 2016, including FSTDs that are initially qualified under the grace period conditions as defined in § 60.15(c):
5. Where qualification is being sought to conduct full stall training tasks in accordance with this Directive, the FSTD Sponsor must conduct the required evaluations and modifications as prescribed in this Directive and report compliance to the NSPM in accordance with § 60.23 using the NSP's standardized FSTD Sponsor Notification Form. At a minimum, this form must be accompanied with the following information:
6. The NSPM will review each submission to determine if the requirements of this Directive have been met and respond to the FSTD Sponsor as described in § 60.23(c). Additional NSPM conducted FSTD evaluations may be required before the modified FSTD is placed into service. This response, along with any noted restrictions, will serve as interim qualification for full stall training tasks until such time that a permanent change is made to the Statement of Qualification (SOQ) at the FSTD's next scheduled evaluation.
1. This section applies to previously qualified FSTDs being used to obtain training, testing, or checking credits for upset prevention and recovery training tasks (UPRT) as defined in Appendix A, Table A1A, Section 2.n. of this part. Additionally, FSTDs being used for unusual attitude training maneuvers that are intended to exceed the parameters of an aircraft upset must also be evaluated and qualified for UPRT under this section. These parameters include pitch attitudes greater than 25 degrees nose up; pitch attitudes greater than 10 degrees nose down, and bank angles greater than 45 degrees.
2. The requirements contained in this section are intended to define minimum standards for evaluating an FSTD for use in upset prevention and recovery training maneuvers that may exceed an aircraft's normal flight envelope. These standards include the evaluation of qualified training maneuvers against the FSTD's validation envelope and providing the instructor with minimum feedback tools for the purpose of determining if a training maneuver is conducted within FSTD validation limits and the aircraft's operating limits.
3. This Directive contains additional subjective testing that exceeds the evaluation requirements of previously qualified FSTDs. Where aerodynamic modeling data or validation data is not available or insufficient to meet the requirements of this Directive, the NSPM may limit additional qualification to certain upset prevention and recovery maneuvers where adequate data exists.
4. After March 12, 2019, any FSTD being used to obtain training, testing, or checking credit for upset prevention and recovery training tasks in an FAA approved flight training program must be evaluated and issued additional qualification in accordance with this Directive and the following sections of Appendix A of this part:
5. Where qualification is being sought to conduct upset prevention and recovery training tasks in accordance with this Directive, the FSTD Sponsor must conduct the required evaluations and modifications as prescribed in this Directive and report compliance to the NSPM in accordance with § 60.23 using the NSP's standardized FSTD Sponsor Notification Form. At a minimum, this form must be accompanied with the following information:
6. The NSPM will review each submission to determine if the requirements of this Directive have been met and respond to the FSTD Sponsor as described in § 60.23(c). Additional NSPM conducted FSTD evaluations may be required before the modified FSTD is placed into service. This response, along with any noted restrictions, will serve as an interim qualification for upset prevention and recovery training tasks until such time that a permanent change is made to the Statement of Qualification (SOQ) at the FSTD's next scheduled evaluation.
1. This section applies to previously qualified Level C and Level D FSTDs being used to obtain training, testing, or checking credits in maneuvers that demonstrate the effects of engine and airframe ice accretion.
2. The requirements in this section are intended to supersede and improve upon existing Level C and Level D FSTD evaluation requirements on the effects of engine and airframe icing. The requirements define a minimum level of fidelity required to adequately simulate the aircraft specific aerodynamic characteristics of an in-flight encounter with engine and airframe ice accretion as necessary to accomplish training objectives.
3. This Directive contains additional subjective testing that exceeds the evaluation requirements of previously qualified FSTDs. Where aerodynamic modeling data is not available or insufficient to meet the requirements of this Directive, the NSPM may limit qualified engine and airframe icing maneuvers where sufficient aerodynamic modeling data exists.
4. After March 12, 2019, any FSTD being used to conduct training tasks that demonstrate the effects of engine and airframe icing must be evaluated and issued additional qualification in accordance with this Directive and the following sections of Appendix A of this part:
5. Where continued qualification is being sought to conduct engine and airframe icing training tasks in accordance with this Directive, the FSTD Sponsor must conduct the required evaluations and modifications as prescribed in this Directive and report compliance to the NSPM in accordance with § 60.23 using the NSP's standardized FSTD Sponsor Notification Form. At a minimum, this form must be accompanied with the following information:
6. The NSPM will review each submission to determine if the requirements of this Directive have been met and respond to the FSTD Sponsor as described in § 60.23(c). Additional NSPM conducted FSTD evaluations may be required before the modified FSTD is placed into service. This response, along with any noted restrictions, will serve as an interim update to the FSTD's Statement of Qualification (SOQ) until such time that a permanent change is made to the SOQ at the FSTD's next scheduled evaluation.
1. This section applies to previously qualified FSTDs that will be used to obtain training, testing, or checking credits in takeoff and landing tasks in gusting crosswinds as part of an FAA approved training program. The requirements of this Directive are applicable only to those Level B and higher FSTDs that are qualified to conduct takeoff and landing training tasks.
2. The requirements in this section introduce new minimum simulator requirements for gusting crosswinds during takeoff and landing training tasks as well as additional subjective testing that exceeds the evaluation requirements of previously qualified FSTDs.
3. After March 12, 2019, any FSTD that is used to conduct gusting crosswind takeoff and landing training tasks must be evaluated and issued additional qualification in accordance with this Directive and the following sections of Appendix A of this part:
4. Where qualification is being sought to conduct gusting crosswind training tasks in accordance with this Directive, the FSTD Sponsor must conduct the required evaluations and modifications as prescribed in this Directive and report compliance to the NSPM in accordance with § 60.23 using the NSP's standardized FSTD Sponsor Notification Form. At a minimum, this form must be accompanied with the following information:
5. The NSPM will review each submission to determine if the requirements of this Directive have been met and respond to the FSTD Sponsor as described in § 60.23(c). Additional NSPM conducted FSTD evaluations may be required before the modified FSTD is placed into service. This response, along with any noted restrictions, will serve as an interim qualification for gusting crosswind training tasks until such time that a permanent change is made to the Statement of Qualification (SOQ) at the FSTD's next scheduled evaluation.
1. This section applies to previously qualified FSTDs that will be used to obtain training, testing, or checking credits in bounced landing recovery as part of an FAA approved training program. The requirements of this Directive are applicable only to those Level B and higher FSTDs that are qualified to conduct takeoff and landing training tasks.
2. The evaluation requirements in this section are intended to introduce new evaluation requirements for bounced landing recovery training tasks and contains additional subjective testing that exceeds the evaluation requirements of previously qualified FSTDs.
3. After March 12, 2019, any FSTD that is used to conduct bounced landing training tasks must be evaluated and issued additional qualification in accordance with this Directive and the following sections of Appendix A of this Part:
4. Where qualification is being sought to conduct bounced landing training tasks in accordance with this Directive, the FSTD Sponsor must conduct the required evaluations and modifications as prescribed in this Directive and report compliance to the NSPM in accordance with § 60.23 using the NSP's standardized FSTD Sponsor Notification Form. At a minimum, this form must be accompanied with the following information:
5. The NSPM will review each submission to determine if the requirements of this Directive have been met and respond to the FSTD Sponsor as described in § 60.23(c). Additional NSPM conducted FSTD evaluations may be required before the modified FSTD is placed into service. This response, along with any noted restrictions, will serve as an interim qualification for bounced landing recovery training tasks until such time that a permanent change is made to the Statement of Qualification (SOQ) at the FSTD's next scheduled evaluation.
1. Applicability: This attachment applies to all simulators that are used to satisfy training requirements for stall maneuvers that are conducted at angles of attack beyond the activation of the stall warning system. This attachment is not applicable for those FSTDs that are only qualified for approach to stall maneuvers where recovery is initiated at the first indication of the stall. The material in this section is intended to supplement the general requirements, objective testing requirements, and subjective testing requirements contained within Tables A1A, A2A, and A3A, respectively.
2. General Requirements: The requirements for high angle of attack modeling are intended to evaluate the recognition cues and performance and handling qualities of a developing stall through the stall identification angle-of-attack and recovery. Strict time-history-based evaluations against flight test data may not adequately validate the aerodynamic model in an unsteady and potentially unstable flight regime, such as stalled flight. As a result, the objective testing requirements defined in Table A2A do not prescribe strict tolerances on any parameter at angles of attack beyond the stall identification angle of attack. In lieu of mandating such objective tolerances, a Statement of Compliance (SOC) will be required to define the source data and methods used to develop the stall aerodynamic model.
3. Fidelity Requirements: The requirements defined for the evaluation of full stall training maneuvers are intended to provide the following levels of fidelity:
4. Statement of Compliance (Aerodynamic Model): At a minimum, the following must be addressed in the SOC:
5. Statement of Compliance (Subject Matter Expert Pilot Evaluation): The sponsor must provide an SOC that confirms the FSTD has been subjectively evaluated by a subject matter expert (SME) pilot who is knowledgeable of the aircraft's stall characteristics. In order to qualify as an acceptable SME to evaluate the FSTD's stall characteristics, the SME must meet the following requirements:
An FSTD sponsor may submit a request to the Administrator for approval of a deviation from the SME pilot experience requirements in this paragraph. This request for deviation must include the following information:
1. Applicability: This attachment applies to all simulators that are used to satisfy training requirements for upset prevention and recovery training (UPRT) maneuvers. For the purposes of this attachment (as defined in the Airplane Upset Recovery Training Aid), an aircraft upset is generally defined as an airplane unintentionally exceeding the following parameters normally experienced in line operations or training:
2. General Requirements: The general requirement for UPRT qualification in Table A1A defines three basic elements required for qualifying an FSTD for UPRT maneuvers:
3. FSTD Validation Envelope: For the purposes of this attachment, the term “flight envelope” refers to the entire domain in which the FSTD is capable of being flown with a degree of confidence that the FSTD responds similarly to the airplane. This envelope can be further divided into three subdivisions (see Appendix 3-D of the
4. Instructor Feedback Mechanism: For the instructor/evaluator to provide feedback to the student during UPRT maneuver training, additional information must be accessible that indicates the fidelity of the simulation, the magnitude of trainee's flight control inputs, and aircraft operational limits that could potentially affect the successful completion of the maneuver(s). At a minimum, the following must be available to the instructor/evaluator:
An example FSTD “alpha/beta” envelope display and IOS feedback mechanism are shown below in Figure 1 and Figure 2. The following examples are provided as guidance material on one possible method to display the required UPRT feedback parameters on an IOS display. FSTD sponsors may develop other methods and feedback mechanisms that provide the required parameters and support the training program objectives.
1. Applicability: This section applies to all FSTDs that are used to satisfy training requirements for engine and airframe icing. New general requirements and objective requirements for simulator qualification have been developed to define aircraft specific icing models that support training objectives for the recognition and recovery from an in-flight ice accretion event.
2. General Requirements: The qualification of engine and airframe icing consists of the following elements that must be considered when developing ice accretion models for use in training:
a. Ice accretion models must be developed to account for training the specific skills required for recognition of ice accumulation and execution of the required response.
b. Ice accretion models must be developed in a manner to contain aircraft specific recognition cues as determined with aircraft OEM supplied data or other suitable analytical methods.
c. At least one qualified ice accretion model must be objectively tested to demonstrate that the model has been implemented correctly and generates the correct cues as necessary for training.
3. Statement of Compliance: The SOC as described in Table A1A, Section 2.j. must contain the following information to support FSTD qualification of aircraft specific ice accretion models:
a. A description of expected aircraft specific recognition cues and degradation effects due to a typical in-flight icing encounter. Typical cues may include loss of lift, decrease in stall angle of attack, changes in pitching moment, decrease in control effectiveness, and changes in control forces in addition to any overall increase in drag. This description must be based upon relevant source data, such as aircraft OEM supplied data, accident/incident data, or other acceptable data sources. Where a particular airframe has demonstrated vulnerabilities to a specific type of ice accretion (due to accident/incident history) which requires specific training (such as supercooled large-droplet icing or tailplane icing), ice accretion models must be developed that address the training requirements.
b. A description of the data sources utilized to develop the qualified ice accretion models. Acceptable data sources may be, but are not limited to, flight test data, aircraft certification data, aircraft OEM engineering simulation data, or other analytical methods based upon established engineering principles.
4. Objective Demonstration Testing: The purpose of the objective demonstration test is to demonstrate that the ice accretion models as described in the Statement of Compliance have been implemented correctly and demonstrate the proper cues and effects as defined in the approved data sources. At least one ice accretion model must be selected for testing and included in the Master Qualification Test Guide (MQTG). Two tests are required to demonstrate engine and airframe icing effects. One test will demonstrate the FSTDs baseline performance without icing, and the second test will demonstrate the aerodynamic effects of ice accretion relative to the baseline test.
a.
b.
13. Amend Appendix B by:
The revisions and addition read as follows:
b. Questions regarding the contents of this publication should be sent to the U.S. Department of Transportation, Federal Aviation Administration, Flight Standards Service, National Simulator Program Staff, AFS-205, P.O. Box 20636, Atlanta, Georgia 30320. Telephone contact numbers for the NSP are: Phone, 404-474-5620; fax, 404-474-5656. The NSP Internet Web site address is:
d. * * *
(21) International Air Transport Association document, “Flight Simulation Training Device Design and Performance Data Requirements,” as amended.
(24) International Civil Aviation Organization (ICAO) Manual of Criteria for the Qualification of Flight Simulation Training Devices, as amended.
(25) Aeroplane Flight Simulation Training Device Evaluation Handbook, Volume I, as amended and Volume II, as amended, The Royal Aeronautical Society, London, UK.
b. * * *
(2) Unless otherwise authorized through prior coordination with the NSPM, a confirmation that the sponsor will forward to the NSPM the statement described in § 60.15(b) in such time as to be received no later than 5 business days prior to the scheduled evaluation and may be forwarded to the NSPM via traditional or electronic means.
h. The sponsor may elect to complete the QTG objective and subjective tests at the manufacturer's facility or at the sponsor's training facility (or other sponsor designated location where training will take place). If the tests are conducted at the manufacturer's facility, the sponsor must repeat at least one-third of the tests at the sponsor's training facility in order to substantiate FTD performance. The QTG must be clearly annotated to indicate when and where each test was accomplished. Tests conducted at the manufacturer's facility and at the sponsor's designated training facility must be conducted after the FTD is assembled with systems and sub-systems functional and operating in an interactive manner. The test results must be submitted to the NSPM.
b. FTDs qualified prior to May 31, 2016, and replacement FTD systems, are not required to meet the general FTD requirements, the objective test requirements, and the subjective test requirements of Attachments 1, 2, and 3 of this appendix as long as the FTD continues to meet the test requirements contained in the MQTG developed under the original qualification basis.
d. FTDs qualified prior to May 31, 2016, may be updated. If an evaluation is deemed appropriate or necessary by the NSPM after such an update, the evaluation will not require an evaluation to standards beyond those against which the FTD was originally qualified.
a. * * *
(4) Level 7. A Level 7 device is one that has an enclosed airplane-specific flight deck and aerodynamic program with all applicable airplane systems operating and control loading that is representative of the simulated airplane throughout its ground and flight envelope and significant sound representation. All displays may be flat/LCD panel representations or actual representations of displays in the aircraft, but all controls, switches, and knobs must physically replicate the aircraft in control operation. It also has a visual system that provides an out-of-the-flight deck view, providing cross-flight deck viewing (for both pilots simultaneously) of a field-of-view of at least 180° horizontally and 40° vertically.
The revisions and additions read as follows:
2. * * *
e. It is not acceptable to program the FTD so that the mathematical modeling is correct only at the validation test points. Unless otherwise noted, FTD tests must represent airplane performance and handling qualities at operating weights and centers of gravity (CG) typical of normal operation. FTD tests at extreme weight or CG conditions may be acceptable where required for concurrent aircraft certification testing. Tests of handling qualities must include validation of augmentation devices.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule will address the application of certain requirements set forth in the Public Health Service Act, as amended by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, to coverage offered by Medicaid managed care organizations, Medicaid Alternative Benefit Plans, and Children's Health Insurance Programs.
These regulations are effective on May 31, 2016.
Because of the many terms to which we refer by acronym, abbreviation, or short form in this final rule, we are listing the acronyms, abbreviation, and short forms used and their corresponding terms in alphabetical order below:
This final rule addresses the application to Medicaid and the Children's Health Insurance Program (CHIP) of certain mental health parity requirements added to the Public Health Service Act (PHS Act) by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) (Pub. L. 110-343, enacted on October 3, 2008). Specifically, this final rule addresses the application of MHPAEA parity requirements to: (1) Medicaid managed care organizations (MCOs) as described in section 1903(m) of the Social Security Act (the Act); (2) Medicaid benchmark and benchmark-equivalent plans (referred to in this rule as Medicaid Alternative Benefit Plans (ABPs)) as described in section 1937 of the Act; and (3) Children's Health Insurance Program (CHIP) under title XXI of the Act.
Under section 1932(b)(8) of the Act, Medicaid MCOs are required to comply with the requirements of subpart 2 of part A of title XXVII of the PHS Act, to the same extent that those requirements apply to a health insurance issuer that offers group health insurance. Subpart 2 includes mental health parity requirements added by MHPAEA that are now found at section 2726 of the PHS Act (as renumbered; formerly section 2705 of the PHS Act).
Under section 1937(b)(6) of the Act, Medicaid ABPs that are not offered by an MCO and that provide both medical and surgical benefits and mental health or substance use disorder (MH/SUD) benefits are required to ensure that financial requirements and treatment limitations for such benefits comply with the mental health parity requirements of the PHS Act (renumbered section 2726(a) of the PHS Act), in the same manner as such requirements apply to a group health plan. The section 1937 provision applies only to ABPs that are not offered by MCOs; ABPs offered by MCOs are already required to comply with these requirements under section 1932(b)(8) of the Act.
Section 2103(c)(6) of the Act requires that state CHIP plans that provide both medical and surgical benefits and MH/SUD benefits shall ensure that financial requirements and treatment limitations for such benefits comply with mental
These final rules incorporate these requirements into our regulations.
On September 26, 1996, the Congress enacted the Mental Health Parity Act of 1996 (Pub. L. 104-204) (MHPA), which required parity in aggregate lifetime and annual dollar limits for mental health benefits and medical/surgical benefits. Those mental health parity provisions were codified in section 712 of ERISA, section 2726 of the PHS Act (renumbered under section 1001 of the Affordable Care Act), and section 9812 of the Code, and applied to employment-related group health plans and health insurance coverage offered in connection with a group health plan. The Balanced Budget Act of 1997 (Pub. L. 105-33, enacted on August 5, 1997) (BBA) added sections 1932(b)(8) and 2103(f)(2) of the Act to generally apply certain aspects of MHPA, including the provisions of section 2726 of the PHS Act, to Medicaid MCOs and CHIP benefits.
MHPAEA was enacted as sections 511 and 512 of the Tax Extenders and Alternative Minimum Tax Relief Act of 2008 (Division C of Pub. L. 110-343) (the 2008 Extenders Act). MHPAEA amended the Employee Retirement Income Security Act of 1974 (ERISA), the PHS Act, and the Internal Revenue Code of 1986 (the Code). The changes made by MHPAEA consist of new standards, including parity for coverage of substance use disorder benefits, as well as amendments to the existing mental health parity provisions enacted in MHPA.
In 2009, section 502 of the Children's Health Insurance Program Reauthorization Act of 2009 (Pub. L. 111-3) (CHIPRA) amended section 2103(c) of the Act by adding paragraph (6), which requires that CHIP plans that provide both medical and surgical benefits and MH/SUD benefits comply with the provisions of section 2705(a) of the PHS Act, as amended by MHPAEA, in the same manner as a group health plan.
The Patient Protection and Affordable Care Act (Pub. L. 111-148) was enacted on March 23, 2010 and the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) was enacted on March 30, 2010 (collectively referred to as the “Affordable Care Act”). Section 1001 of the Affordable Care Act reorganized and renumbered certain provisions of the PHS Act, including renumbering section 2705 of the PHS Act as section 2726 of the PHS Act. The Affordable Care Act did not make conforming changes to cross-references to the renumbered provisions; instead, it contained new cross-references to the former section numbers. However, there was no indication that Congress intended to alter the meaning of the existing cross-references. As a result, we read the cross-references to continue to refer to the same section originally referenced, as renumbered. We believe it is clear that the new cross-references were also intended to refer to the renumbered provisions.
The Affordable Care Act expanded the application of section 2705(a) of the PHS Act, as amended by MHPAEA, and renumbered as section 2726(a) of the PHS Act, to benefits in Medicaid ABPs delivered outside of a MCO. ABPs delivered through an MCO would already have to comply with these requirements under section 1932(b)(8) of the Act. Also, section 2001(c) of the Affordable Care Act modified the benefit provisions of section 1937 of the Act. Specifically, section 2001(c) of the Affordable Care Act added mental health benefits and prescription drug coverage to the list of benefits that must be included in benchmark-equivalent coverage; required the inclusion of essential health benefits (EHBs) beginning in 2014; and directed that plans described in section 1937 of the Act (now known as ABPs) that include medical/surgical benefits and MH/SUD benefits ensure that the financial requirements and treatment limitations applicable to such MH/SUD benefits comply with the mental health parity provisions of the PHS Act.
The Departments of Health and Human Services (HHS), Labor, and the Treasury (collectively the Departments) published interim final regulations implementing MHPAEA on February 2, 2010 (75 FR 5410), and final regulations applicable to group health plans and health insurance issuers on November 13, 2013 (78 FR 68240) (MHPAEA final regulations).
In 2013, we released a State Health Official (SHO) letter that provided guidance to states regarding the implementation of requirements under MHPAEA to Medicaid benchmark and benchmark-equivalent plans (referred to in the letter as ABPs) as described in section 1937 of the Act, CHIP under title XXI of the Act, and MCOs as described in section 1903(m) of the Act.
In April 2015, we published a proposed rule on the Medicaid and Children's Health Insurance Programs; Mental Health Parity and Addiction Equity Act of 2008; the Application of Mental Health Parity Requirements to Coverage Offered by Medicaid Managed Care Organizations, the Children's Health Insurance Program (CHIP), and ABPs (80 FR 19418-19452). In this rule, we are finalizing regulations to address how the MHPAEA requirements in section 2726 of the PHS Act, as implemented in the MHPAEA final regulations, apply to MCOs, ABPs, and CHIP. For a more detailed description of the proposed provisions, please refer to the proposed rule (80 FR 19418).
We received a total of 158 comments from state agencies, advocacy groups, health care providers, health insurers, health care associations, and the general public. The comments ranged from general support or opposition (to various provisions in the proposed rule) to very specific questions or comments regarding the proposed changes. After consideration of the comments and feedback received from stakeholders, we are adopting these final regulations. The following are brief summaries of each proposed provision, a summary of public comments received, and our responses to the comments. Comments related to the paperwork burden and the impact analyses are addressed in the “Collection of Information
The provisions of this final rule generally mirror the policies set forth in the MHPAEA final regulations to implement the statutory provisions that require MCOs, ABPs and CHIP to comply with certain requirements of section 2726 of the PHS Act (mental health parity requirements).
The following sections, arranged by subject area, include a summary of the public comments that we received, and our responses.
The definitions of terms in the proposed rule and in this final rule include most terms included in the MHPAEA final regulation at 45 CFR 146.136(a). The proposed rule modified or added several terms to reflect the terminology used in the Medicaid program and CHIP statutes, regulations or policies. Some terms that are not relevant to the Medicaid program or CHIP were not included in the proposed rule. There were also several proposed terms that modified, added or deleted language from those definitions in the MHPAEA final regulations. For example:
• We proposed to add the terms ABP and Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefits since these terms are unique to the Medicaid program.
• We proposed to add the definition of “essential health benefits”, since Medicaid benchmark and benchmark-equivalent plans (now also known as ABPs) must cover EHBs and MH/SUD services provided as an EHB must be compliant with parity.
• We proposed a different definition for the term “medical/surgical benefits,” to reflect that the state defines these benefits in the Medicaid and CHIP contexts. Under existing law, the state has the responsibility of identifying what is a covered benefit for Medicaid and CHIP; MCOs, PIHPs or PAHPs are responsible for providing the covered benefits identified by the state. This is different from the MHPAEA final regulations, where medical/surgical benefits are defined under the terms of the group health plan or health insurance coverage and in accordance with applicable federal or state law.
• We also proposed that the definitions of “medical/surgical benefits,” “mental health benefits,” and “substance use disorder benefits” would clearly exclude long term care services in the Medicaid and CHIP context. We stated that this clarification was consistent with the intent of the MHPAEA final regulations, given that the kinds of long term care services included in benefit packages for Medicaid and CHIP beneficiaries were not commonly provided in the commercial market as part of health benefits coverage. We sought comments on our proposal to exclude long term care services from the definitions of “medical/surgical benefits,” “mental health benefits,” and “substance use disorder benefits.”
However, a large majority of commenters opposed this approach, and recommended that the final rule apply parity protections to long term MH/SUD benefits. Commenters who opposed the proposed rule approach provided three general concerns. First, many commenters noted that Medicaid is the nation's largest provider of benefits coverage for individuals with MH/SUD conditions and the only benefits coverage for most disabled individuals with these conditions; these commenters stated that parity protections in Medicaid should be at least as strong as the rules governing the commercial market. The commenters also discussed the importance of access to long term care services for the effective treatment of many MH/SUD conditions, particularly within the populations served by Medicaid and CHIP programs.
Second, several commenters noted that commercial plans typically do cover some forms of long term care services for both MH/SUD and medical/surgical conditions, including skilled nursing, inpatient rehabilitation, and home health services. From this perspective, commenters stated that CMS is prohibited from excluding the application of parity to long term care services because section 1932(b)(8) of the Act requires Medicaid MCOs to comply with the requirements of MHPAEA “to the same extent that those requirements apply to a health insurance issuer that offers group health insurance.” Underlying this claim from commenters is the view that commercial insurers of group health plans would be obligated to meet parity requirements in connection with coverage of long term care services in order to comply with PHS Act section 2726. To the extent that Medicaid coverage does differ from the commercial market, commenters stated that the regulations must reflect the differences between commercial insurance and Medicaid and CHIP, as well as the different needs of the populations that each type of health coverage serves. These commenters stated that the proposed rule's approach misconstrues the intent and substance of the parity requirements if parity requirements only apply to Medicaid and CHIP services that are also covered by commercial insurance. Commenters suggested that there is no statutory basis for the interpretation underlying the proposed rule on this point and the corresponding application that long term services be excluded from the parity analysis. Commenters also stated that there are many services covered in the commercial plans that are comparable to long term services covered by Medicaid such as personal care, where the services might be covered for medical-surgical conditions, but not for MH/SUD because they are defined as “long term care.” This opens the door for decisions to exclude coverage or impose different financial or treatment limitations that would be otherwise prohibited by this rule but are wholly justified on any plausible rationale that characterizes the services as long term care.
Third, and finally, many commenters also identified the difficulty of formulating clear and consistent standards to distinguish between long term care services and other services across treatment settings, from both a definitional and an operational perspective; they stated that it would be administratively difficult to implement a policy that carved these services out of medical, surgical, MH/SUD benefits to exclude long term care services from parity protections. Many commenters also raised concerns that adopting this exclusion without providing a regulatory definition of long term care services would allow states and plans to declare a number of services to be long term care and thus not subject to parity in an inconsistent manner. Having no consistent definition of long term service would create disparate policies across states as to which services would
For these reasons, most commenters requested that parity requirements under this final rule be applied to long term care services that are within the scope of medical/surgical or mental health/substance use disorder services, or that if the exclusion were to be maintained, that very clear definitions and guidelines be provided regarding the services to be characterized as long term care services that are excluded from these other classification of services set forth in this rule.
We believe this change will reduce the likelihood that states would have disparate policies regarding which services would be subject to parity and could ensure that beneficiaries have similar protections regardless of where they live. In addition, this prevents states from applying treatment limits to long term care services needed for MH/SUD conditions more restrictively than treatment limits are applied for long term care services for medical/surgical conditions. We also believe that by requiring the categorization of long term services used to treat MH/SUD conditions, this final rule could improve beneficiary access to needed MH/SUD benefits. Finally, finalizing the regulations in this final rule with this change will provide MCOs and states with needed clarity regarding the application of parity to these services.
Several other commenters recommended that CMS provide a non-exhaustive list of “mental health conditions” that must be included within a state's definition of “mental health condition”. They added that simply stating that this term must be defined consistent with generally recognized independent standards of medical practice does not provide sufficient clarity and guidance to states. Commenters suggested that a non-exhaustive list would give greater clarity and uniformity among states, thus facilitating the collection and analysis of data and outcomes measures.
For the reasons described in the proposed rule and in consideration of the comments received, we are finalizing the provisions proposed in § 438.900, § 440.395, and § 457.496 of the proposed rule with modification. We are finalizing revised definitions of medical/surgical, mental health, and substance use disorder services so that they include, rather than exclude, long term care services. Additional modifications to the definitions proposed in § 457.496 are discussed in section III.G of this final rule.
In proposed § 438.905 and § 457.496(c), we addressed the parity requirements for aggregate lifetime and annual dollar limits for MCOs (including PIHPs and PAHPs when providing coverage for MCO enrollees) and CHIP. As noted above, the application of these requirements under this rule is generally the same as under the MHPAEA final regulations (45 CFR 146.136(b)). If a regulated entity applies an aggregate lifetime or annual dollar limit to at least two-thirds of all medical/surgical benefits, it must either apply the aggregate limit to both to medical/surgical benefits and to MH/SUD benefits in a manner that does not distinguish between the medical/surgical and MH/SUD benefits, or not include an aggregate lifetime or annual dollar limit on MH/SUD benefits that is less than the aggregate limit on medical/surgical benefits. If a regulated entity does not include an aggregate lifetime or annual dollar limit on medical/surgical benefits or includes a limit that applies to less than one-third of all medical/surgical benefits, it may not impose an aggregate lifetime or annual dollar limit, respectively, on MH/SUD benefits. If a regulated entity applies an aggregate lifetime or annual dollar limit to between one-third and two-thirds of all medical/surgical benefits, it must either impose no aggregate lifetime or annual dollar limit on MH/SUD benefits, or impose an aggregate lifetime or annual dollar limit on MH/SUD benefits that is no more restrictive than the average limit for medical/surgical benefits. These requirements do not address the provisions of section 2711 of the PHS Act, which prohibit imposing lifetime and annual limits on the dollar value of essential health benefits.
We noted in the proposed rule that for managed care arrangements, we are using our authority in section 1902(a)(4) of the Act to require PIHPs and PAHPs to comply with mental health parity requirements when providing coverage for MCO enrollees. The proposed regulations included definitions of “aggregate lifetime dollar limit” and “annual dollar limit” at § 438.900, § 440.395(a), and § 457.496(a).
Section 2711 of the PHS Act is applied to Medicaid MCOs by section 1932(b)(8) of the Act and to CHIP benchmark or benchmark-equivalent plans by section 2103(f)(2) of the Act (as section 2711 is part of subpart 2 of part A of title XXVII of the PHS Act). ABP and CHIP benefits that are offered through an MCO, or through a PIHP or PAHP that provides coverage to MCO enrollees are also subject to the prohibition on lifetime and annual limits. However, the prohibition on annual and lifetime limits in section 2711 of the PHSA does not apply to ABPs that are not offered by an MCO or by a PIHP, or PAHP to enrollees of an MCO.
Regardless of whether services are delivered in managed care or non-managed care arrangements, all Medicaid ABPs (including benchmark equivalent and Secretary-approved benchmark plans) and CHIP plans are statutorily required by sections 1937(b)(6) and 2103(c)(6) of the Act to meet the financial requirements and treatment limitations components of the mental health parity provisions set forth at section 2726(a) of the PHS Act.
We are finalizing the provisions at §§ 438.905 and 457.496(c) about aggregate lifetime and annual limits for Medicaid MCOs and CHIP as proposed. In the proposed rule, we included under § 438.905 the title of “General” under paragraph (a), with paragraph of “General parity requirement” under (a)(1). As we do not intend to use paragraph (a)(2), in the final rule we have removed the paragraph numbering for (a)(1) and named “General parity requirement” simply under paragraph (a) of this section, rather than including “General” in the title.
Sections 438.910, 440.395(b), and 457.496(d) of the proposed rule set forth parity requirements for financial requirements and treatment limitations.
In the proposed rule, we indicated that “classification of benefits” means a classification as described in § 438.910, § 440.395(b), and § 457.496(d), which describe parity requirements for financial requirements and treatment limitations. Specifically, we proposed to modify the classifications of benefits set forth in the regulations that were adopted by the Departments in the 2010 MHPAEA final rule (as discussed in section III.C.2). As in the MHPAEA final regulations, we proposed in this Medicaid and CHIP rule that parity requirements for financial requirements and treatment limitations be applied on a classification by classification basis.
We proposed the term “type” to refer to financial requirements and treatment limitations of the same nature. Different types of financial requirements and treatment limitations include copayments, coinsurance, annual visit limits, and episode visit limits. We proposed that a financial requirement or treatment limitation must be compared only to financial requirements or treatment limitations of the same type within a classification.
In addition, we proposed the term “level” to refer to the magnitude (such as the dollar, percentage, day, or visit amount) of the financial requirement or treatment limitation. We did not receive any comments on the definitions of terms described at § 438.910, § 440.395(b), and § 457.496(d) and are finalizing these terms as proposed.
At proposed § 438.910(b), § 440.395(b)(2), and § 457.496(d)(2), we included general parity provisions to prohibit a MCO, PIHP or PAHP (when providing benefits to an MCO enrollee), ABP (when used in a non-managed care arrangement), or CHIP state plan from applying any financial requirement or treatment limitation to MH/SUD benefits in any classification that is more restrictive than the predominant financial requirement or treatment limitation of that type that is applied to substantially all medical/surgical benefits in the same classification. For this purpose, the general parity requirement of MHPAEA would apply separately for each type of financial requirement or treatment limitation (for example, unit limits are compared to unit limits, or co-pays are compared to co-pays).
We noted in the proposed rule that the MHPAEA final regulations at § 146.136(c)(2)(ii) set forth the following classifications of benefits: inpatient in-network; inpatient out-of-network; outpatient in-network; outpatient out-of-network; emergency care; and prescription drugs. We proposed to follow the general structure of the classifications used in the MHPAEA final regulations with a significant distinction. Specifically, we proposed to eliminate the in-network and out-of-network distinctions for the inpatient and outpatient classifications, and therefore to provide four classifications: inpatient; outpatient; emergency care; and prescription drugs.
As discussed in this final rule, we maintain this classification structure. The four classifications in this final rule are the only classifications to be used for purposes of applying the parity requirements of MHPAEA to Medicaid and CHIP. Moreover, these classifications must be used for all financial requirements and treatment limitations to the extent that a MCO, PIHP, PAHP, ABP, or CHIP provides benefits in a classification and imposes any separate financial requirement or treatment limitation (or separate level of a financial requirement or treatment limitation) for benefits in the classification. Similar to the MHPAEA final rule, this final rule does not define what services are included in the inpatient, outpatient, or emergency care classifications. These terms are subject to the design of a state's managed care program and their meanings may differ depending on the benefit packages.
For the purposes of applying parity requirements to Medicaid, we proposed that the classifications of benefits should relate to how states construct and manage their Medicaid benefits. All Medicaid benefits provided should fall into one of the classifications of benefits. We noted that the MHPAEA final regulations discussed the application of parity requirements to intermediate services (such as residential treatment, partial hospitalization, and intensive outpatient treatment) provided under the health plan. Specifically, the MHPAEA final regulations required group health plans and issuers to assign covered intermediate MH/SUD benefits to a benefit classification in the same manner that they assign comparable intermediate medical/surgical benefits to a classification. The MHPAEA final regulations do not specifically define intermediate services; nor do current statutory and regulatory provisions governing the Medicaid and CHIP programs define intermediate services within state plan benefits. Therefore, we did not propose to specify an intermediate classification to be used in the parity analysis for Medicaid or CHIP programs. As in the MHPAEA final rule, we proposed to allow the applicable regulated entity (the MCO, PIHP or PAHP, or state in connection with the ABP, and CHIP) to assign intermediate level services to any of the classifications listed, but require that assignment to those classifications be done using the same standards for both medical/surgical services and MH/SUD services (
We note that similar concerns may arise regarding the classification of long term care services, given the revised definitions of mental health benefits and substance use disorder benefits set forth in this final rule. We did not propose and do not finalize any specific rules for the classification of long term care services. This final rule allows the applicable regulated entity (the MCO, PIHP or PAHP, or state in connection with the ABP, a carve-out managed care delivery system, and CHIP) to assign long term care services to any of the four listed classifications, but, as with intermediate and other services, requires that assignment to those classifications be done using the same reasonable standards for both medical/surgical services and MH/SUD services.
As indicated in the responses to comments, we are finalizing these provisions mostly as proposed. We are finalizing §§ 438.910(b)(2), 440.395(b)(2)(ii) and 457.496(d)(2)(ii) with a modification that requires that the standards used to assign benefits to a classification be reasonable as well as the same for both medical/surgical and MH/SUD benefits.
At proposed §§ 438.910(c), 440.395(b)(3) and, 457.496(d)(3), we addressed the application of the general parity requirement of MHPAEA to financial requirements and quantitative treatment limitations in MCOs, PIHPs, PAHPs, ABP and CHIP state plans. The general parity requirement at proposed §§ 438.910(b), 440.395(b)(2), and 457.496(d)(2) and now finalized in this rule would prohibit a MCO, PIHP or PAHP (in connection with coverage provided to an MCO enrollee), or ABP state plan (when used in a non-managed care arrangement), or CHIP state plan or MCE contracting with a CHIP state plan from applying any financial requirement or treatment limitation to MH/SUD benefits in any classification that is more restrictive than the “predominant” financial requirement or treatment limitation of that type applied to “substantially all” medical/surgical benefits in the same classification. In the proposed regulation text (that is, §§ 438.910(c), 440.395(b)(3) and 457.496(d)(3)), we proposed standards that are the same as those in the MHPAEA final regulations for determining the portion of medical/surgical benefits subject to a financial requirement or quantitative treatment limitation for purposes of the parity analysis. Under the proposed and now final rule, the portion of medical/surgical benefits in a classification subject to a financial requirement or quantitative treatment limitation would be based on the dollar amount of all payments for medical/surgical benefits in the classification expected to be paid during a specific year. For MCOs, PIHPS and PAHPs, this means dollar amounts for payment during a contract year. For ABPs and CHIP state plans, this means dollar amounts for the year starting the effective date of the approved ABP or CHIP state plan; effective dates for these plans will vary based on the date the ABP or CHIP state plan was approved by CMS. For purposes of this calculation, the MCOs (when such organizations are responsible for coverage of MH/SUD benefits) or the state (in cases where PIHPs and PAHPs are used in conjunction with MCOs) must determine the total amount projected to be expended to determine the two-thirds threshold.
We included a detailed example to illustrate how our proposal would work:
• Inpatient Hospital services for medical/surgical—30 days per year limit.
• Inpatient Hospital services for MH/SUD—30 days per year limit.
• Primary Care Physician Services for medical/surgical—unlimited.
• Specialist Physician Services for medical/surgical—50 visits per year.
• Outpatient MH services—20 visits per year limit.
• Physical Therapy—20 visits per year limit.
• Occupational Therapy—20 visits per year limit.
• Emergency Services—Unlimited for medical/surgical or MH/SUD
The MCO projects its payments as follows for medical/surgical benefits:
With regards to the level of the quantitative treatment limitation on inpatient MH/SUD services, the MCO may maintain its 30 day limit because 100 percent of all inpatient medical/surgical benefits are also subject to a 30 day limit, making it the predominant level.
However, with regards to the level of the quantitative treatment limitation on outpatient MH/SUD services, the MCO may not maintain its current limit of 20 visits per year. Of the total amount of outpatient medical/surgical benefits subject to a visit limit ($400x), 62.5 percent ($250x) are subject to a 50 visit limit (specialist services), and only 37.5 percent ($150x) are subject to a 20 visit limit (physical therapy and occupational therapy). Because the 20 visit limitation is not the predominant level (that is, it does not apply to at least 50 percent of the medical/surgical benefits in the classification subject to the visit limit), the MCO would need to either remove the visit limits altogether on outpatient MH/SUD services or increase the visit limitation to at least 50 visits per year to align with the least restrictive level of visit limits on outpatient medical/surgical benefits. Lastly, because there are currently unlimited emergency visits under the medical/surgical benefits, the MCO would need to maintain unlimited visits for emergency services for MH/SUD, and would not be able to impose any limits on MH/SUD unless limits were also imposed on medical/surgical services and such limits were consistent with parity requirements.
We received no comments on applying the general parity requirement to financial requirements and quantitative treatment limitations as described in §§ 438.910(c), 440.395(b)(3), and 457.496(d)(3). We are finalizing these provisions as proposed.
The MHPAEA final regulations at 45 CFR 146.136(c)(3)(iii)(A) permit plans under certain circumstances to apply different levels of financial requirements to different tiers of prescription drugs and still satisfy the parity requirements. The proposed rule would allow a MCO, PIHP, PAHP, ABP, or CHIP state plan to subdivide the prescription drug classification into tiers based on reasonable factors as described in the proposed regulations and without regard to whether a drug is generally prescribed for medical/surgical benefits or for MH/SUD benefits.
The MHPAEA final regulations at 45 CFR 146.136(c)(3)(iii)(C) permit a subclassification for office visits, separate from other outpatient items and services. Other subclassifications not specifically permitted, such as separate sub-classifications for generalists and specialists, cannot be used for purposes of determining parity. As proposed and finalized in this rule, we will retain this approach to subclassifications in the application of these parity requirements established in parts 438, 440 and 457 (that is, to services provided to enrollees in Medicaid MCOs, and to ABPs and CHIP). After the subclassification is established, a MCO, PIHP, PAHP, ABP, or CHIP state plan may not impose any financial requirement or quantitative treatment limitation on MH/SUD benefits in any sub-classification (for example, office visits or non-office visits) that is more restrictive than the predominant financial requirement or quantitative treatment limitation that applies to substantially all medical/surgical benefits in the sub-classification, using the parity analysis for financial requirements and quantitative treatment limitations.
In the MHPAEA final regulations, the Departments recognized that tiered provider networks have become an important tool for health plan efforts to manage care and control costs. Therefore, for purposes of applying the financial requirement and treatment limitation rules under MHPAEA, the MHPAEA final regulations provide that if a plan (or health insurance coverage) provides benefits through multiple tiers of in-network providers (such as an in-network tier of preferred providers with more generous cost-sharing to participants than a separate in-network tier of participating providers in any classification), the plan may divide its benefits furnished on an in-network basis into sub-classifications that reflect those network tiers, if the tiering is done without regard to whether a provider is a MH/SUD provider or a medical/surgical provider. While network tiers may also be used in Medicaid managed care, we do not believe that the parity standards for Medicaid managed care need to address such network structures so we did not propose regulation text to address financial limitations (for example, different cost-sharing requirements) in that context in this rule. Medicaid cost-sharing rules apply regardless of network status. Any quantitative treatment limitation outlined in the contract must be applied to the service broadly and therefore cannot have separate limitations based on network tiers. We recognize there may be network tiers used to commonly refer enrollees or for purposes of building the network and have varying payment rates to providers, but the use of multiple network tiers in the context of NQTLs is discussed in section III.E. of this final rule.
As indicated in the responses to the comments, we are finalizing the provisions regarding multi-tiered prescription drug benefits and other benefits at §§ 438.910(c)(2), 440.395(b)(3)(ii), 457.496(d)(3)(ii) as proposed.
While financial requirements such as copayments and coinsurance generally apply separately to each covered expense, other financial requirements (in particular, deductibles) accumulate across covered expenses. In the case of deductibles, generally an amount of otherwise covered expenses must be accumulated before the plan pays benefits. Financial requirements that determine whether and to what extent benefits are provided based on accumulated amounts were defined in the proposed rules as cumulative
However, unlike the MHPAEA final rule for insurers of group health plans, in the Medicaid and CHIP proposed rule we proposed to permit quantitative treatment limitations to accumulate separately for medical/surgical and MH/SUD services as long as they comply with the general parity requirement. We proposed to allow this separate accumulation of treatment limits in Medicaid and CHIP for several reasons. First, benefits for MCO beneficiaries must be provided in at least the same amount, duration, and scope as set forth in the state plan. Requiring plans to have cumulative limits across medical/surgical benefits and MH/SUD benefits within a classification may incentivize MCOs to retain the quantitative treatment limitation level applied on the medical/surgical benefits in the state plan as the total cumulative limit for both medical/surgical and MH/SUD benefits. This would comply with the requirements of parity, but would not meet the requirements of providing at least what is in the state plan. In addition, we believe that requiring quantitative treatment limitations within a classification of benefits to accumulate jointly toward a unified limit level may not benefit the enrollee. Specifically, if there were a combined visit or treatment limit individuals that have co-occurring disorders may not be able to use the same level of MH/SUD services they would have been able to use if benefits accumulated separately. In recognition of the positive beneficiary impact, we proposed and are finalizing in this rule to permit the MCO, PIHP, or PAHP to maintain separate quantitative treatment limitations, provided that any such limit for MH/SUD benefits is no more restrictive than the predominant limit applied to substantially all medical/surgical benefits in a given classification.
However, as noted in this section, to align with the MHPAEA final regulations, we are retaining the proposal that separate cumulative financial requirements will not be permitted. This is because we also believe that a unified cumulative deductible is also more beneficial for the beneficiary and is in recognition that Medicaid programs generally do not have financial requirements that are cumulative, such as deductibles, and that financial requirements such as co-pays, which are common in Medicaid programs, do not typically include cumulative limits. While we recognize the potential for ABPs to include deductibles, we note that nearly all group health plans and insurers had eliminated the use of separate deductibles for MH/SUD benefits by 2011.
As indicated in the response to comments, we are finalizing §§ 438.910(c)(3), 440.395(b)(3)(iii), 457.496(d)(3)(iii) as proposed.
States and the MCOs, PIHPs and PAHPs that contract with states are bound by the existing Medicaid and CHIP cost-sharing rules (§ 438.108 and part 457, subpart E). As previously indicated, the Medicaid program and CHIP are held to strict cost-sharing requirements for both managed care and non-managed care delivery systems. In the proposed rule, we emphasized that all financial requirements included in a MHPAEA analysis must also be in compliance with both existing cost-sharing rules and the requirements of this rule. Compliance with the parity requirements does not mean that a state, or MCO, PIHP or PAHP can violate existing cost-sharing requirements. Therefore, some cost-sharing structures in a state's Medicaid program or CHIP may need to change to be compliant with the MHPAEA parity standards addressed in this rule. To clarify this, in § 438.910(c)(4) we reiterated that requirement with a cross-reference to the cost-sharing rules applicable to MCOs, PIHPs and PAHPs.
We received no comments on this specific proposal and are finalizing § 438.910(c)(4) as proposed.
MCOs, PIHPs, PAHPs, ABP and CHIP state plans may impose a variety of limits affecting the scope or duration of benefits that are not expressed numerically. Nonetheless, such nonquantitative provisions are also treatment limitations affecting the scope or duration of benefits. As proposed and now finalized, §§ 438.910(d), 440.395(b)(4), and 457.496(d)(4) prohibit the imposition of any nonquantitative treatment limitation (NQTL) to MH/SUD benefits unless certain requirements are met. In addition, the proposed provisions and this final rule provide an illustrative list of NQTLs, including medical management standards; prescription drug formulary design; standards for provider admission to participate in a network; and conditioning benefits on completion of a course of treatment.
Under the MHPAEA final regulations at § 146.136(c)(4), a NQTL may not be imposed for MH/SUD benefits in any classification unless, under the terms of the plan (or health insurance coverage) as written and in operation, any factors used in applying the NQTL to MH/SUD benefits in a classification are comparable to and applied no more stringently than factors used in applying the limitation for medical surgical/benefits in the classification. For these purposes, factors mean the processes, strategies, evidentiary standards, or other considerations used in determining limitations on coverage of services.
We proposed to adopt the same approach to NQTLs in the application of parity requirements to Medicaid MCOs, PIHPs and PAHPs providing services to MCO enrollees, ABPs, and CHIP state plans. For states that are using a non-managed care delivery system for their ABPs and CHIP, the state (through its ABP and CHIP state plan) may only impose a NQTL on a MH/SUD benefit in any classification if it has written and operable processes, strategies, evidentiary standards or other factors used in applying—to MH/SUD benefits in that classification—the NQTL that are
We proposed and are finalizing in this rule an example of an NQTL regarding standards for accessing out-of-network providers. As discussed earlier, in the context of CHIP or ABPs that use a FFS delivery system or other non-managed care arrangement, absent a waiver, beneficiaries may choose from any qualified provider that has signed a Medicaid or CHIP provider agreement and are not limited to a network. In a Medicaid managed care environment, if a provider network is unable to provide necessary services covered under the contract to a particular enrollee, the MCO, PIHP or PAHP must adequately (and on a timely basis) cover these services out-of-network for the enrollee for as long as the MCO, PIHP or PAHP is unable to provide them in-network.
Finally, the proposed rule provided that if MCOs, PIHPs or PAHPs, ABPs and CHIP State plans provided through managed care are found to be in compliance with § 438.206(b)(4), that would be evidence that they are in compliance with § 438.910(d)(3) and § 457.496(d)(5), although the state will want to review how the plan is doing this in practice. We noted that the additional example of a NQTL regarding out-of-network providers is not relevant for states that are using a non-managed care delivery system for ABPs and CHIP state plan, since providers must be enrolled in Medicaid or CHIP and would not be considered out-of-network. As discussed below, we are not finalizing this approach to deemed compliance in this final rule in §§ 438.910(d)(3) and 457.496(d)(5), and instead are clarifying that regulated entities must comply with both sets of requirements.
We included in the proposed rule the examples, which have been modified slightly for greater clarity below, to illustrate the operation of the requirements for NQTLs.
• Treatments involving multiple services per session, with an increasing likelihood of medically unnecessary services with the higher number of services per session;
• Services with highly variable rates of progress for individuals patients; and
• Services with highly variable treatment approaches among providers.
We understand there could be instances where an MCO enrollee receives the majority of his or her services through a FFS delivery system. In those cases, the MCO will still need to deliver any MH/SUD services in compliance with these regulations; even if that means that the ability to use NQTLs is limited. However, states that contract with MCOs typically use them to deliver a comprehensive set of medical/surgical benefits.
After consideration of the comments received and further analysis of the reasons described in the proposed rule, we are revising the provisions proposed in § 438.910(d)(3) and § 457.496(d)(5) by finalizing them without the language to deem compliance with § 438.910(d)(3) and § 457.496(d)(5) of this final rule (regarding parity requirements for access to out-of-network providers) where an MCO, PIHP, or PAHP is found to be in compliance with the provider network standard found in § 438.206(b)(4). We are also revising the provisions in §§ 438.910(d)(3) and 457.496(d)(5) to require that the factors used to apply the limitation to MH/SUD benefits be “comparable to” and applied no more stringently than the factors used in applying the limitation to medical/surgical benefits in the classification, rather than requiring that the “same” factors be applied to both sets of benefits. We are also finalizing a technical change in the punctuation and the placement of the word “and” in § 457.496(d)(4)(ii)(G) and (H) to increase clarity in the final rule regulation text. With the exception of these revisions, as indicated in the response to comments, we are finalizing the provisions regarding NQTLs at §§ 438.910(d), 440.395(b)(4), and 457.496(d)(4) and (5)
Consistent with section 2103(c)(6)(B) of the Act, we proposed at § 457.496(b) to deem a separate CHIP compliant with mental health parity requirements if the state provides EPSDT in accordance with section 1905(r) of the Act. Proposed § 457.496(a) included a definition of EPSDT by cross reference to section 1905(r) of the Act, which specifies the scope of services and supports that must be provided as well as the medical necessity standard applicable to individuals entitled to EPSDT. However, to be deemed compliant with the mental health parity requirements, section 2103(c)(6)(B) of the Act also requires that a separate CHIP provide EPSDT benefits in accordance with section 1902(a)(43) of the Act. This requirement was not adequately addressed in the proposed regulation. Therefore, as discussed below in this final rule, we are modifying § 457.496(b) in the final rule to reflect that compliance with the requirements at section 1902(a)(43) of the Act is also necessary in order for a separate CHIP to be deemed compliant with parity provisions. We are also revising several proposed definitions set forth in § 457.496(a) as discussed later in this section of the final rule.
We received the following comments on these proposed provisions.
A few commenters were supportive of deeming separate CHIPs as compliant with MHPAEA strictly based on the state plan indicating that EPSDT benefits are covered for the population, and were opposed to considering other criteria, such as an examination of treatment limits, cost sharing, and NQTLs.
However, we appreciate commenters' concerns that it is not sufficient that the state plan only indicate coverage of EPSDT under a separate CHIP in order to be deemed compliant with mental health parity requirements. We also agree with commenters that separate CHIPs that exclude benefits or place limits on benefits that are not consistent with the scope of EPSDT under the Medicaid statute should not be considered eligible for deemed compliance with mental health parity requirements. Section 2103(c)(6)(B) of the Act provides that CHIPs covering EPSDT benefits are deemed compliant with parity requirements under MHPAEA. Specifically, section 2103(c)(6)(B) provides that a separate CHIP which provides EPSDT benefits and services consistent with sections 1905(r) and 1902(a)(43) of the Act are deemed compliant with the mental health parity requirements, and we have retained that statutorily-prescribed policy in the final regulation.
Section 1905(r) of the Act requires states to provide screening and diagnostic services as well as any medically necessary health care services, or treatments covered under section 1905(a) of the Act needed to correct or ameliorate defects and mental and physical illnesses or conditions, regardless of whether the service is covered under the Medicaid state plan. This allows for a broad array of services to be available under EPSDT such as rehabilitative and therapy services, counseling, personal care services, immunizations, periodic comprehensive well-child checkups and screenings for vision, hearing, and dental care, even if not covered for adults under the Medicaid state plan. Section 1905(r) of the Act also requires states to provide screening services at intervals that align with periodicity schedules that meet reasonable standards of medical or dental practice. Section 1902(a)(43) of the Act requires states to provide and arrange for these medically necessary screenings, diagnostic services, and treatments, and to inform individuals under 21 in Medicaid about the availability of the full range of EPSDT services available to them. Separate CHIP programs that comply with these statutory requirements will be considered to provide “full” EPSDT in their separate CHIPs and will be deemed compliant with the parity requirements. Separate CHIPs that do not comply with all of the statutory requirements in sections 1905(r) and 1902(a)(43) of the Act will not be deemed compliant; compliance for these programs will be based on satisfaction of the standards set forth in § 457.496.
In response to commenters' concerns that separate CHIPs will be deemed compliant with MHPAEA without providing the full scope of EPSDT benefits and supports, we are modifying § 457.496(b) of the final regulation to provide, with new language at paragraph (b)(1), that to be deemed compliant with the mental health parity requirements under § 457.496, a state must elect in its state plan to cover all EPSDT services required under section 1905(r) of the Act, as well as meet the informing and administrative requirements under section 1902(a)(43) of the Act and the approved State Medicaid plan. We are also adding new language at paragraph (b)(2) to require that the child health plan include a description of how the state will comply with the applicable Medicaid statute and the requirements of paragraph (b)(1)(i). The exclusion of services for particular conditions or diagnoses is also not permitted under section 1905(r) of the Act for individuals under 21 entitled to EPSDT services. Therefore, we have added a provision at § 457.496(b)(1)(ii) to preclude separate CHIPs from excluding any particular condition, disorder, or diagnosis under EPSDT benefits. We are also revising the meaning of EPSDT at § 457.496(a) to include references to both sections 1905(r) and 1902(a)(43) of the Act. We are not finalizing the proposed text that referred to “expansion of Medicaid programs” which we believe was confusing since the regulation applies only to separate CHIP programs.
In evaluating whether a state is fully compliant with the statutory requirements governing EPSDT benefits with respect to children enrolled in its separate CHIP, we will consider whether there are any outstanding compliance issues associated with the state's provision of EPSDT in its Medicaid program. While we recognize that in some states, the Medicaid and CHIP programs may not be identical and/or administered by different agencies, what is critical to be deemed compliant with the mental health parity requirements is that the provision of EPSDT in CHIP is compliant with the requirements in sections 1902(a)(43) and 1905(r) of the Act. For example, if a separate CHIP covers all benefits identified in section 1905(a) of the Act in accordance with the requirements set forth in section 1905(r)(5) of the Act, we would deem compliance with parity requirements in this final rule only if the separate CHIP also had procedures to inform individuals of the availability of those services, provide or arrange for screening services, and assure necessary transportation as part of the administration of those benefits as required by section 1902(a)(43) of the Act.
States that elect to apply any type of NQTLs under their separate program must ensure that such limits are consistent with EPSDT requirements at section 1905(r)(5) of the Act. We will closely review states' NQTLs to ensure that they meet deemed compliance standards under § 457.496(b). For example, states will have the discretion to exclude some experimental services, and this type of NQTL would be unlikely to present a barrier to deemed compliance. Conversely, annual and lifetime limits are not consistent with Medicaid and/or EPSDT, and this practice would preclude a state from deemed compliance.
Finally, we have added paragraph (b)(3) to § 457.496 to be clear that if a state has elected in its state child health plan to cover EPSDT benefits only for certain children eligible under the state child health plan, the state is deemed compliant with this section only with respect to such children.
States will also be required to affirm in their state plan that the processes, strategies, evidentiary standards, or other factors used in applying NQTLs to MH/SUD benefits are comparable to and applied no more stringently than those used in applying the limitation to medical/surgical benefits. As a part of the review process, we will work closely with states to ensure compliance with the parity requirements and assist states in their efforts to address any inconsistencies discovered during the review process.
In considering the comments received, we are finalizing the provisions proposed in § 457.496(a) with modifications to revise the definition of EPSDT benefits to specify that, for the purposes of § 457.496, EPSDT benefits means benefits defined in section 1905(r) of the Act that are provided in accordance with section 1902(a)(43) of the Act to mirror the statutory requirement in section 2103(c)(6)(B) of the Act regarding deemed compliance. Additional changes to proposed definitions in
Furthermore, § 457.496(b) is being finalized with substantive changes and a technical change to clarify the standards which must be met to be deemed compliant with § 457.496, including the provision of all EPSDT benefits as defined in section 1905(r) of the Act, and compliance with requirements for providing EPSDT benefits in accordance with section 1902(a)(43) of the Act. Additional language is also being incorporated to clarify that the state plan must include a description of how the state will comply with the EPSDT deeming requirements in § 457.496(b).
Under the MHPAEA final regulations at § 146.136 (d)(1), the criteria for medical necessity determinations made under a group health plan or health insurance coverage for MH/SUD benefits must be made available by the plan administrator or the health insurance issuer offering such coverage in accordance with regulations to any current or potential participant, beneficiary, or contracting provider upon request, in accordance with section 2726(a)(4) of the PHS Act. Under the same authority, the MHPAEA final regulations also require at § 146.136(d)(2) that the reason for any denial under a group health plan or health insurance coverage of reimbursement or payment for services for MH/SUD benefits in the case of any participant or beneficiary be made available, upon request or as otherwise required, by the plan administrator or the health insurance issuer to the participant or beneficiary. The proposed rule also addressed these issues.
We proposed to apply these disclosure requirements imposed on the health insurance issuer under MHPAEA and the MHPAEA final regulations regarding availability of information in a similar manner to MCOs and to PIHPs and PAHPs that provide coverage to MCO enrollees. As proposed and finalized in this rule in § 438.915(a), MCOs, PIHPs, and PAHPs subject to parity requirements must make their medical necessity criteria for MH/SUD benefits available to any enrollee, potential enrollee or contracting provider upon request. We proposed that MCOs, PIHPs, and PAHPs found to be in compliance with § 438.236(c),which requires dissemination by MCOs, PIHPs and PAHPs of practice guidelines to all affected providers, and, upon request to enrollees and potential enrollees, will be deemed to meet this requirement. In addition, we proposed in § 438.915(b) to require MCOs, PIHPs, or PAHPs to make available the reason for any denial of reimbursement or payment for services for MH/SUD benefits to the enrollee. As noted in the proposed rule, § 438.210(c) already requires each contract with an MCO, PIHP, or PAHP to provide for the MCO, PIHP, or PAHP to notify the requesting provider and give the enrollee written notice of any decision by the MCO, PIHP, or PAHP to deny a service authorization request or to authorize a service in an amount, duration, or scope that is less than requested.
Although the statute that applies MHPAEA to ABPs does not include specific provisions regarding the availability of plan information, in the proposed rule we proposed to use our authority under section 1902(a)(4) of the Act to extend this provision to all ABPs, as well as those ABPs with services delivered through MCOs, PIHPs and all PAHP. This final rule retains this provision. At § 440.395(c)(1), we proposed that all states delivering ABP services through a non-MCO must make available to beneficiaries and contracting providers on request the criteria for medical necessity determinations for MH/SUD benefits. Similarly, § 440.395(c)(2) in the proposed rule required the state to make available to the enrollee the reason for any denial of reimbursement or payment for services for MH/SUD benefits. For the same reasons, using our authority under section 2101(a) of the Act, we proposed at § 457.496(e) to require disclosure, upon request, to any current or potential CHIP enrollee or contracting provider of the criteria for medical necessity determinations and to require that the reason for any denial of reimbursement or payment for MH/SUD benefits be made available to the enrollee. As proposed, the CHIP rule would also apply to managed care plans, so we included a provision in that proposal for deeming compliance with the parity disclosure requirement if the managed care entity complied with § 438.236(c) disclosure requirements. We also proposed for CHIP plans that other laws requiring disclosure would still apply.
The MHPAEA final regulations at § 146.136(d)(2) state that non-federal governmental group health plans (or health insurance coverage offered in connection with such plans) that provide the reason for claim denial in a form and manner consistent with the requirements of 29 CFR 2560.503-1 for group health plans will be found in compliance with the MHPAEA disclosure requirements for denials.
For similar reasons, the proposed rule did not make claim denial requirements of 29 CFR 2560.503-1 a condition of deemed compliance for CHIP programs. CHIP enrollees have an opportunity for an external review of denials, reduction or suspension of health services under § 457.1130.
We requested comments on any additional provisions concerning the availability of plan information or notice of adverse determinations that may be necessary to facilitate compliance with MHPAEA for MCOs, PIHPs, PAHPs, ABPs, and CHIP.
In regards to CHIP, under § 457.1130 and § 457.1180, beneficiaries have the right to an external review related to health service matters and must receive a notice that includes the reasons why a determination was made. We believe these requirements allow beneficiaries to request and receive the necessary medical necessity information especially in terms of a denial to make a determination that access to the service is in compliance with these rules.
As indicated in the response to comments, we are finalizing the provisions regarding availability of information at § 438.915, § 440.395(d), § 457.496(e)
Section 1937(b)(6) of the Act, as added by section 2001(c) of the Affordable Care Act, and implemented through regulations at § 440.345(c) directs that ABPs that provide both medical and surgical benefits and MH or SUD benefits must comply with certain parity requirements. Further, ABPs must provide the 10 EHBs, including MH/SUD services. As states determine their ABP service package, states must use all of the EHB services from the base-benchmark plan selected by the state to define EHBs, consistent with the applicable requirements in 45 CFR part 156.
Section 1937 of the Act offers flexibility for states to provide medical assistance by designing different benefit packages, including other services beyond the EHBs for different groups of eligible individuals, as long as each benefit package contains all of the EHBs and meets certain other requirements, including parity provisions under section 2726 of the PHS Act.
While we did not request comment specifically on this section, we did receive many comments on ABPs. For the reasons set forth below, we are finalizing the proposed provisions at paragraphs (c) and (e)(1), with modification, which we describe below.
As indicated in the response to comments, we are finalizing the substance of the applicability standard as proposed in § 440.395(d)(1); we note that this provision is being designated as § 440.395(e)(1) in this final rule because of the addition of regulation text to address EPSDT in the context of ABPs and the parity requirements. In addition, a comma was added to this text (which follows the word “PAHP”) for grammatical reasons. Further, we are finalizing regulation text, in § 440.395(c), to deem compliance with the parity provisions when an ABP covers EPSDT.
We proposed to require states using ABPs to provide sufficient information in the ABP state plan amendment to assure and document compliance with parity provisions. The requirement was included in the proposed rule at § 440.395(d)(3) and is being re-designated as § 440.395(e)(3) in the final rule.
We are finalizing this provision as proposed, with a different designation, at § 440.395(e)(3).
The provisions of section 2726 of the PHS Act that are incorporated through sections 1932 and 1937 of the Act do not apply directly to the benefit design for Medicaid fee-for-service and non-ABP state plan services. Under the proposed rule, the requirements would apply to the benefits offered by the MCO (or, as discussed above, if benefits are carved out, to all benefits provided to MCO enrollees regardless of service delivery system) but did not apply to all Medicaid state plan benefit designs; for states that did not use an MCO at all in connection with delivery of services, the proposed rule at § 438.900 through § 438.930 would have not been applicable. States that have individuals enrolled in MCOs and have MH/SUD services offered through FFS would, under the proposed rule, have the option of amending their non-ABP state plan to be consistent with the proposed regulations or offering MH/SUD services through a managed care delivery system (MCOs, PIHPs, and/or PAHPs) to be compliant with the proposed rules.
As noted in the proposed rule, for beneficiaries who are not enrolled in a MCO, and thus not covered by section 1932(b)(8) of the Act, this rule would not affect coverage (other than when the services are part of an ABP). However, we encourage states to provide state plan benefits in a way that comports with the mental health parity requirements of section 2726 of the PHS Act.
While the provisions of this rule do not apply directly to the benefit design for Medicaid non-ABP state plan services, the requirements would apply to all benefits provided to the majority of Medicaid participants because that majority of enrollees are MCO enrollees. The rule, as proposed and as finalized, imposes parity requirements in terms of the total benefits package provided to MCO enrollees, regardless of service delivery system. States that have individuals enrolled in MCOs and have MH/SUD services offered through FFS will have the option of amending their non-ABP state plan to be consistent with these regulations or offering MH/SUD services through a managed care delivery system (MCOs, PIHPs, and/or PAHPs) to be compliant with these final rules. We also encourage states that have some beneficiaries not enrolled in an MCO to offer these beneficiaries the protections afforded under parity.
For MH/SUD benefits offered through FFS, states would not necessarily be required to amend their non-ABP state plan to meet parity requirements, but could use their existing state plan or waiver services to achieve parity when individuals are receiving some benefits (whether MH/SUD or medical/surgical) from a MCO and also some benefits through FFS (or through PIHPs or PAHPs)). However, if a state did not have MH/SUD benefits in every classification in which medical/surgical benefits are provided across all authorities, the state would have to choose either to offer these services through a MCO, PIHP or PAHP or amend its state plan (or a waiver of its state plan) to include these benefits to achieve compliance with proposed § 438.920(a) and (b).
As indicated throughout this final rule, we are finalizing the overall scope of the parity requirements as proposed. Specifically, the parity requirements will apply to benefits provided to MCO enrollees (regardless of the delivery system of those benefits), to ABPs and to CHIP. As discussed in the responses to comment, § 438.920(b)(2) is being finalized with changes to require states to monitor the program in any instance where an enrollee is receiving benefits through an MCO.
Sections 438.920, 440.395(d), and 457.496(f) of the proposed rule addressed the applicability and scope of the rule. Specifically:
• Section 438.920(a) proposed that the requirements of the subpart apply to delivery of Medicaid services when an MCO is used to deliver some or all of the Medicaid services; section 438.920(b) proposed state responsibilities when the MCO delivers only some of the Medicaid services. Section 438.920(b)(1) proposed that in the cases where some services are delivered outside of the MCO, the state must complete the parity analysis and provide evidence to the public. States completing the parity analysis must do so consistently with the parameters discussed in this rule, meaning they need to review the MH/SUD benefits to ensure they are included in the contracts with limitations or financial requirements that are no more stringent than the predominant limitations or financial requirements applied to substantially all of the medical/surgical benefits provided to the MCO enrollees. Under section 439.920(b)(2), we proposed that the state must ensure that MCO enrollees receive services in compliance with subpart K when the MCO did not provide all medical/surgical and mental health/substance use disorder benefits. Our proposal contemplated that these responsibilities could be met through appropriate reporting from the MCOs in order for the state to adequately oversee the program.
• Proposed § 440.395(d)(1) indicated that § 440.395 applied to ABPs that are not delivered through managed care.
• Proposed § 457.496(f)(1) indicated that § 457.496 applied to CHIP state plans, including when benefits are furnished under a contract with MCEs.
The tri-Department MHPAEA final rules state that if a group health plan or health insurance coverage provides MH/SUD benefits in any classification of benefits, MH/SUD benefits must be provided in every classification in which medical/surgical benefits are provided. Under our proposed amendments to part 438, for parity standards to apply, a beneficiary must be enrolled in an MCO, as defined in § 438.2, under a Medicaid contract. Enrollment in a PIHP or PAHP alone would not be not sufficient for parity to apply if a beneficiary were not also enrolled in an MCO. The proposed rule noted that whether the MCO provides medical/surgical or MH/SUD benefits under that contract is irrelevant for the MCO coverage to trigger parity requirements.
While many Medicaid MCOs are contracted to offer benefits in each of the classifications of benefits described in this rule, there are other state-initiated “carve out” arrangements (for example, PIHPs, PAHPs, or FFS) in which the MCOs are only contracted to provide benefits in one MH/SUD classification, while PIHPs, PAHPs, FFS, or a combination of all three provide coverage of benefits in other classifications; the division of coverage might be across the classifications identified in § 438.910(b), § 440.395(b)(2)(ii), and § 457.496(d)(2) or might be based on the nature of services as medical/surgical services, mental health services or substance use disorder services. For example, MCOs in these carve-out arrangements could have contracts that include MH/SUD benefits in the prescription drug and emergency care classifications of benefits, but some or all of the MH/SUD outpatient or inpatient benefits may be covered instead through a PIHP, PAHP, or FFS delivery system.
In instances where the MH/SUD services are delivered through multiple managed care delivery vehicles, we proposed in § 438.920(a) that parity provisions apply across the managed care delivery systems; this rule was proposed to apply for managed care delivery in the Medicaid program and in CHIP. Coverage parity requirements would apply to the entire package of services MCO enrollees receive, whether from the MCO, PIHP, PAHP, or FFS. If states carve out some MH/SUD services from the MCO contract and furnish those services by PIHPs, PAHPs, or FFS, we proposed to apply the foregoing parity requirements to the entire package of services MCO enrollees receive. Requiring the standards for parity to be applied to the overall package of benefits received by MCO enrollees allows MCOs to comply with these requirements without requiring inclusion of additional MH/SUD benefits in the MCO benefit package, as long as these MH/SUD benefits are provided elsewhere within the delivery system. In states where MH/SUD benefits are provided across multiple delivery systems (including FFS), we proposed in § 438.920(b)(1) that states would be required to review the full scope of benefits provided to MCO enrollees to ensure compliance with the requirements of this rule. We noted that we would expect states to work with their MCOs (or PIHPs and PAHPs) to determine the best method of achieving compliance with these parity requirements for benefits provided to the MCO enrollees. For MH/SUD benefits offered through FFS, states would not be required under the proposed rule to amend their non-ABP state plan to meet parity requirements, but could use their existing state plan or waiver services to achieve parity when individuals are receiving some MH/SUD benefits from a MCO (including PIHPs or PAHPs) and also some benefits through FFS. However, if a state does not have MH/SUD benefits in every classification in which medical/surgical benefits are provided across all authorities, the state would have to choose either to offer these services through a MCO, PIHP or PAHP or to amend its state plan (or a waiver of its state plan) to include these benefits to achieve compliance with proposed § 438.920(a) and (b). Applying various parity provisions across the different delivery system allows states the most flexibility in designing delivery systems while ensuring that parity in medical/surgical and MH/SUD services is provided to MCO enrollees. Given that there are many different delivery system configurations that carve out MH/SUD services, this allows compliance with parity requirements while reducing incentives for states to completely carve in all MH/SUD benefits to a MCO or carve out or terminate coverage of MH/SUD services.
In states where the MCO has responsibility for offering all medical/surgical and MH/SUD benefits, we noted in the proposed rule that compliance with our proposal would mean that the MCO is responsible for undertaking the parity analysis and working with the state on changes found to be necessary to the MCO contract for it to be compliant with parity requirements. Underlying our proposal was an anticipation that states would need to include contract provisions in these MCO contracts to make sure they can see the results of the parity analysis completed by the MCO and have adequate oversight of the program to ensure that enrollees are receiving services in compliance with these rules so they can be in compliance with the rules as amended in § 438.920(b)(2). In states where some or all MH/SUD benefits are provided to MCO enrollees through PIHPs, PAHPs, or FFS, we proposed in § 438.920(b)(1) that the state would have the responsibility for undertaking the parity analysis across these delivery systems and determining if the existing benefits and any financial or treatment limitations are consistent with MHPAEA. The state, based on this analysis, would have to make the necessary changes to ensure compliance with parity requirements for its Medicaid MCO enrollees. We also proposed in § 438.920(b)(1) that the state provide documentation of its compliance with this analysis to the general public within 18 months of the effective date of this rule.
For ABPs and CHIP state plans, we proposed to require states to apply the provisions of this rule across all delivery systems to ensure that beneficiaries have access to MH/SUD benefits in every classification in which medical/surgical benefits are provided. If states offer services through an ABP or CHIP state plan with various delivery systems (managed care and non-managed care), the state must apply the provisions of the rule across the delivery systems utilized for its ABP and CHIP state plan. The proposed rule included an example of how the proposal would apply across the delivery system in Medicaid:
• The MCO comprehensive benefits include inpatient medical/surgical benefits; outpatient medical/surgical benefits; emergency for medical/surgical and MH/SUD benefits; and prescription drugs for medical/surgical and MH/SUD benefits.
• The PIHP carve out benefits include inpatient MH benefit and the outpatient MH benefit.
• The PAHP carve out benefits include outpatient SUD benefits.
• The FFS system provides access to inpatient SUD benefits.
For purposes of this example, we assume there are no financial requirements or treatment limitations
When the MCO provides all medical/surgical and MH/SUD benefits, the statute imposes the parity compliance on the MCO. It is implicit in our final rule, at § 438.920(a), that the MCO perform the analysis in those circumstances. We believe that states should be aware of the timeframe for completing the parity analysis and the outcomes when the MCO does it to be sure the state oversees the delivery of benefits in a manner that is compliant with these rules, including implementing any appropriate contract changes. States should be sure to include contract provisions in their MCO contracts in these cases to be sure they get the necessary reporting during the 18-month implementation period.
As specified in § 438.920(b)(1) of this final rule, states must make documentation available to the public within 18 months after the publication of this final rule about compliance with these rules; this means that states must report how they are complying in order to document compliance. We have clarified in the final regulation at § 438.920(b)(1) that this documentation must be updated when benefits change.
We do not require through regulation that states consult with stakeholders on how to comply with these rules because in doing so we believe we would have needed to specify how and when that public input process occurred which could create further delays in the implementation timeline, making it longer than 18 months. Although we are not requiring states to work with stakeholders and other public interests to determine the best way to comply with these rules, we believe that states will need to discuss options with stakeholders in their current delivery systems to be able to ascertain the best delivery system for any additional benefits that may be required. We also encourage states to have discussions with stakeholders other than their providers and plans to ensure they achieve compliance in the best way for their beneficiaries. We do not believe we also need to post the materials on Medicaid.gov, as states will be posting their documentation on their own Web sites. Posting on state Web sites is more targeted and would be more effective in facilitating discussions with the stakeholders in that state. We are not mandating the use of a common methodology for state oversight of parity compliance, given the diversity of approaches that states use to structure their treatment delivery systems, and given our desire to provide states flexibility to tailor their administrative processes to the context and needs in their state. However, as noted in other sections, we will make technical
As indicated in the response to comments here and in other sections, we are finalizing these provisions in § 438.920(a) and (b), § 440.395(e), and § 457.496(f)(1) as proposed with several revisions. We revised § 438.920(b)(1) to clarify that the state must review both medical/surgical and MH/SUD services delivered to MCO enrollees to determine compliance with the final rules and we revised § 438.920(b)(2) to clarify that the state needs to complete oversight to ensure enrollees receive services in compliance with these rules in every instance that there is an enrollee of an MCO. The requirements of § 457.496(f)(1) were also modified to require states to indicate in their state plan the standard used, such as state guidelines or the most current versions of the DSM or ICD, when classifying benefits into their respective category as a medical/surgical, mental health, or substance abuse disorder benefit. The intent of this requirement is to capture this information within the state plan in order to increase transparency and facilitate our understanding of the state's parity analysis during our review of their compliance SPA. Furthermore, the collection of this standard is consistent with the approach taken in CHIP to describe other required benefits provided in separate CHIPs. We are also finalizing § 438.920(b)(1) with a change in the date by which the state must publish the documentation of its compliance with part 438, subpart K and a requirement for the state to update its analysis and documentation.
In the proposed rule, we included provisions relating to the scope of the parity requirements for Medicaid MCOs and CHIP state plans that were similar to the provisions set forth in the MHPAEA final regulations (§ 146.136(e)(3)). Specifically, the proposed regulations did not require a MCO, PIHP, or PAHP to provide any MH/SUD benefits for conditions or disorders beyond the conditions or disorders that are covered as required by their contract with the state. For MCOs, PIHPs, or PAHPs that provide benefits for one or more specific MH conditions or SUDs under their contracts, the proposed regulations did not require the MCO, PIHP, or PAHP to provide benefits for additional MH conditions or SUDs. The proposed regulations did not affect the terms and conditions relating to the amount, duration, or scope of MH/SUD benefits under the MCO, PIHP or PAHP contract except as specifically provided in § 438.905 and § 438.910 of part K. For states providing benefits through ABPs, we clarified in proposed § 440.395(d)(2) (which is being re-designated as § 440.395(e)(2) in this final rule), that § 440.395 does not require a state to provide any specific MH/SUD benefits; however in providing coverage through an ABP, the state must include EHBs based on the applicable EHB reference benchmark plan, including the ten EHBs specifically required in § 440.347.
However, under the requirements of this rule, a regulated entity may not impose NQTLs (including prior authorization or other utilization management strategies) for drugs used to treat MH/SUD conditions unless any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to the MH/SUD benefit are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation for medical/surgical benefits in the same classification. Similarly, under certain circumstances, regulated entities may apply different levels of financial requirements and treatment limitations to different tiers of prescription drugs and still satisfy the parity requirements. Regulated entities may subdivide the prescription drug classification into tiers based on reasonable factors as described in this rule and without regard to whether a drug is generally prescribed for medical/surgical benefits or for MH/SUD benefits.
As indicated in the response to comments, we are finalizing the provisions regarding scope of services at § 438.920(c), § 440.395(e)(2), and § 457.496(f)(2)
The proposed rule did not include an increased cost exemption for MCOs, PIHPs, or PAHPs. However, the proposed rule did include changes to payment provisions in part 438 to allow states to include the cost of providing additional services or removing or aligning treatment limitations in their actuarially sound rate methodology where such costs are necessary to comply with the MHPAEA parity provisions. These proposed changes to the managed care rate setting process would give states and MCOs the ability to fully comply with these mental health parity requirements by giving them flexibility to provide services compliant with this regulation or remove or align service limits. We stated that the Medicaid program rather than the plan should bear the costs of these changes, and proposed to provide up to 18 months after the date of the publication of the final rule for states to establish compliance with the provisions of this final rule (see discussion in section P: “Applicability and Compliance”). This would allow states to take the actions to make the policy and budgetary changes needed for compliance. The proposed rule also excluded permission for states delivering services through an ABP or CHIP State plan to apply for a cost exemption due to the mandatory delivery of EHB and the requirement that ABPs be compliant with MHPAEA.
The commenters suggested that although MCOs may receive increased capitation payments to comply with the parity requirements in this final rule, there is still an increased cost for the state (and the federal government). In addition, the commenters indicated that it does not make sense to prevent ABPs from accessing the cost exemption simply because they must cover EHBs and must comply with parity requirements. The commenters reasoned that Federal law also requires commercial group plans to comply with MHPAEA, and it requires commercial small group and individual plans to cover EHBs, but that does not exclude them from seeking for a cost exemption under MHPAEA. The commenters applied the same logic to CHIP.
As indicated in the response to comments, as proposed, we do not include provisions in the final rule for an increased cost exemption.
Proposed § 438.6(e) allowed a state's rate-setting structure to account for services covered by an MCO, PIHP, or PAHP in excess of services and/or treatment limits that are listed in the State plan if such services are necessary for the MCO, PIHP or PAHP to comply with this rule. However, the proposed rule only allowed the state to adjust its capitation rates to provide for additional services to the extent that these services would not be included but for the requirements of this rule.
Proposed § 438.6(n) required states to include contract provisions requiring compliance with parity requirements in all applicable MCO, PIHP, and PAHP contracts. We noted that we expected states, in order to comply with the proposal, to include a methodology for the MCO, PIHP, or PAHP to establish and demonstrate compliance with parity requirements within the contracts. This methodology would have to provide a mechanism for all MCOs, PIHPs, or PAHPs included in the delivery system to work together to ensure that any MCO enrollee in a state is provided access to a set of benefits that meets the requirements of this rule regardless of the MH/SUD benefits provided by the MCO. If it was not shown through the MCO contract itself that an enrollee has access to parity-compliant MH/SUD
If a state did not adequately demonstrate that an MCO's contract and practices are in compliance with the proposed rule, CMS proposed to defer federal financial participation (FFP) on expenditures for the MCO contract because compliance with section 1932 is a requirement for FFP payment under section 1903(m)(2)(A)(xii) of the Act. Where there are services outside of the MCO contract that are needed to demonstrate compliance, the state would be required to show how the MCO enrollees are provided all the services needed to comply with the requirements in this rule.
As with other Medicaid MCO contracts and state plan amendments, we will review associated and relevant documents submitted by the state. This will include the review of the MCO contracts and SPA documents, as well as any documentation of the parity analysis the state has done to determine that their system and/or benefit design meet the requirements of this rule. States will be the primary oversight entity to ensure that services are delivered in compliance with these rules. Beneficiaries and/or stakeholders should first direct any issues related to compliance with this rule to the state. We are willing to accept complaints around compliance with this rule and we may discuss these issues with states to determine if any corrective actions need to take place.
As indicated in the response to comments, we are finalizing the provisions regarding enforcement and managed care rate setting at § 438.6(e) and the provisions regarding contract review and approval at § 438.6(n) as proposed, with the exception of the revision in § 438.6(n) to target contract requirements on the provision, rather than the receipt, of services.
The proposed rule noted that MCOs, PIHPs, PAHPs, and states would have up to 18 months after publication of the final rule to establish compliance with the provisions of the final rule before we would take enforcement action. Specifically, we proposed as follows:
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An overwhelming number of commenters urged CMS to shorten the timeframe for states to come into compliance with the parity rules. Many referenced the fact that the proposed rule comes more than 5 years after the MHPAEA parity protections were applied to MCOs in 2008. States have been aware since passage of MHPAEA that its requirements apply to Medicaid MCOs and CHIP programs. Additionally states have known that these requirements apply to Medicaid ABPs since the passage of the Affordable Care Act in 2010. Recommendations to CMS from these commenters proposed a range of 6 to 12 months for states to come into compliance with this final regulation.
Several commenters recommended to CMS that health plans and their subcontractors not be penalized as a result of a state Medicaid agency experiencing delays in implementing the final rule in the required timeline. Additionally, it was requested that CMS allow plans an additional six months after a state has completed the parity analysis and developed the necessary standards to come into compliance.
For ABPs and CHIP, we will finalize the proposed policy to allow 18 months from the publication date of this final rule for states to establish compliance with the provisions of this final rule. While we understand that many commenters believe that states and MCOs should be complying with parity given the statute and subregulatory guidance, we believe that the regulations will require states and plans to make additional changes to their benefits and how they manage these benefits. In addition, the major reasons for allowing states 18 months to establish compliance with these rules are still relevant, including states' ability to get the necessary information to perform the parity analysis across delivery systems. As noted in other sections of the preamble, we may decline to approve MCO contracts and defer FFP if the state cannot establish that the benefits and delivery system are compliant with these rules. States may want to consider including penalties in their contracts if it is found that one of the managed care plans is the reason for the non-compliance.
As indicated in the response to comments, we are finalizing the provisions regarding applicability and compliance at § 438.930, § 440.395(d), § 457.496(f)
Current Medicaid regulations concerning utilization control include requirements for the review of need for admission into mental hospitals (§ 456.171). These regulations specifically require medical and other professionals within the Medicaid agency (or its designee) to evaluate each beneficiary's need for admission into inpatient services in a mental hospital. There is not a similar requirement for the Medicaid agency to review each beneficiary's medical/surgical admission to other hospitals. States have indicated that this regulation presents challenges to achieving parity for inpatient services rendered in a mental hospital. We proposed to eliminate § 456.171 (namely, the current regulatory language that requires Medicaid agencies to evaluate each applicant's or beneficiary's need for admission into inpatient services in a mental hospital by reviewing and assessing the hospital's medical, psychiatric and social evaluations). A state could continue these evaluations, but would have to ensure that the standards and processes are consistent with the provisions in this regulation regarding nonquantitative treatment limits when parity requirements under this rule are applicable.
Another commenter recommended against the elimination of evaluations of medical necessity of inpatient psychiatric hospital admissions proposed within the proposed regulations. The commenter maintained that the elimination of these evaluations could compromise states' and MCOs' ability to ensure that the services provided are necessary and appropriate within the context of the entire spectrum of behavioral health care provided within the state.
As indicated in the response to comments, we are finalizing the removal of § 456.171 as proposed.
The IMD exclusion is a statutory prohibition on providing Medicaid matching funds for services provided to individuals aged 21 to 64 who are inpatients in IMDs. IMDs are defined in statute as any hospital, nursing facility, or other institution of more than 16 beds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services. This exclusion has been in place since Medicaid was established in 1965 and was based on amendments to the statute that predated Medicaid and prohibited cash assistance payments for services for individuals in IMDs. The proposed regulation did not address the IMD payment exclusion. We received several comments on the applicability of this regulation on our IMD payment policy. While we understand commenters' concerns, we are not making changes to this rule on this topic for the reasons set forth below.
For the reasons indicated in the response to comments, we do not include provisions in the final rule that are specific to IMDs.
We received a number of comments about individuals who are dually eligible for both Medicaid and Medicare and the provision of both Medicaid and Medicare benefits to such beneficiaries. Mental health parity requirements under section 2726 of the PHS Act do not apply to Medicare Parts A, B, or D services covered by Medicaid MCOs, such as those covered by integrated plans for Medicare-Medicaid beneficiaries. The proposed rule noted that Medicare benefits are controlled by the Medicare statute and regulations, which are not within the scope of this rule.
For the reasons indicated in the response to comments, we do not include provisions in the final rule that are specific to coverage provided to Medicare-Medicaid beneficiaries.
For the most part, this rule finalizes the provisions of the proposed rule. Those provisions of this final rule that differ from the proposed rule are as follows:
• We have revised the definitions in § 438.900, § 440.395(a) and § 457.496(a) so that long term services are included in the definition of medical/surgical benefits, mental health benefits, and substance use disorder benefits and that the provisions of this final regulation apply to these services.
• We are finalizing § 438.910(b)(2), § 440.395(b)(2)(ii) and § 457.496(d)(2)(ii) with a modification that requires the standards used to assign mental health/substance use disorder benefits to a classification be reasonable as well as the same as the standards used for medical/surgical benefits.
• We have revised § 438.910(d)(3) and § 457.496(d)(5) to eliminate the deeming provision; as finalized these rules do not provide that MCOs or CHIP state plans will be deemed in compliance with parity solely based on adherence to § 438.206(b)(4); this revision clarifies that the requirements of these two provisions are complementary.
• We have also revised the language in § 438.910(d)(3) and § 457.496(d)(5), as proposed it included a requirement to use the “same” standards regarding access to out-of-network providers, to more closely align with the general requirement for NQTLs; the rule is finalized to require the use of “comparable” standards.
• We have revised § 438.6(n) to require MCO contracts to provide for services to be delivered in compliance with this rule and new subpart K, rather than requiring those contracts to ensure that enrollees actually receive such services.
• We have modified § 438.905(a) to change the heading and delete designation of (a)(1).
• We have revised § 438.920(b)(1) to clarify that states have to review both medical/surgical benefits and MH/SUD benefits when completing the parity analysis. We have also specified in § 438.920(b)(1) that information on compliance with the rule must be made
• We have revised § 438.920(b)(2) to require the state to ensure that all services be delivered to the enrollees of the MCO in compliance with this rule, regardless of whether the MCO covers all services or only a portion of the services.
• We have modified § 438.930 to provide that contracts with MCOs, PIHPs, and PAHPs offering Medicaid state plan services to enrollees, and those entities, must comply with the requirements of this subpart no later than 18 months after the date of publication of this final rule, regardless whether that date is the start or middle of a contract year.
• Consistent with the statute, we have added a new provision at § 440.395(c) to state that when ABPs are offering EPSDT services, they will be deemed in compliance with parity. We have also redesignated the remaining paragraphs and references accordingly.
• We have modified § 440.935(d)(1) to replace “Alternative Benefit Plans” with “ABPs” in the heading.
• We have revised 440.395(e)(2) to reflect that Essential Health Benefits are defined to potentially include more than the minimum 10 EHBs.
• We have modified § 457.496 throughout to replace “CHIP state plans” with “state plan.”
• We have added clarifying language to the definition of EPSDT benefits within § 457.496(a) to indicate that states must provide services described in section 1905(r) of the Act in manner that is compliant with section 1902(a)(43) of the Act.
• We have modified § 457.496(b) to specify the requirements states must follow in order for their separate CHIP to be deemed compliant with the MHPAEA parity requirements. These modifications include not excluding benefits on the basis of condition or diagnosis, and including a description of their efforts to comply with the deeming requirements within the state plan.. We also provide that if a state has elected in its state child health plan to cover EPSDT benefits only for certain children eligible under the state child health plan, the state is deemed compliant with this section only with respect to such children.
• We have modified § 457.496(d)(5) to refer to “providers for mental health or substance use disorder benefits” instead of “providers for mental health and substance use disorder benefits.”
• We have modified § 457.496(f)(1) to specify that states must describe the standard being used to define medical/surgical, MH, and SUD benefits in their state plan.
• We have modified § 457.496(f)(1) to replace “State Medicaid agency” with “State.”
• We have added a new § 457.496(f)(1)(i) and (ii) and redesignated the remaining provisions of this section.
• We have revised the regulatory text as applicable throughout to replace the acronym “MH/SUD” with the full phrase “mental health and substance use disorder” or “mental health or substance use disorder
Under the Paperwork Reduction Act of 1995 (PRA), we are required to provide 60-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
In our April 10, 2015, proposed rule (80 FR 19418) we solicited public comment on each of the section 3506(c)(2)(A) required issues for the following information collection requirements. PRA-related comments were received as indicated below in section V.D. under “Comments Associated with the Proposed Collection of Information Requirements.” While the changes that were made as a result of these comments did not revise the majority of the proposed requirements and burden estimates, burden for the requirements under § 438.920 (specific to performing and posting the parity analysis on the state's Web site) have been added to this final rule based on the comments received. Commenters raised concerns that the cost analysis of the proposed rule fails to consider the administrative cost to the states of providing MH/SUD services through MCOs and through FFS delivery systems. The proposed rule did not set forth such burden since we requested comments on our proposed approach.
To derive average costs, we used data from the U.S. Bureau of Labor Statistics' (BLS) May 2014 National Occupational Employment and Wage Estimates for all salary estimates (
We have adjusted all our employee hourly wage estimates by a factor of 100 percent. This is necessarily a rough adjustment, both because fringe benefits and overhead costs vary significantly from employer to employer, and because methods of estimating these costs vary widely from study to study. Nonetheless, there is no practical alternative and we believe that doubling the hourly wage to estimate total cost is
Sections 438.915(a), 440.395(c)(1), and 457.496(e)(1) require that the medical necessity determination criteria used by regulated entities for MH/SUD benefits be made available to potential participants, beneficiaries, or contracting providers upon request.
In the tri-Department MHPAEA final rule, the regulatory impact analysis (78 FR 68253 through 68266) quantified the costs for health insurance issuers and group health plans to disclose medical necessity criteria. For consistency and comparability, we are using the same method for determining this rule's disclosure costs, with adjustments to account for Medicaid MCOs, PIHPs and PAHPs, ABPs and CHIP, and the population covered.
To estimate the time it will take medical staff to respond to each request, we used the assumption in the MHPAEA final rule's impact analysis. Specifically, we assumed that it took a staff member (in this case, a medical secretary) 5 minutes to respond to the request. In this rule, this results in a total annual burden of 11,867 hours (142,403 requests × 5 min/60) at a cost of $382,592.08 (11,867 hours × $32.24/hour) for all Medicaid and CHIP programs. The state costs for this burden is $153,037 (state match is 40 percent of costs).
Table 3 also displays the added burden estimates, nationally and per program, for Medicaid MCOs and CHIP to comply with the medical necessity determination criteria's disclosure procedures. These estimates reflect the requests for medical necessity determination criteria's disclosure procedures by beneficiaries or contracting providers. The number of enrollees for MCOs/HIOs is based on the CMS national breakout as of July 2012 while the number for ABPs is based on the estimated enrollment growth due to Medicaid expansion (“National Health Expenditure Projections 2012-2022,” CMS).
The aforementioned requirements and burden will be submitted to OMB for approval under control number 0938-1280 (CMS-10556).
MHPAEA requires that the reason for any denial—under a group health plan or health insurance coverage—of reimbursement or payment for MH/SUD benefits must be made available (upon request or as otherwise required) by the plan administrator (or the health insurance issuer) to the beneficiary in accordance with MHPAEA regulations (45 CFR 146.136(d)(2)).
This final rule only addresses disclosure of information concerning the denial of reimbursement or payment for MH/SUD benefits. We believe that these requirements are already met by complying with existing disclosure requirements in parts 438 and 431, and therefore, do not create any new or revised requirements or burden beyond what is currently approved by OMB under control number 0938-1080 (CMS-10307). We also believe that these requirements are already met for CHIP by complying with existing notification and disclosure requirements in § 457.110 and § 457.1130, and therefore, do not create any requirements or burden beyond what is currently approved by OMB under control number 0938-1148 (CMS-10398 #34) (formerly, CMS-R-211, control number 0938-0707). For ABPs, these provisions do not create any new or revised third-party disclosure requirements beyond what is currently approved by OMB under control number 0938-1188 (CMS-10434).
When a state plan provides for an ABP, the state must provide sufficient information in an ABP state plan amendment (§ 440.300) request to assure compliance with the requirements of (§ 440.395(e)(3)), including the application of parity to treatment limitations as addressed in this rule. The ABP state Plan Application is employed by states to identify benefits offered to Medicaid beneficiaries receiving services under section 1937 of the Act. The application requires that states identify the MH/SUD services that will be offered under the plan. The plan also collects information on any limitations (quantitative and nonquantitative treatment limitations) and financial requirements across all benefit categories (including all medical/surgical services).
The parity requirements in § 440.395 do not impose any new or revised reporting, recordkeeping, or third-party disclosure requirements for 10 or more states since only one state and three territories operates their ABP state plan in FFS, and therefore, do not require additional OMB review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This rule does not impose any new or revised SPA-specific reporting, recordkeeping, or third-party disclosure requirements and therefore does not require additional OMB review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The currently approved ABP SPA template was designed to capture the MHPAEA final rule classifications and identify if there are specific treatment limitations or financial requirements. The ABP SPA template's information collection requirements and burden are not affected by this rule and are approved by OMB under control number 0938-1188 (CMS-10434).
States are required to review their respective CHIP state plans to determine if they are in compliance with federal law, and states must submit a CHIP SPA to make the necessary changes to the state plan to comply with changes in federal law as described in § 457.60(a). Section 502 of the CHIPRA amended section 2103(c) of the Act, which was described in SHO letters #09-014 and #13-001. Many states have performed parity analyses based on that guidance and submitted SPAs to come into compliance with MHPAEA.
However, as described in section III. G of this final rule, we plan on developing state plan pages specific to MHPAEA, so all states with a separate CHIP must submit a SPA to update their state plan. We anticipate that up to 42 states will need to submit a SPA, which may add up to 160 hrs. of additional burden on states based on the estimated burden of submitting a SPA (80 hrs.)
The January 2013 SHO letter addressed the application of the MHPAEA requirements in Medicaid and expanded upon the CHIP guidance that was provided in the November 2009 letter regarding section 502 of CHIPRA. Since the letters are discussed in section II.A. of this final rule (as background), we wish to clarify that this rule does not include any new or revised reporting, recordkeeping, or third-party disclosure requirements pertaining to either of the letters. Consequently, the PRA does not apply.
In § 438.6(n), states are now required to include contract provisions in all applicable MCO, PIHP, and PAHP contracts to comply with part 438, subpart K. We estimate a one-time state burden of 30 minutes at $67.38/hour for a business operations specialist to amend each contract with provisions that implement the requirements outlined in part 438, subpart K. Applicable to 36 states (which is the number of states that have an MCO model), and to a total of 602 contracts in those states, in aggregate we estimate 301 hours (602 contracts × 0.5 hours) and $20,281 (301 hours × $67.38/hr.). State costs for this burden is $8,112 (40 percent of costs are state match). The requirements and burden will be submitted to OMB for approval under control number 0938-1280 (CMS-10556).
In any instance where the full scope of medical/surgical and MH/SUD services are not provided through the MCO, § 438.920 specifies that the state must review the MH/SUD and medical/surgical benefits provided through the MCO, PIHP, PAHP, and fee-for service (FFS) coverage to ensure that the full scope of services available to all enrollees of the MCO complies with the requirements in this subpart K. The state is also expected to review the parity analysis provided by an MCO that is responsible for delivering all MH/SUD Medicaid services. The state must provide documentation of compliance with the requirements under this subpart to the general public and post this information on the state's Medicaid Web site. The 36 states that have an MCO model would be responsible for developing or reviewing the benefits offered by MCOs, PIHPs, PAHPs and FFS to ensure the benefits offered to enrollees of the MCO comply with requirements in this subpart. We estimate a state burden of 8 hours at $67.38/hour for a business operations specialist to perform this analysis and document compliance and, on an ongoing basis, update the documentation. In aggregate, we estimate 384 hours (36 states × 8 hours) and $19,405 (288 hours × $67.38/hr.). State costs for this burden is $7,762. The requirements and burden will be submitted to OMB for approval under control number 0938-1280 (CMS-10556).
We submitted a copy of this final rule's information collection and recordkeeping requirements to OMB for review and approval. The requirements are not effective until they have been formally approved by the OMB.
To obtain copies of the supporting statement and any related forms for the proposed collections discussed above, please visit CMS' Web site at
We invite public comments on these potential information collection requirements. If you wish to comment, please identify the rule (CMS-2333-F) and submit your comments to the OMB desk officer via one of the following transmissions:
ICR-related comments are due April 29, 2016.
This final rule addresses the applicability of the requirements under the MHPAEA to Medicaid non-managed care benchmark and benchmark-equivalent plans (referred to in this final rule as Medicaid ABPs) as described in section 1937 of the Act, CHIP under title XXI of the Act, and Medicaid MCOs as described in section 1932 of the Act.
In 2013, we released a SHO letter that provided guidance to states regarding the implementation of requirements under MHPAEA to Medicaid benchmark and benchmark-equivalent plans (referred to in this letter as ABPs), CHIP, and Medicaid MCOs.
Final regulations implementing MHPAEA were published in the tri-Department MHPAEA final regulations that do not apply to Medicaid MCOs, ABPs, or CHIP state plans.
We believe that in absence of a regulation specific to the application of the parity requirements under MHPAEA to Medicaid and CHIP, states would not be compelled to implement the necessary changes to these programs, resulting in an inequity between beneficiaries who have MH/SUD conditions in the commercial market (including the state and federal marketplace) and Medicaid and CHIP. Even for states that are attempting to comply with parity requirements under MHPAEA, the absence of regulation could lead to inconsistent state-specific policies.
This final rule provides the specificity and clarity needed to effectively implement the policies set forth by MHPAEA and prevent the use of prohibited limits on coverage, including nonquantitative treatment limitations that disproportionately limit coverage of treatment for MH/SUD conditions. The Department's assessment of the expected economic effects of this final rule is discussed in detail below.
We have examined the impacts of this final rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) (Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We estimate that this final rule is “economically significant” as measured by the $100 million threshold, and hence, also a major rule under the Congressional Review Act. Accordingly, we have prepared a RIA, which to the best of our ability presents the costs and benefits of the rulemaking.
Because the application of parity requirements to ABPs; MCOs and PIHPs and PAHPs providing services to MCO enrollees; and the CHIP is likely to have an effect on the economy of $100 million or more in any given year, this final rule is economically significant within the meaning of section 3(f)(1) of the Executive Order as elaborated below, we believe the benefits of the rule justify the costs.
This final rule would benefit approximately 22.3 million Medicaid beneficiaries and 880,000 CHIP beneficiaries in 2016, based on service utilization estimates from 2012 Medicaid and CHIP enrollment. We expect that a significant benefit associated with the application of the parity requirements under MHPAEA and these final regulations will be derived from applying parity requirements to the quantitative treatment limits such as annual or lifetime day or visit limits. Applying parity requirements to visit or stay limits will help ensure that vulnerable populations—those accessing substantial amounts of MH/SUD
Evidence-based treatment for severe and persistent mental illness, and for substance use disorders, often requires prolonged (possibly lifetime) treatment that consists of pharmacotherapy, supportive counseling, and often rehabilitative services. Individuals with severe MH/SUD conditions often quickly exhaust their benefits under Medicaid managed care. In addition, CHIP programs may restrict coverage, such as covering only 40 hours of psychotherapy or 5 days of detoxification per year. These coverage restrictions often result in people forgoing outpatient treatment and a higher likelihood of non-adherence to treatment regimes, which produce poor health and welfare outcomes and create the potential for increased hospitalization costs.
Application of parity requirements may also result in changes to payers' utilization management approaches, specifically when requiring preauthorization of mental health services. It was found that even when approval for continued access to mental health services was in essence guaranteed, patients required to obtain prior approval sought out less treatment, perhaps believing they “should not” access further needed treatment.
Application of parity requirements under MHPAEA may also have benefits in terms of reduced medical costs. Mental health and physical health are interrelated, and individuals with poor mental health are likely to have physical
A primary objective of Congress in enacting MHPAEA was to eliminate barriers that impeded access to and utilization of MH/SUD benefits. Cost increases and increases in capitated rates may occur as a result of increased access and utilization from the application of parity requirements and these regulations, but the evidence suggests that any increases will not be large. The impact of parity requirements will depend on the extent to which MCOs, ABPs, and CHIP plans lack benefits in some classifications or manage these benefits inconsistent with such parity requirements.
In the April 30, 2010 final rule on State Flexibility for Medicaid Benefit Packages (75 FR 23068), the assumptions utilized in modeling the estimated economic impact of the associated provisions took into account the costs of the benefit package for the new adult group served through ABPs. Coverage of these benefits was already accounted for in the April 30, 2010 final rule, and therefore, does not need to be repeated here. Because we approved ABPs only after ensuring compliance with MHPAEA, we project that this regulation will result in no additional costs to ABPs.
A review of Medicaid managed care benefits in all 50 states and the District of Columbia revealed that a subset of states (18 states) had Medicaid managed care plans that imposed quantitative treatment limits on outpatient visits, inpatient stays, and intermediate services (for example, intensive outpatient treatment). As indicated in the preamble, some of these quantitative treatment limits are a result of what is currently in a state's Medicaid plan.
A review of CHIP plans indicated that most are already compliant with MHPAEA. CHIP plans that include Medicaid EPSDT are already required to cover mental health and substance abuse services as needed and they are deemed compliant with MHPAEA parity requirements for financial requirements and treatment limitations. It is not permissible to apply annual or lifetime limits to the EPSDT benefit. CHIP stand-alone programs are also already compliant with MHPAEA because of changes to treatment limitations for both MH/SUD benefits and medical and surgical benefits required under the Affordable Care Act.
We conducted an analysis to determine how the use of services might increase if quantitative limits on Medicaid MCO and CHIP programs were eliminated. Where quantitative limits exist that are non-compliant with parity requirements, states also have the option to align these limits for MH/SUD and medical/surgical benefits consistent with the provisions of this final rule. However, to estimate the highest possible cost impact that could be expected, we simulated the effect of removing visit and day limits in states with limits for treatment users by anticipating that utilization would increase for beneficiaries who were near or exceeded current limits to equal utilization patterns observed in states without limits for Medicaid managed care beneficiaries. This simulation indicated the maximum impact of removing quantitative day and visit limits on MH/SUD services by Medicaid MCOs to be $109.0 million nationwide (including federal and state costs) in undiscounted dollars in 2016. Using a similar approach, we estimated the maximum impact of removing quantitative limits on CHIP expenditures to be $42.1 million in undiscounted dollars in 2016.
However, these estimates are the largest possible cost impacts and the actual impact is likely to be lower. One reason is that some states with quantitative limits may have mechanisms in place for beneficiaries to obtain hospital days or outpatient visits beyond the state's limit if such care is determined to be medically necessary. In practice, we anticipate a potentially lower impact than estimated currently, given that quantitative limits may already be routinely exceeded. We found that in most of the 18 states with visit limits, a number of recipients (ranging from 5 to 20 percent) used services beyond the treatment limit, suggesting that exceptions to the quantitative limits may occur in these states. This does not appear to be the case in all states, because in a few states with visit limits ranging from approximately 24 to 40 visits, only 1 or 2 percent of recipients exceeded the limit.
There are no studies to date on how the application of federal parity requirements affects Medicaid spending.
Vermont's parity law is also very similar to MHPAEA. A study of Vermont's parity law found that the share of spending on mental and substance use disorders increased from 2.30 percent to 2.47 percent of total spending for one health plan.
Finally, a recent evaluation of the effect of MHPAEA on the commercial market revealed a modest increase in spending on substance use disorder treatment per enrollee ($9.99, 95 percent CI: 2.54, 18.21), but no significant change in the percent of individuals using substance use disorder services.
This final rule requires that if the state provides for MH/SUD services under the state plan, MH/SUD services must be provided to MCO enrollees in every classification in which medical/surgical benefits are provided. After reviewing the MH/SUD services provided under Medicaid managed care plans, we identified only two states providing for MH/SUD services under the state plan in which MH/SUD services were excluded from a classification in which medical/surgical benefits are provided. In both states, the excluded services were substance abuse inpatient services. For the purposes of this analysis, we assumed that substance abuse inpatient services would need to be included to the extent that they were provided in a distinct part or unit of a general hospital or facility with 16 or fewer beds. Using data on current use of Medicaid substance use disorder inpatient services and the cost of those services from Medicaid claims data, we estimated that the additional coverage for these services would have led to an increase of $11.7 million nationwide in undiscounted dollars in 2012.
Table 6 displays the total costs of removing non-compliant QTLs by service and meeting classification of services requirements in 2012.
Costs for complying with parity rules for each service category were estimated based on a simulation of additional utilization states may incur as a result of removing quantitative treatment limits.
These figures are calculated based on 2012 Medicaid and CHIP expenditures, which equate to approximately $125.3 million in additional costs as a result of parity compliance. Given that total Medicaid and CHIP expenditures in 2012 were $552.6 billion, the impact of this rule would increase Medicaid and CHIP spending by about 0.02 percent each year. As total Medicaid and CHIP expenditures increase over time, the cost impact of mental health parity is expected to rise proportionally. Accordingly, to determine the anticipated impact of mental health parity in cost in future years, we applied growth in Medicaid and CHIP expenditures from the mid-session review of the President's FY 2016 budget to this cost.
As described above, the cost of improving access to MH/SUD treatment may be offset by a decline in the expenditures on treatments for medical conditions resulting from substance use disorders. There is strong evidence from Medicaid programs to assume a cost offset resulting from improved access to substance use disorder benefits. In contrast, the evidence for cost offset resulting from improved access to mental health benefits is weaker. We anticipate that, on balance, costs stemming from increased utilization of substance use disorder services resulting from application of parity requirements will be largely offset by the savings from reduced medical costs, yielding very little increase in overall costs from increased utilization of substance use disorder services. However, given the difficulty of quantifying the precise cost impact of this reduced use of medical services that is expected to result from enhanced access to substance use disorder services, we have not included any cost offset in our estimates.
Under the MHPAEA final rules, medical management can be applied to MH/SUD benefits if the processes, strategies, evidentiary standards, or other factors used in applying medical management are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying medical management to medical and surgical benefits. It is difficult to determine whether, at baseline, Medicaid MCOs, PIHPs, PAHPs, ABPs and CHIP programs are applying medical management more stringently to MH/SUD benefits than to medical and surgical benefits. A state-by-state search of available Medicaid documents indicated that most states that use inpatient utilization management techniques for MH/SUD services, such as prior approval or continuing utilization review for inpatient stays, have similar restrictions for medical and surgical conditions. Surveys of commercial plans have also found that inpatient managed care restrictions, such as pre-admission prior approval, are common for medical and surgical admissions.
Moreover, if some Medicaid plans have stricter management controls for MH/SUD services than for medical services, there is scant evidence at this time as to how utilization management will evolve with the application of parity requirements and whether stricter controls would result in higher costs.
Transfer payments are monetary payments from one group to another that do not affect total resources available to society. There is a potential that application of parity requirements under MHPAEA will result in transfers among different government entities. MH/SUD services receive greater funding from public sources, such as Medicaid, federal government block grants, state government general funds, and local government funding, than do medical and surgical services.
We considered several other approaches for providing guidance to states regarding the application of the MHPAEA to Medicaid MCOs, ABPs, and CHIP. As stated in the preamble of this final rule, under our current policies, there is no way to ensure that MCO enrollees receive state plan benefits in a way that fully complies with MHPAEA. This is because section 1932(b)(8) of the Act does not apply to the design of the traditional Medicaid state plan, and state plans thus may be designed in a way that does not comply with MHPAEA requirements. Under current guidance, we have said that if an MCO is simply properly applying state plan benefits, there is no violation of section 1932(b)(8) of the Act even if that benefit design does not conform to MHPAEA, because the MCO did not adopt that benefit design and thus was not at fault in its non-compliance. As explained above, we do not believe that this policy effectuates Congressional intent in enacting section 1932(b)(8) of the Act. Further, we believe that implementation of the statute requires that MCO enrollees receive benefits in a manner that complies with MHPAEA.
We considered requiring that all state plan MH/SUD services be included under MCO contracts as the way to ensure that MCO enrollees receive the full protections of MHPAEA. However, we believe that this final rule allows states the most flexibility when applying mental health parity requirements to their Medicaid services across delivery systems. Given that there are many different delivery system configurations that carve out MH/SUD services, this approach allows states to comport with parity requirements for MCO enrollees without completely carving out MH/SUD services from their MCO or dropping MH/SUD coverage altogether.
Also, under current statutes, regulations and policies, states would not be required under federal law to apply MHPAEA provisions to PIHPs and PAHPs (many of which provide MH/SUD services) since these arrangements were not specifically addressed in section 1932(b)(8) of the Act, and MHPAEA does not directly apply to such contracts. Consideration of these unique state MH/SUD delivery systems is an important distinction in Medicaid when compared to the commercial market. Further, because the statutory provisions making mental health parity requirements applicable to MCOs do not explicitly address these situations, additional interpretation is needed.
In addition to the delivery system issues, states would not be required to remove or align limits on services that were in the state plan for individuals enrolled in an MCO. As stated previously in this regulation, these limits are carried through in the development of rates, and cost of services outside of the state plan or a waiver of the state plan cannot be included. Without the change in this rule, individuals enrolled in an MCO could still be subject to treatment limitations that are not compliant with parity requirements, which we believe is inconsistent with the intent of Congress in requiring in section 1932(b)(8) of the Act that MCOs deliver services in a manner consistent with MHPAEA requirements and the policies regarding application of MHPAEA to ABPs and CHIP that operate in a FFS arrangement. In addition, without these changes to the managed care rate setting process, it will be difficult for MCOs to comply with statutory requirements regarding financial requirements and treatment limitations.
Finally, there are mental health parity provisions that are not applicable to the FFS delivery systems for Medicaid ABP benefits; these include annual and lifetime dollar limits, availability of plan information, and access to out-of-network providers.
In addition, we considered the ability to provide guidance and enforce the provisions of MHPAEA's application to Medicaid and CHIP through sub-regulatory guidance. Over the past 6 years, we have used two SHO letters to provide guidance to states regarding MHPAEA and Medicaid and CHIP. While states and other stakeholders found this guidance useful, there were many questions or concerns regarding the lack of specificity regarding application of MHPAEA parity requirements to Medicaid and CHIP. There were several issues that states raised regarding this sub-regulatory guidance. One issue was the actuarial soundness requirements, which mandate that MCO payments be based on services as covered under state plans. Another was additional clarification of NQTLs and states' concerns regarding existing federal and state policies that required utilization management strategies that were inconsistent with the intent of MHPAEA. States also raised additional questions regarding application of MHPAEA parity requirements to other delivery systems including PIHPs, PAHPs, and FFS. We do not believe that additional subregulatory guidance would provide the necessary authority for MCOs and states to implement or enforce MHPAEA parity requirements for Medicaid beneficiaries enrolled in an MCO.
As required by OMB Circular A-4 (available at
The projected impact on costs in 2016 was calculated by multiplying the percent anticipated increase in cost due to the application of parity requirements by expected Medicaid expenditures in 2016. Based on our analysis, the parity rule will lead to an increase of approximately 0.03 percent in total Medicaid spending each year over 10 years. In 2016, Medicaid expenditures overall are projected to equal approximately $540.3 billion.
The RFA requires agencies to analyze options for regulatory relief for small entities, if a rule has a significant impact on a substantial number of small entities. The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the SBA definition of a small business (having revenues of less than $7.5 million to $38.5 million in any 1 year). States are not included in the definition of a small entity. This final rule does not change the rates at which providers would be reimbursed for any additional treatments and services that may be required, and MCOs, PIHPs, and PAHPs will be paid on an actuarially sound basis for any additional coverage that they will be required to provide. As indicated previously in this final rule, the increased costs will be borne by states and the federal government, which are not considered small entities. Therefore, the Secretary has determined that this final rule will not have a significant economic impact on a substantial number of small entities as that term is used in the RFA.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. The Secretary has determined that this final rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. Currently, that is approximately $144 million. UMRA does not address the total cost of a rule. Rather, it focuses on certain categories of cost, mainly those “Federal mandate” costs resulting from (A) imposing enforceable duties on state, local, or tribal governments, or on the private sector, or (B) increasing the stringency of conditions in, or decreasing the funding of, state, local, or tribal governments under entitlement programs. The average state share of total Medicaid spending in 2016 is projected to be 38.2 percent. The total cost impact of this rule is estimated to be $178.1 million in 2016. Therefore, the total cost to states is projected to be approximately $68.0 million. Therefore, this final rule is not subject to UMRA.
Executive Order 13132 establishes certain requirements that an agency must meet when it issues a final rule that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has federalism implications.
In the Secretary's view, this final rule has Federalism implications, because it has direct effects on the states, the relationship between the federal government and states, or on the distribution of power and responsibilities among various levels of government. However, in the Secretary's view, the Federalism implications of this final rule are substantially mitigated because, with regards to MCOs, ABPs, and CHIP, the Secretary expects that many states already offer benefits under their state plan and MCO contracts that meet or exceed the Federal mental health parity standards that would be implemented in this rule.
Throughout the process of developing these regulations, to the extent feasible within the relevant provisions of the Act, PHS Act and MHPAEA, the Secretary has attempted to balance the latitude for states to structure their state plan services and MCO contracts according to the needs and preferences of the state, and the Congress' intent to provide uniform minimum protections to Medicaid and CHIP beneficiaries in every state. By doing so, it is the Secretary's view that this final rule complies with the requirements of Executive Order 13132.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Grant programs-health, Medicaid, Reporting and recordkeeping requirements.
Grant programs-health, Medicaid reporting.
Administrative practice and procedure, Drugs, Grant programs-health, Health facilities, Medicaid, Reporting and recordkeeping requirements.
Administrative practice and procedure, Grant programs-health, Health insurance, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below:
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(e)
(1) Any services necessary for compliance by the MCO, PIHP, or PAHP with the requirements of subpart K of this part and only to the extent such services are necessary for the MCO, PIHP, or PAHP to comply with § 438.910; and
(2) Any services that the MCO, PIHP, or PAHP voluntarily agrees to provide.
(3) Only the costs associated with services in paragraph (e)(1) of this section may be included when determining the payment rates under paragraph (c) of this section.
(n)
(2) Any State providing any services to MCO enrollees using a delivery system other than the MCO delivery system must provide documentation of how the requirements of subpart K of this part are met with the submission of the MCO contract for review and approval under paragraph (a) of this section.
For purposes of this subpart, except where the context clearly indicates otherwise, the following terms have the meanings indicated:
(a)
(b)
(c)
(1) Apply the aggregate lifetime or annual dollar limit both to the medical/surgical benefits to which the limit would otherwise apply and to mental health or substance use disorder benefits in a manner that does not distinguish between the medical/surgical benefits and mental health or substance use disorder benefits; or
(2) Not include an aggregate lifetime or annual dollar limit on mental health or substance use disorder benefits that is more restrictive than the aggregate lifetime or annual dollar limit, respectively, on medical/surgical benefits.
(d)
(e)
(i) Impose no aggregate lifetime or annual dollar limit, on mental health or substance use disorder benefits; or
(ii) Impose an aggregate lifetime or annual dollar limit on mental health or substance use disorder benefits that is no more restrictive than an average limit calculated for medical/surgical benefits in the following manner. The average limit is calculated by taking into account the weighted average of the aggregate lifetime or annual dollar limits, as appropriate, that are applicable to the categories of medical/surgical benefits. Limits based on delivery mechanisms, such as inpatient/outpatient treatment or normal treatment of common, low-cost conditions (such as treatment of normal births), do not constitute categories for purposes of this paragraph (e)(1)(ii). In addition, for purposes of determining weighted averages, any benefits that are not within a category that is subject to a separately-designated dollar limit under the contract are taken into account as a single separate category by using an estimate of the upper limit on the dollar amount that a MCO, PIHP, or PAHP may reasonably be expected to incur for such benefits, taking into account any other applicable restrictions.
(2)
(a)
(2)
(3)
(b)
(2)
(i)
(ii)
(iii)
(iv)
(c)
(ii)
(B) If, for a type of financial requirement or quantitative treatment limitation that applies to at least two-thirds of all medical/surgical benefits in a classification, there is no single level that applies to more than one-half of medical/surgical benefits in the classification subject to the financial requirement or quantitative treatment limitation, the MCO, PIHP, or PAHP may combine levels until the combination of levels applies to more than one-half of medical/surgical benefits subject to the financial requirement or quantitative treatment limitation in the classification. The least restrictive level within the combination is considered the predominant level of that type in the classification. (For this purpose, a MCO, PIHP, or PAHP may combine the most restrictive levels first, with each less restrictive level added to the combination until the combination applies to more than one-half of the benefits subject to the financial requirement or treatment limitation.)
(iii)
(iv)
(v)
(2)
(ii)
(A) Office visits (such as physician visits); and
(B) All other outpatient items and services (such as outpatient surgery, facility charges for day treatment centers, laboratory charges, or other medical items).
(3)
(4)
(d)
(2)
(i) Medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or based on whether the treatment is experimental or investigative;
(ii) Formulary design for prescription drugs;
(iii) For MCOs, PIHPs, or PAHPs with multiple network tiers (such as preferred providers and participating providers), network tier design;
(iv) Standards for provider admission to participate in a network, including reimbursement rates;
(v) MCO, PIHP, or PAHP methods for determining usual, customary, and reasonable charges;
(vi) Refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is not effective (also known as fail-first policies or step therapy protocols);
(vii) Exclusions based on failure to complete a course of treatment;
(viii) Restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits for services provided under the MCO, PIHP, or PAHP; and
(ix) Standards for providing access to out-of-network providers.
(3)
(a)
(b)
(c)
(a)
(b)
(2) The State must ensure that all services are delivered to the enrollees of the MCO in compliance with this subpart.
(c)
(1) Require a MCO, PIHP, or PAHP to provide any mental health benefits or substance use disorder benefits beyond what is specified in its contract, and the provision of benefits by a MCO, PIHP, or PAHP for one or more mental health conditions or substance use disorders does not require the MCO, PIHP or PAHP to provide benefits for any other mental health condition or substance use disorder;
(2) Require a MCO, PIHP, or PAHP that provides coverage for mental health or substance use disorder benefits only to the extent required under 1905(a)(4)(D) of the Act to provide additional mental health or substance use disorder benefits in any classification in accordance with this section; or
(3) Affect the terms and conditions relating to the amount, duration, or scope of mental health or substance use disorder benefits under the Medicaid MCO, PIHP, or PAHP contract except as specifically provided in §§ 438.905 and 438.910.
In general, contracts with MCOs, PIHPs, and PAHPs offering Medicaid State plan services to enrollees, and those entities, must comply with the requirements of this subpart no later than October 2, 2017.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(a)
(b)
(ii)
(iii)
(2)
(ii)
(A)
(B)
(C)
(D)
(3)
(B)
(
(C)
(D)
(E)
(ii)
(B)
(
(
(iii)
(iv)
(4)
(ii)
(A) Medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or based on whether the treatment is experimental or investigative;
(B) Formulary design for prescription drugs;
(C) Standards for provider admission to participate in a network, including reimbursement rates;
(D) Methods for determining usual, customary, and reasonable charges;
(E) Refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is not effective (also known as fail-first policies or step therapy protocols);
(F) Exclusions based on failure to complete a course of treatment; and
(G) Restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits or services provided under the ABP.
(c)
(d)
(2)
(3)
(e)
(2)
(i) Require a State to provide any specific mental health benefits or substance use disorder benefits; however, in providing coverage through an ABP, the State must include EHBs, including the ten EHBs as required in § 440.347, which include mental health and substance use disorder benefits; or
(ii) Affect the terms and conditions relating to the amount, duration, or scope of mental health or substance use disorder benefits under the ABP except as specifically provided in paragraph (b) of this section.
(3)
(4)
(ii) [Reserved]
Sec. 1102 of the Social Security Act (42 U.S.C. 1302), unless otherwise noted.
Section 1102 of the Social Security Act (42 U.S.C. 1302).
(a)
(b)
(i) The State elects in the State child health plan to cover Secretary-approved coverage defined in § 457.450(a) that includes all EPSDT benefits, as defined in section 1905(r) of the Act, in accordance with the requirement applied under section 1905(r)(5) of the Act to provide necessary health care, diagnostic services, treatment, and other measures described in section 1905(a) of the Act to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, as well as the informing and administrative requirements under 1902(a)(43) of the Act and the approved State Medicaid plan; and
(ii) The State child health plan does not exclude EPSDT benefits for any particular condition, disorder, or diagnosis.
(2) The child health plan must include a description of how the State will comply with paragraph (b)(1)(i) of this section.
(3) If a State has elected in its state plan to cover EPSDT benefits only for certain populations enrolled in the state child health plan, the State is deemed compliant with this section only with respect to such children.
(c)
(1)
(2)
(i) Apply the aggregate lifetime or annual dollar limit both to the medical/surgical benefits to which the limit would otherwise apply and to mental health or substance use disorder benefits in a manner that does not distinguish between the medical/surgical benefits and mental health or substance use disorder benefits; or
(ii) Not include an aggregate lifetime or annual dollar limit on mental health or substance use disorder benefits that is more restrictive than the aggregate lifetime or annual dollar limit, respectively, on medical/surgical benefits. (For cumulative limits other than aggregate lifetime or annual dollar limits, see paragraph (d)(3)(iii) of this section prohibiting separately accumulating cumulative financial requirements.)
(3)
(4)
(A) Impose no aggregate lifetime or annual dollar limit, as appropriate, on mental health or substance use disorder benefits; or
(B) Impose an aggregate lifetime or annual dollar limit on mental health or substance use disorder benefits that is no more restrictive than an average limit calculated for medical/surgical benefits in the following manner. The average limit is calculated by taking into account the weighted average of the aggregate lifetime or annual dollar limits, as appropriate, that are applicable to the categories of medical/surgical benefits. Limits based on delivery systems, such as inpatient/outpatient treatment or normal treatment of common, low-cost conditions (such as treatment of normal births), do not constitute categories for purposes of this paragraph (c)(4)(i)(B). In addition, for purposes of determining weighted averages, any benefits that are not within a category that is subject to a separately-designated dollar limit under the plan are taken into account as a single separate category by using an estimate of the upper limit on the dollar amount that a plan may reasonably be expected to incur for such benefits, taking into account any other applicable restrictions under the plan.
(ii)
(d)
(ii)
(iii)
(2)
(ii)
(A)
(B)
(C)
(D)
(3)
(B)
(
(C)
(D)
(E)
(ii)
(B)
(
(
(iii)
(4)
(ii)
(A) Medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or based on whether the treatment is experimental or investigative;
(B) Formulary design for prescription drugs;
(C) For plans with multiple network tiers (such as preferred providers and participating providers), network tier design;
(D) Standards for provider admission to participate in a network, including reimbursement rates;
(E) Plan methods for determining usual, customary, and reasonable charges;
(F) Refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is not effective (also known as fail-first policies or step therapy protocols);
(G) Exclusions based on failure to complete a course of treatment;
(H) Restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits for services provided under the plan or coverage; and
(I) Standards for providing access to out-of-network providers.
(5)
(e)
(2)
(3)
(f)
(i)
(A) Medical/surgical benefits.
(B) Mental health benefits.
(C) Substance use disorder benefits.
(ii) [Reserved]
(2)
(i) Require a State plan or a MCE that contracts with a State plan to provide any mental health benefits or substance use disorder benefits, and the provision of benefits by a State plan or a MCE that contracts with a State plan for one or more mental health conditions or substance use disorders does not require the plan or health insurance coverage under this section to provide benefits for any other mental health condition or substance use disorder;
(ii) Affect the terms and conditions relating to the amount, duration, or scope of mental health or substance use disorder benefits under the State plan or a MCE that contracts with a CHIP State plan except as specifically provided in paragraphs (c) and (d) of this section.
(g)
(2) [Reserved].
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |